In the Matter of Section 18(1) of the Constitution and in the Matter of Bill Skate MP [2001] PGSC 6; SC678 (16 November 2001)

SC 678

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 4 OF 2001

IN THE MATTER OF S 18(1) OF THE CONSTITUTION OF PAPUA NEW GUINEA

AND:

IN THE MATTER OF THE HON BILL SKATE, MP
LEADER OF THE OPPOSITION

Waigani : Amet CJ, Injia & Sawong JJ
2001 : 16 November

CONSTITUTIONAL LAW – Special rights of citizens – Right to hold public office and to exercise public functions – Regulation of – Rights capable of regulation and restriction but not prohibition – s. 50(1) and (2).

STATUTES – Validity of – Qualifying qualified rights. - Manner and form requirements. - Constitution s. 38, 39 and 50(2).

Counsel:
G Shepperd, for the Referror.
A Jerewai, for Intervenor.
J Nonggor, for theRespondent/State.

16 November 2001

AMET CJ: The Applicant, who is the Member of the National Parliament for the National Capital District (NCD) filed this Reference under s. 18(1) of the Constitution seeking interpretation as to the constitutional validity of two amendments to the National Capital District Commission Act 1990 - (the Principal Act). He sought declaration that the National Capital District Commission (Amendment) Act 2001, (the First Amendment) and the National Capital District Commission (Amendment No. 2) Act 2001, (the Second Amendment), are unconstitutional on the following basis:

That the First Amendment purports to regulate the special rights of citizens under s. 50 of the Constitution in so far as it regulates or restricts the rights and the opportunity of the Applicant and others:

(a) to take part in the conduct of public affairs of the NCD Commission (NCDC) through freely chosen representatives, and
(b) to hold public office on the NCDC, and to exercise public functions as a Commissioner of the NCDC.

He submitted that as the amending acts purport to "regulate" those special rights each must comply with the requirements of s. 38 of the Constitution, and under s. 38(2), each must:

(a) be expressed to be a law that is made for the specified purposes, and
(b) specify the right or freedom it regulates or restricts, and
(c) be certified to have been made by an absolute majority

The following immediate facts, as agreed to, gave rise to the reference:

(1) On 5 December 2000, notice of the First Amendment was given in Parliament to amend the Principal Act. On 07 December 2000, the amendment bill appeared in the Parliament Notice Paper.

(2) On 07 October 2001, the National Court handed down its decision quashing the decision of the National Executive Council to withdraw the powers and functions of the NCDC on 7 September 1999.

(3) On 9 October 2001, the Parliament passed the First Amendment

(4) On 11 October 2001, the Clerk and Speaker of Parliament certified the First Amendment. On the same day, the First Amendment was published in the National Gazette No. G123, thus bringing it into force.

(5) Until the First Amendment came into force, the Applicant was a member of the NCDC by virtue of s. 4(1)(c) of the Principal Act.

(6) Section 2 of the First Amendment repealed s. 4 of the Principal Act relating to membership of the NCDC.

(7) The membership of the NCD members of Parliament on the NCDC was thus abolished by the repeal of s. 4 of the Principal Act.

(8) On 18th October 2001, the National Parliament passed the Second Amendment with 60 votes in favour and nil vote against.

The NCD is established by s. 4 of the Constitution. It provides that an Organic Law or an Act of Parliament shall make provision in respect of the NCD government. The Organic Law on Provincial Governments and Local-level Governments (the Organic Law) intended that the system of Provincial Governments would apply to the government of the NCD, upon notice being given to effect it. However no notice had been given to date. The Principal Act thus provides for the government of the NCD.

Various provisions of the Principal Act as amended by No. 15 of 1995 provided for the membership of the NCDC as follows:

Section 4 (1) provides that the NCDC shall consist of-

(a) the Governor; and
(b) the Deputy Governor;
(c) the members of the National Parliament representing each electorate; and

(d) two members of the Motu Koitabu Council; and

(e) subject to Subsection (2), the head and deputy head of each Local-level Government in each open electorate; and

(f) one person appointed by the Minister to represent each of the following interest groups:-

(i) women; and

(ii) the Port Moresby Chamber of Commerce; and

(iii) workers unions; and

(iv) the National Capital District Ecumenical Churches.

