In the Matter of Section 18(1) of the Constitution and Bill Skate MP [2002] PGSC 18; SC680SCReferenceNo12of2001 (20 February 2002)

SC680
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REFERENCE NO. 12 OF 2001

In the Matter of Section 18(1) of the Constitution
In the Matter of the Hon Bill Skate MP

Waigani : Amet CJ, Hinchliffe, Sheehan, Injia & Sawong JJ
2002 : 4, 18 January, 13 & 20 February

CONSTITUTIONAL LAW – Validity of National Capital District Commission Act 2001 – Whether Act inconsistent with Organic Law on Provincial Government and Local-level Government: Constitution, Section 4(4); Organic Law on Provincial Government and Local-Level Government, Preamble and s.4.

Counsel:
G Sheppard, for Referror.
G M Egan with Dr J Nonggor, for Respondent/State.

20 February 2002

AMET CJ: This is a Constitution Section 18(1) reference by the Honourable Bill Skate (the Referror), Member of the National Parliament for the National Capital District (NCD) Electorate, and a Member of the National Capital District Commission (NCDC), seeking interpretation as to whether the National Capital District Commission Act 2001 (the Act) passed by the National Parliament on 11 December 2001, is constitutional.

The Historical Circumstances

The NCD was administered by the NCD Act 1990 (the Principal Act). In 1995 the National Constitution was amended to add Part VIA, bringing into existence the Provincial Government and Local – Level Government System. The Organic Law was thus enacted to give effect to it. It did not apply to the NCD immediately and Parliament simultaneously enacted amendments to the Principal Act incorporating similar provisions to the Organic Law for the representation of the Members of the National Parliament on the NCDC, in the same way as Members of Parliament in other provinces who were enabled to be members of their provincial governments under the Organic Law.

The NCD thus was governed since 1995, in the same way as other provinces, by the member for the NCD automatically being entitled to be Governor ex-officio, and in the event of his vacating the office of Governor then another member of the National Parliament representing a constituency of the NCD, was entitled to be elected Governor.

Parliament in 2001 attempted to amend the Principal Act, to abolish the representation of the NCD Members of Parliament on the NCDC. This was attempted by NCDC Act (amendment No 1) and NCDC Act (amendment No 2). Both of these were invalidated by this Court as being unconstitutional, principally for not complying with the requirements of s. 50(2) of the Constitution.

The Act, the subject of this reference is the direct result of the striking down of the attempts to amend the Principal Act. It has now totally repealed the Principal Act. It has thus removed the provisions for the representation of the Members of National Parliament for NCD on the NCDC as full members, with the corresponding rights and duties that Members of National Parliament for other provinces have under the Organic Law. The Members of National Parliament for NCD now only hold office as ex-officio members of the NCDC.

The Member of Parliament for NCD is now not qualified to be Governor ex-officio, nor is another Member of Parliament for NCD eligible to be elected Governor in the event that the Member for NCD vacates the office of Governor.

The Referror has contended that the Act is unconstitutional on two grounds:

(i) it is inconsistent with the Organic Law on Provincial Governments and Local Level Governments (the Organic Law); and

(ii) it is inconsistent with Sections 55 and 39 of the Constitution, in that it discriminates against the citizens of the National Capital District in relation to the form of government they are entitled to have, and therefore "it is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind," having regard to the particular circumstances in which the Act was enacted by Parliament to change the form of government for the citizens of the National Capital District.

The Referror’s Submission

The Referror submitted that whilst s. 4(4) of the Constitution provided that ‘an Organic Law or an Act of Parliament shall make provision in respect of the government of the National Capital District’, the existing Organic Law, per s. 4(4) envisaged that it shall apply also to the NCD, and therefore any Act of Parliament which purports to make provision for the Government of the NCD inconsistent with it would be unconstitutional. It was also argued in support of this proposition that s. 4(5) of the Constitution conferred upon the NCD the status of a province under the scheme of provincial governments created by Section 187A of the Constitution, and therefore any form of government which is inconsistent with provincial government under the Organic Law would be unconstitutional. Alternatively, the Referror has submitted that the Act is inconsistent with s. 55 of the Constitution, because it discriminates against the citizens of the NCD in the system of political government they shall have as opposed to other citizens in the rest of the country, who are government by the system of provincial government established under the Organic Law.

Furthermore, it was argued that to so change the system of government for the people of the NCD, by the Act, at the time that the legislature did, is ‘not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind’ and is therefore contrary to s. 39 of the Constitution.
The State’s Submissions
The State’s response was that Constitution s. 4(4) sufficiently disposes of the Reference. That is that because the Constitution permits for the government of the NCD to be provided for by either, an Organic Law or an Act, Parliament had resolved that it shall be by an Act. Although the Organic Law was previously passed by Parliament, it stipulated in the Preamble that it shall come into operation upon notice being published in the National Gazette, by the Head of State, acting with and in accordance with the advice of the Minister. It was submitted that the Organic Law does not yet apply to the NCD because no such notice has yet been given and so the Act is valid. The Reference must therefore fail.

In respect to the issue whether the Act is inconsistent with s. 55 of the Constitution by creating inequality between citizens of the NCD and citizens of other provinces, the State submitted that because of the demographic circumstances of the NCD, it was justifiable under s. 39, to so vary the manner in which the citizens of the NCD may be governed, as distinct from how citizens of other provinces may be governed. It was submitted that the Act was therefore reasonably justifiable in a democratic society to change the form of government for the NCD at this time.

Judgement
Is the Act inconsistent with the Organic Law?

Section 4 of the Constitution establishes the NCD and s. 5 provides for the declaration of provinces.

Section 4 - National Capital District.
(1) There shall be a National Capital District.

(2) The Seat of Government shall be in the National Capital District.

(3) The boundaries of the National Capital District shall be as defined by an Organic Law.

(4) An Organic Law or an Act of the Parliament shall make provision in respect of the government of the National Capital District.

(5) In calculating the number of provincial electorates in accordance with Section 125 (electorates), the National Capital District shall be taken into account as if it were a province.

Section 5 - Provinces.

(1) An Organic Law may declare, or make provision in respect of the declaration of, part of the country as provinces.

In my opinion, it was clearly the intention of Parliament in 1995 that the Organic Law shall apply to the NCD, conditional only upon notice being given in the National Gazette by the Head of State, acting with the advice of the Minister. That notice has not been given since 1995, and consequently the Organic Law does not apply to the NCD. I affirmed this fact in SCR No. 4 of 2001 (supra).

Notwithstanding this, I am of the opinion that the Act is nevertheless inconsistent with the intent and spirit of the constitution as reflected in the National Goals and Directive Principles and Part VIA of the Constitution, and the Organic Law on decentralized form of lower level political government. I belief it is, for the following reasons.

The Organic Law, in its Preamble declared that it was to implement Part VIA (Provincial Governments and Local-level Governments) of the Constitution by making provision for and in respect of a system of Provincial Governments and Local-level Governments for the provinces, pursuant to the Second National Goal (Equality and Participation) of the National Goals and Directive Principles of the Constitution.

Section 4(5) of the Constitution also equated the NCD with a province, for the calculation of the number of provincial electorates for representation in the National Parliament and consequential government structures.

In my opinion Parliament gave meaning to this general spirit of the constitution for the general framework of lower level government when, whilst the Organic Law did not yet apply to the NCD, it made amendments to the Principal NCD Act 1990 in 1995 bringing the NCD government into line with the other provinces, as the Organic Law in fact intended. The principal provisions of the amendments incorporated similar provisions as in the Organic Law for the representation of Members of Parliament on the NCDC as Members of Parliament were on their respective Provincial Governments. The principal provision being that the national Member of Parliament representing the NCD was ex-officio the Governor of NCD, the equivalent of provincial members for provinces also being ex-officio Governors. These issues were the subject of the judgment in SCR No. 4 of 2001 (supra).

Is the Act inconsistent with Constitution s. 55

Section 55 provides that "subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex".

Does the Act discriminate in the provision of a system of government for the citizens of the NCD that is not the same as applicable to citizens in the other provinces under the Constitution and the Organic Law, and is thus inconsistent with s. 55 of the Constitution?

I am of the opinion that the Act offends against the provisions of s. 55. It provides for a system of lower level government for the citizens and people of the NCD that discriminates against them, in respect of their rights and privileges in the following ways.