(2) Where there are no Local-level Governments in an open electorate or part of an open electorate, the members of the Commission referred to in Paragraph (e) shall comprise the head of each ward committee, not exceeding two, within the open electorate.

(3) The members referred to in Subsection (1)(b), (d), (e) and (f) shall-

(a) have resided in the National Capital District for a continuous period of four years immediately prior to appointment and shall continue to reside in the National Capital District during the period of appointment; and

(b) shall hold office for the period up to the date the writ is returned following the next General Election held after the coming into operation of the Organic Law on Provincial Governments and Local-level Governments.

(4) The members, other than the Governor or Deputy Governor, shall serve on a part-time basis and shall be paid such fees and allowances and receive such benefits as are determined by the Minister.

(5) Chairman and Deputy Chairman.

(1) There shall be a Chairman and a Deputy Chairman of the Commission.

(2) Subject to this Act, the Governor shall be the Chairman of the Commission and the Deputy Governor shall be the Deputy Chairman of the Commission.

(3) If the Governor is—

(a) on leave of absence; or

(b) absent from the National Capital District; or

(c) out of speedy and effective communication; or

(d) otherwise unable to perform or is not readily available to perform the duties of his office,

the Deputy Governor shall perform the functions and responsibilities of the Governor and the Chairman of the Commission.

(4) The Governor and Deputy Governor shall serve the Commission on a full-time basis (subject to their duties as members of the National Parliament) and shall—

(a) be paid such salaries and allowances; and

(b) be employed under such other terms and conditions,

as are determined by the Salaries and Remuneration Commission.

5A. The Governor and Deputy Governor.

(1) An office of Governor of the National Capital District and an office of Deputy Governor of the National Capital District are hereby established.

(2) Subject to this Act, the member of the National Parliament representing the National Capital District provincial electorate shall be the Governor.

(3) The head of the Motu Koitabu Council shall be the Deputy Governor.

(4) The Commission may, by notice in the National Gazette, declare that the offices of Governor and Deputy Governor shall be known by such other title as to the Commission seems appropriate and where a declaration has been so made the Governor and Deputy Governor shall be known as and referred to by the titles specified in the declaration and all references in this Act to the Governor and Deputy Governor shall be read accordingly.

5B. Vacation of office of the Governor.

(1) If the Governor—

(a) is dismissed from office in accordance with Section 5C; or

(b) is appointed—

(i) a Minister or a Vice-Minister in the National Government; or

(ii) the Speaker or Deputy Speaker of the National Parliament; or

(iii) the Leader or Deputy Leader of the Opposition in the National Parliament; or

(iv) the Chairman of the Permanent Parliamentary Public Works Committee; or

(v) the Chairman of the Permanent Parliamentary Public Accounts Committee; or

(vi) to an office which has powers and privileges equivalent to those of a Minister; or

(c) is otherwise disqualified by law or ceases to be a member of the Commission or of the National Parliament, he shall be deemed to have vacated the office of the Governor.

(2) Where the Governor is a member of the National Parliament, other than the member of the Parliament representing the National Capital District provincial electorate, he shall be deemed to have vacated the office of the Governor, if he—

(a) is dismissed from office in accordance with Section 5C; or

(b) is appointed to any of the offices referred to in Subsection (1)(b); or

(c) is otherwise disqualified by law or ceases to be a member of the Commission or of the National Parliament.

(3) Where the Governor vacates his office in accordance with Subsection (1)(a) or (b), or (2)(a) or (b), he shall continue to hold office as a member of the Commission, but is not eligible to be appointed as the Governor for the balance of his term of office in the Commission.

(4) Notwithstanding Subsections (1) and (2), the Governor shall continue in office until the election of the next Governor.

(5) For the purposes of Subsection (1)(b)(vi), the National Executive Council may determine whether an office is an office to which that subparagraph applies.

5C. Dismissal of Governor.

(1) Subject to this section, the Commission may by a two-thirds absolute majority vote, dismiss the Governor from office.

(2) The dismissal of the Governor shall be by motion—

(a) which shall be expressed to be a motion to dismiss the Governor; and

(b) of which not less than one week's notice signed by the number of members of the Commission, being not less than one-quarter of the total membership of the Commission, has been given in accordance with the procedures of the Commission.

5D. Election of the Governor in the event of vacancy.

(1) Subject to Subsection (3), if the Governor vacates his office in accordance with Section 5B(1), the Commission shall, from amongst the members of the Commission who are members of the Parliament, elect the Governor.

(2) Subject to Subsection (3), if the Governor elected under Subsection (1) vacates his office in accordance with Section 5C, the Commission shall elect another member of the Parliament to be Governor.

(3) Where—

(a) a vacancy exists in the office of the Governor; and

(b) all of the members of the Parliament—

(i) hold executive office in the National Government or the Parliament; or

(ii) are otherwise disqualified by law, the Commission shall, from amongst the members referred to in Section 4(1)(b), (d) and (e) elect the Governor.

(4) Where the Governor elected under Subsection (3) is a representative from the Motu Koitabu Council, the Deputy Governor shall be elected from amongst the members referred to in Section 4(1)(e).

5E. Political and executive responsibilities of the Governor and Deputy Governor.

The Governor, or in his absence the Deputy Governor, shall—

(a) be politically responsible to both the Commission and the National Parliament for the government of the National Capital District; and

(b) be constitutionally responsible to the Minister.

The First Amendment, by s. 2 repealed s. 4 of the Principal Act, thus abolishing all the previous positions of the members of the NCDC, including in particular the ex-officio membership of the Members of National Parliament. The new s. 4 provided for six members of the NCDC only, five to be appointed by the Head of State, acting on advice and the sixth was to be the Chairman of the Motu Koitabu Council, ex-officio. Section 5 provided that the Head of State, acting on advice, would appoint one of the members of the Commission to be the Chairman and another to be Deputy Chairman.

The Second Amendment, by s. 3 further amended s. 4 of the Principal Act by repealing subsection (1) and restored the Members of the National Parliament and the Chairman of the Motu Koitabu Council as ex-officio members of the NCDC.

The first issue is whether s. 50(1)(e) applies to the positions held by the Applicant and the other Members of Parliament and the Governor and Deputy Governor as members of the NCDC. It states that "every citizen who is of full capacity and has reached voting age, ........ has the right, and shall be given a reasonable opportunity ...... (e) to hold public office and to exercise public functions." It was agreed by the State, and I am so satisfied, that the position of member of the NCDC is a "public office" within the meaning of s. 50(1)(e). The Applicant and other Members of the National Parliament and the Chairman of the Motu Koitabu Council enjoyed existing rights as members of the NCDC, until the First Amendment abolished their positions.

The next issue therefore is if the amendments purported to ‘regulate’, ‘restrict’, ‘prohibit’ or ‘abolish’ the exercise of that right, whether they must comply with the requirements of s. 38 and or s. 50(2) of the of the Constitution.

Section 38 provides for general qualifications on qualified rights in the following terms:

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

As to what is ‘reasonably justifiable in a democratic society’ s. 39 stipulates the following:

(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.

(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to-

(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the country; and

(g) laws, practices and judicial decisions and opinions in other countries; and

(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other similar organizations; and

(j) any other material that the court considers relevant.

Section 50(2) states that:

The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. (underlining added).

The State responded that Bill Skate and Philip Taku were not deprived of holding a public office because they were elected to be Members of the National Parliament and they still occupy and exercise functions in respect of that public office. To exclude them from holding office as a member of the NCDC is not denying them any right to hold public office or to exercise public functions. The State argued that in any event the Second Amendment restored the members of National Parliament to the office of member of the NCDC ex-officio. The State submitted that the amendments needed to comply with s. 50(2) and not s. 38. The Second Amendment did in fact comply with the requirements of s. 50(2), in the following terms in s. 1:

For the purposes of any regulation to the right to vote and stand for public office contained in Section 50 (right to vote and stand for public office) of the Constitution, it is hereby declared that this law is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind.

I accept the State submission that s. 50(2) applies to the "regulation" of a s. 50(1) right, and not specifically s. 38. But, as will become apparent in my reasoning, the rationale and general purposes and other requirements of s. 38 and s. 39 are applicable to the requirements of s. 50(2) and imported by necessary implication because of the use of common terminology in s. 50(2).

I accept the authority of the decision in SCR No. 2 of 1982 [1982] PNGLR 214 where the Court decided that " the procedural requirements of s. 38 (2) apply to those qualified rights contained in ss. 43, to 49. The rights contained in s. 50 are special rights of citizens, and an ordinary law which seeks to regulate them must comply with s. 50(2)."

RIGHTS MAY BE REGULATED

The first legitimate qualification is that such a law may only "regulate" the exercise of this special right. I refer to and adopt what Kearney, DCJ said in SCR No. 2 of 1982 (supra), as apposite to this issue:

I deal first with the first submission on s. 50(2), which distinguishes between "restricting" and "regulating". Mr. Doing submitted that s. 50(2) does not permit any restriction of the right to have a reasonable opportunity to stand for election; that is, that "regulation" does not extend to "restriction" and that the requirement of K1,000.00 deposit is a restriction. He relies on the distinction between "regulating" and "restricting" apparently drawn in the Constitution, ss. 44-49, 51 and 52. I do not think that submission is valid. In the ordinary use of language, "regulate" does not include "prohibit". ..... And the Constitution, Sch. 1.20, makes it clear that a law passed under the Constitution, s. 50(2), cannot, under the guise of regulating, in law or in effect prohibit the exercise of the s. 50(1) rights. .....The difference between regulating and restricting is one of degree, not of kind, and I think the distinction is this: that the power to restrict in those provisions can extend to prohibition, while the power to regulate in s. 50(2) cannot.

In my opinion the First Amendment has in fact "prohibited" the continued exercise of this special right into the future by "abolishing" the positions. The First Amendment therefore has failed to comply with this minimum first requirement, and because of this alone it is unconstitutional and invalid.

The other requirements of s. 50(2) only become necessary to consider if this first precondition has been complied with. It is however instructive for future purposes so I deal with the other requirements briefly.

FOR THE PURPOSE

The second important pre-condition that needs to be complied with is that the law must specify the "purpose" for which it "regulates" the special rights. Section 50(2) does not contain any guidance as to the kinds of "purpose/s" for the achievement of which the law may "regulate" the rights. It is relevant therefore to refer to the purposes specified in s. 38(1), for which a law may "regulate" or "restrict" the exercise of a qualified right or freedom under Subdivision C. It stipulates that the regulation or restriction might be "for the purpose of giving effect to the public interest in defence, public safety, public order, public welfare, public health (including animal and plant health), the protection of children and persons under disability (whether legal or practical) or the development of under-privileged or less advanced groups or areas."

Section 38(2) stipulates that the law that is intended to regulate the right "must be expressed to be a law that is made for that purpose, and specify the right or freedom that it regulates or restricts." Again, I consider this requirement to be relevant to s. 50(2). The First Amendment simply does not comply with any of the requirements of s. 50(2). In s. 1 of the Second Amendment some effort was made to comply with this requirement. It however does not go far enough. It does not specify the purpose or purposes or reasons why it is considered necessary to regulate the exercise of such special rights.

It is for good reasons of transparency and accountability that if the Executive or the Legislature proposed to "regulate" the exercise of any of the qualified or special rights, it sufficiently explain and inform the members of the public what those purposes are.

REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY

The third important requirement that such a law needs to comply with is that the purpose or purposes for which it is considered necessary to regulate such rights, must be demonstrated to be "reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind." Again, s. 39 gives ample guidance as to what matters may be taken into account in determining this requirement. It is not sufficient to simply quote the terms of s. 50(2) as the Second Amendment has done.

Again, I consider that the prevailing circumstances that precipitated the desirability or the necessity of the "regulation" will be given indication of in the specification of the purpose or purposes why the law was being proposed.

In The State v. NTN PTA Limited [1992] PNGLR 1, I agreed with what Barnett J said as to what is reasonably justifiable in a democratic society, for the purposes of s. 38(2). I adopt what was said as entirely relevant and applicable to the same requirement under s. 50(2). His Honour said:

The test or question for the Court is whether the Act itself, as enacted by the National Parliament is reasonably justifiable in a democratic society in today’s circumstances.
........

........

For very good reasons s 38 of the Constitution provides that a law which is intended to regulate or restrict a constitutional right must very carefully follow certain prescribed formalities. These are designed to bring to the attention of members of the National Parliament that the Bill before them is intended to regulate or restrict one of the freedoms guaranteed by the Constitution and the reason why it is desirable to do so. The formalities are also designed to alert the public and special interest groups about what is being attempted and why. Not only is it expressly provided that the Bill must specify what freedom is being restricted but, on a fair and liberal meaning of the section, it must also clearly be specified which of the allowable listed purposes it is sought to achieve by this restrictive law.

Unless the purpose for the regulation or restriction is also clearly stated (in this case "the public interest in public welfare"), citizens whose rights have been affected will not be in a position to assess whether the law complies with the Constitution or not; they could be uncertain whether to outlay the expense to challenge the law if the State could be quietly sitting on the knowledge that the true, but unstated, purpose was (for instance) defence or public order.

Having A Proper Regard For The Rights And Dignity of Mankind

The next requirement is that, for the law regulating the rights to be reasonably justifiable in a democratic society, for the allowable purpose or purposes it seeks to achieve, it must have "proper regard for the rights and dignity of mankind". I consider that some of the factors to be taken into account in respect of this might be; the timing of enactment of the law and its commencement and the affect it may have on any persons then enjoying the exercise of those rights. For instance, in the facts of this reference whilst the ex-officio members of the NCDC were holding that public office and exercising functions in relation to it, did the legislature have "proper regard for the in rights and dignity when it abolished that office. I do not think the passage of the law, in these circumstances, would have complied with this requirement to have proper regard for the rights and dignity of members to be affected.

In the circumstances both amendments have failed to comply with any of these minimum requirements. The First Amendment had abolished the right under s. 50(1)(e) contrary to s. 50(2), which permits regulation only. If the Second Amendment is capable of rectifying this defect in the First Amendment, which it is not, it has not sufficiently complied with these requirements and so it is unconstitutional and invalid. For a more fundamental reason the Second Amendment cannot stand. It can only properly amend the Principal Act, as amended, if the First Amendment is valid. Because the First Amendment is invalid, the basis for the purported amendment in the Second Amendment did not exist; therefore the Second Amendment falls as well.

INJIA J: The questions referred to us and the background circumstances of this reference are adequately set out by the Chief Justice. The challenge to the two amendments, both of which purport to regulate the rights of the Governor and his deputy conferred by s.50 of the Constitution (right to vote and stand for public office), is mounted firstly on the basis that they both fail to comply with the formal requirements of s.38(2) of the Constitution and secondly, that they fail to comply with s.4 and s.187 of the Constitution. In relation to s.38, it is clear to me that Counsel for the referrer appear to concede, and rightly so in my view to the submission by counsel for the State and the Parliament Dr. Nongorr, that the general qualification on qualified rights contained in s.38(2) does not apply to the qualified right contained in s.50. The only qualification to s.50, apart from any express limitation imposed by the Constitution on s.50, is that found in s.50(2). The same interpretation was accorded to s.50 by this Court in SCR Ref. No. 1 of 1992 [1992] PNGLR 73 at 82 and I see no reason to depart from that interpretation.

In relation to s.50(2), the point was fully argued before us, notwithstanding the fact that the reference is not premised on s.50(2). As the issue was raised before us, particularly by Dr Nongorr, and fully argued before us, I am prepared to determine the constitutional validity of these two amending legislation on the basis of s.50(2).

Section 50 provides:

50. Right to vote and stand for public office

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who –

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purpose of this paragraph,

has right, and shall be given a reasonable opportunity –

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives;; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

The phrase "reasonably justifiable in a democratic society that has proper regard for the rights and dignity of mankind" (hereinafter referred to as "the phrase") in s.50(2) is also found in s.38(1). I set out s.38 in full hereunder:

38. General qualifications on qualified rights

(1) For the purpose of this Subdivision, a law that complies with the requirements of this section is made and certified in accordance with Subsection (2), and that –

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary-

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in –

• (A) defence; or
• (B) public safety; or
• (C) public order; or
• (D) public welfare; or
• (E) public health (including animal and plant health); or
• (F) the protection of children and persons under disability (whether legal or practical); or
• (G) the development of under-privileged or less advanced groups or areas;
  

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another, to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must –

(a) be expressed to be a law that is made for that purpose; and
(b) specify the right or freedom that it regulates or restricts; and
(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

Section 39 provides that the question of whether a law is "reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind" is to be determined in the light of the circumstances obtaining at the time the decision on the question is made, taking into account democratic principles embodied in various materials enumerated in s.39(3).

It is clear to me that except for the use of the words "respect" in s.38(1) and "regard" in s.39 and s.50(2) both of which in my view are synonymous, the phrases used in s.38(1) and s.50(2) are identical. The phrase "reasonably justifiable in a democratic society" in the context of s.38 was considered by this Court in SCR No. 2 of 1982 [1982] PNGLR 214, SCR Ref. No. 1 of 1992, supra, and The State v. NTN Pty Ltd [1992] PNGLR 1; whereas the phrase in the context of s.50(2) have not been previously considered by this Court. Nonetheless, I consider that the interpretation accorded to the phrase in s.38(1) ought to equally apply to the same phrase in s.50(2), with appropriate modification where necessary. We see no justifiable reason why the interpretation accorded to the phrase in s.38(1) in those cases should not be extended to the same phrase in s.50(2).

It is convenient at this juncture to set out a short summary of the principles enunciated in those cases regarding the interpretation of s.38. There are two requirements in s.38 which a law must satisfy. First, the law must strictly comply with the formal requirements of s.38(2). Failure to comply with the formal requirements of s.38(2) may result in the whole law being declared invalid: The State v. NTN, supra, at 7-8. The law must clearly set out the particular public purposes enumerated in s.38(1) for which the law is made, the freedom or rights regulated or restricted, and the reasons why it is necessary for the law to regulate or restrict that right. It is not sufficient compliance with s.38 to merely set out the qualified right affected by the law and simply say the new law is to regulate that right and declare that the law is reasonably justifiable in a democratic society: The State v. NTN Pty Ltd, supra, per Kapi Dep. CJ at p.7; per Barnett J, at p. 18-19.

Secondly, the law must comply with the substantive requirements of s.38, namely, the regulations or restrictions contained in the law must not only be "reasonably necessary" for achieving the public purposes listed in s.38(1) but also reasonably justifiable in a democratic society having proper regard or respect for the rights and dignity of mankind. As to whether a law meets this substantial requirement is to be determined in the light of the circumstances of each case. The constitutional validity of a law is assumed, but when its validity is challenged, the party questioning its validity must establish a prima facie case. Once a prima facie case is established, the onus then shifts to the party relying on the law’s validity to show that the law complies with the requirements of s.38(2). The onus is on the State or the Parliament to provide materials to support the law which seeks to regulate or restrict a qualified right under s.50(1). Wherever the phrase "reasonably justifiable in a democratic society" appears such as in s.38 or under s.50(2), the onus is the same. The test is an objective one: SCR No. 2 of 1982, supra, per Kapi J. at p.238-239).

In my view, the above principles equally apply to s.50(2) in regard to a law which seeks to regulate a right contained in s.50(1). In relation to the formal requirements of s.50, the law must specify the purpose for which the law is enacted, the particular right(s) set out in s.50(1)(c)-(e) regulated by the law, and why the right is regulated and why the law is considered by the legislator to be "reasonably justifiable in a democratic society". The reasons for this requirement have been adequately set out by Barnett J, in State v. NTN Pty Ltd, supra, and I need not repeat them here.

In relation to the substantive requirements under s.50(2), the provisions of the law must clearly demonstrate, that the regulation of the right is "reasonably justifiable" for the purpose for which the law is enacted, and that such regulation is reasonably justifiable in a democratic society.

In the present case, it is accepted by all parties that the two amendments regulate the rights of elected representatives of the National Capital District in the National Parliament and the Motu-Koitabu Council who held the position of the Governor or Deputy Governor, offices established by the Constitution and the Organic Law on Provincial and Local Level Governments, and previously held under s.4 and s.5 of the Principal Act, from exercising or performing their functions which come with the office, by removing those offices. Therefore, the rights of the referors under s.50(1)(e) are affected.

The first issue is whether the first amendment complies with the formal requirements of s.50(2). It is apparent from submissions made to us by the parties that this amendment contains no reference to the right contained in s.50(1)(c)-(e) and the qualification in s.50(2). Therefore, this amendment is invalid in its entirety. Having reached this conclusion, it is not necessary to determine whether the first amendment complies with the substantive requirements of s.50(2).

The second issue is whether the second amendment complies with the formal requirements of s.50. Dr. Nongorr submits the second amendment is not affected by the first amendment because it amends the principal Act as unaffected by the first amendment. He submits even if the first amendment falls, the second amendment stands on its own. And he goes on to submit that s.1 of the second amendment sufficiently complies with s.50(2).

Section 1 of the second amendment provides:

"For the purpose of any regulation of the right to vote and stand for public office contained in Section 50 (right to vote and stand for public office), of the Constitution, it is hereby declared that this law is reasonably justifiable in a democratic society that has proper regard for the rights and dignity of mankind".

In my view, the second amendment clearly amends the principal Act as amended by the first amendment. This is evident from references in the second amendment to provisions of the first amendment e.g. see s.3(b)-(c) of the second amendment. Therefore, the second amendment should also fall with the first amendment.

Even if the second amendment stands on its own, I am satisfied that mere reference in s.1 of the second amendment to the right contained in s.50 and a mere declaration in terms of the phrase in s.50(2) does not comply with s.50(2). Also the second amendment does not specify the right under s.50(1)(c)-(e) regulated and the purpose why the exercise of that right is regulated, and why the regulation of that right is reasonably justifiable in a democratic society.

Further there is a fundamental breach of s.50(2) by this amendment. Section 50(2) speaks of the "regulation" (or "restriction") of the right in s.50(1) which is permissible and not "prohibition" of the exercise of the right which is not permissible: SCR No. 2 of 1982; at p. 225 per Kearney Dep CJ. In this respect, we accept the submissions of Mr Shepherd and Mr Jerewai that the second amendment prohibits the Governor and his Deputy from performing the functions of the office of the Governor and Deputy Governor established by s.50(2)(e) of the principal Act. The removal of the constitutional offices of the Governor and his Deputy from the Commission amounts to a prohibition on the holder of those constitutional offices from performing the functions of their respective offices. This kind of prohibition cannot be justified under s.50(2).

In relation to the substantial requirements of s.50(2), it is submitted by Dr. Nongorr that it is permissible in any democracy for the Parliament to enact legislation removing any person from occupying a public office and performing the functions of that office. However, I am are of the view that no democratic government can legitimately prevent an elected representative who holds office created by statute from exercising the functions of his office, for whatever reason. I am satisfied that whilst the referor has established a prima facie case of unjustified regulation or prohibition against the exercise of their rights under s.50(1)(e), the State or the Parliament has failed to discharge their onus of demonstrating either on the face of the record or by producing evidence and other material enumerated in s.39(3), that the regulation or prohibition is reasonably justified in a democratic society. For these reasons, I declare that the second amendment is also invalid.

Having reached the foregoing conclusion, it is not necessary to determine the question of whether the two amendments comply with s.4 and s.187 of the Constitution.

SAWONG, J: The facts and the relevant questions in this reference have been adequately set out by the Chief Justice. I have also read the opinion of the Chief Justice and Justice Injia and I agree with the reasons and conclusions that they propose. I only wish to add a few remarks of my own in respect of s. 50(2) of the Constitution.

The Referror in this reference has asked this court to give its opinion on two questions relating to the interpretation and/or application of the two Acts referred to earlier. In essence, the Referror seeks declaratory orders from this court that the Nation Capital District Commission (Amendment) Act 2001 (the first amendment) and the National Capital District Commission (Amendment No. 2) Act 2001 (the second amendment) are unconstitutional as they are inconsistent with s. 38 and s. 50 of the Constitution.

Counsel for the referror made submissions that the two Acts have not complied with those provisions of the Constitution and that they are therefore unconstitutional.

Counsel for the respondent submitted that s. 38 (1), (2) do not apply to s. 50 of the Constitution. He submitted that, that being the case the Acts were made valid and constitutional.

It was further argued by the Respondents that s. 38 (2) of the Constitution does not apply to the rights under s. 50 of the Constitution.

In respect of s. 38 of the Constitution, I agree with the principles and reasons given by the Chief Justice and Injia J.

As I have said earlier, I confine my remarks to s. 50 of the Constitution. Section 50 reads as follows:

"50. Right to vote and stand for public office.

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

• (a) is under sentence of death or imprisonment for a period of more

than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind."

Section 50 of the Constitution gives special rights to citizens of this country. The rights guaranteed under s. 50 are special rights given to all citizens, except those specified by s. 50 (1)(a)(b). As Kapi J (as he then was) expressed in SCR 2 of 1982 at 233 – 234 –

"The right guaranteed under s. 50 is a special right given to all citizens. Every citizen has this right except those persons who are excepted under s. 50 (1)(a), (b). Section 50 not only gives the right but gives an enabling provision so as to give the citizens "a reasonable opportunity" to meaningfully exercise that right... It is clear from the provisions of s. 50 of the Constitution that citizens not only have the right to elective public office but there is a directive principal which directs the law making body to ensure that all citizens are given the opportunity meaningfully to exercise the right.

The reasonable opportunity to exercise the right under s. 50(1) may be regulated by a law under s. 50(2) of the Constitution. For a law to be within the provisions of s. 50(2)-

(a) to the extent that it regulates, it must be a law that is "reasonably justifiable for the purpose the democratic society that has proper regard for the rights and dignity of mankind";

(b) can only regulate the exercise of the right but cannot prohibit or take away the rights from any class or group of citizens. A law, which has this effect, is not allowed; (see schedule 1.20 of the Constitution".

The Supreme Court in Supreme Court Ref. No 1 of 1992 [1992] PNGLR 73 confirmed this view. The Court at pp 76 - 77 said:

"Section 50(1) of the Constitution commences with the words:

"Subject to the express limitations imposed by this Constitution, ..." and provides as a special right of citizens of full capacity and who have reached voting age (subject to some exceptions) that they have the right, and shall be given a reasonable opportunity to be elected to public office at genuine, periodic, free elections. By s. 50(2) this right may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

The wording of s. 50, "Subject to the express limitations imposed by this Constitution", is important because it means that the special rights of citizens contained in s. 50 can only be limited by the Constitution itself. Sections 8, 9 of the Constitution in defining the laws of Papua New Guinea draw a distinction between "This Constitution" and the Organic Laws and all other laws. Whilst an organic law is a constitutional law (Sch 1.2), it cannot expressly limit the rights in s. 50 of the Constitution although it may regulate those rights due to s. 50(2)."

The rights under s. 50 are qualified rights of citizens. Only a citizen is entitled to exercise these rights and are entitled to seek their enforcement where there is a breach.

The right to stand for and hold public office is a qualified right and therefore Parliament may enact appropriate legislation to regulate that right. However it cannot by legislation prohibit or take away those rights.

The special rights given to the citizens may be regulated by a law that is reasonably justifiable for the purpose in a democratic society. A law that is intended to regulate any of those special rights in s. 50 must state the right that is to be regulated, and state the purpose why it intends to do so. It must also state why it is "reasonably justifiable in a democratic society" to do so.

Such a law cannot prohibit or take away any of those rights - if it does so, then it would contravene s. 50(2) and thus would be invalid.

In the present case the first amendment has not complied with s. 50(2) of the Constitution. It does not state which of the rights are to be regulated and for what purpose the law seeks to regulate. In effect the first amendment seeks to prohibit or take away the rights of the referror and others prescribed in s. 50(1). This is clearly prohibited by s. 50(2). A law can only regulate those rights – it cannot prohibit or take away the exercise of the rights. Thus in this case the first amendment cannot stand as it violates s. 50(2) of the Constitution.

In relation to the arguments raised by Dr Nonggor in respect of the second amendment, it too can not stand. That submission stems from the misconception that the second amendment was made to amend the first amendment. First the second amendment stems from the first amendment. As the first amendment is invalid, it follows that the second amendment is invalid. But, as the first amendment had not complied with either s. 38 or s. 50 of the Constitution, the second amendment as a matter of law cannot stand as the very basis of that amendment stems from the first amendment.

Secondly, even if the second amendment purported to comply with s. 50, it does not comply with s. 50(2) of the Constitution as it does not state the particular right (s) and the purpose for which the rights set out in s. 50(1) are sought to be regulated.

For these reasons I would find that both amendments are unconstitutional and invalid.
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Lawyer for the Referror : Maladinas Lawyers.
Lawyer for the Intervenor : Jerewai Lawyers.
Lawyer for the Respondent/State : Nonggor & Associates.