Firstly, it discriminates against the Members of the National Parliament representing citizens and residents of the NCD in their representation on the NCDC, which is not "equal" to other Members of National Parliament for other provinces. The Act retains the NCD Members of Parliament as ex-officio members of the NCDC, but has repealed the rights in the member for the NCD to be ex-officio Governor and the rights in other members of Parliament representing electorates in the NCD to serve as Governor should the office of governor be vacant. This right and privilege to hold public office as a member of the NCDC was upheld in SCR No. 4 of 2001 (supra). I concluded that it may be regulated but it could not be "abolished". It is retained but in a form that is not equal to other members of National Parliament for other provinces. The rights and privileges of NCD Members of Parliament and the citizens to be represented in the National Parliament remain intact and are unaffected.

However, secondly, I consider that the Act discriminates against the citizens of NCD in the exercise of their rights and privileges to have their members of the National Parliament represent them on the NCDC. The citizens of NCD are entitled to the same rights and privileges as citizens of other provinces to have their members of National Parliament represent them fully in the government of the equivalent lower level government to the provincial government, the NCDC. That full right and privilege in the citizens has been abolished. The member for NCD cannot now represent the citizens of NCD as their Governor as can the provincial member for a province.

I do not consider that the composition of the residents of NCD justifies such inequality in the form of government and the exercise of the rights and privileges of citizens. Other provinces have similar residents, though not in the same numerical composition. Citizens of the NCD elect their representatives to the National Parliament who should also represent their constituents on the NCDC in the same manner with equal rights and privileges as members of Parliament for other provinces.

Thirdly, the rights and privileges bestowed upon Members of National Parliament for NCD, for and on behalf of their constituents the citizens of NCD, were "abolished" midterm, in the course of the life of the National Parliament and NCDC. Is this just? Is it equal treatment of rights and privileges of citizens and their duly elected political representatives? I believe not. It is discriminatory, and contrary to the general spirit of the Constitution, in my opinion.

Is the Act contrary to s. 39?

Is the Act therefore a law that is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, contrary to s.39 of the Constitution?

Section 39 states that:

(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) .........

(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.

This Court has affirmed and I reaffirm that the Preamble to the Constitution directs that all persons and bodies, corporate and unincorporated, are to be guided by the National Goals and Directive Principles, in pursuing the various National Goals.

The Second Goal declares that all citizens should have an equal opportunity to participate in, and benefit from, the development of our country. It accordingly calls for:

(2) the creation of political structures that will enable effective, meaningful participation by our people in that life, and in view of the rich cultural and ethnic diversity of our people for those structures to provide for substantial decentralization of all forms of government activity; and

Section 24 of the Constitution authorizes the use of the official records of debates and of votes and proceedings in the pre-Independence House of Assembly on the Report of the Constitutional Planning Committee (the CPC Report) and in the Constituent Assembly on the draft of the Constitution, together with that Report and any other documents or papers tabled for the purposes of or in connexion with those debates, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

Section 25 makes the following stipulations for the implementation of the National Goals and Directive Principles:

(1) Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.

(2) Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.

(3) Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

The CPC Report states that all activities of the State and its institution should be based on the directive principles and directed towards achieving the National Goals, and that all courts and other adjudicatory tribunals shall be guided in the exercise of their functions by the National Goals and Directive Principles.

Guided by the directive principles and the second National Goal, I am of the opinion that to repeal the Principal NCDC Act 1990, as amended, and thereby abolishing the rights and privileges bestowed on the citizens of NCD as well as in Members of the National Parliament for the NCD, and to create a different form of political government for the people of the NCD is discriminatory.

Is it reasonably justifiable in a democratic society having a proper regard for the dignity of the citizens of NCD and their Members of National Parliament to in effect "abolish" their rights and privileges at the time when the life of Parliament as well as the NCDC is still current? Is it reasonably justifiable in a democratic society having a proper regard for the rights and dignity of citizens of NCD and the Members of National Parliament representing citizens of NCD, who had been enjoying the same rights and privileges as citizens and Members of Parliament of other provinces since 1995? In my respectful opinion, the answer to these issues must be a resounding no. In my opinion the Act is therefore inconsistent with s. 39 as well.

Hinchliffe, Sheehan, Injia, Sawong JJ: This is a reference filed by the then Leader of the Opposition the Honourable Bill Skate ("the Referor") pursuant to S.18(1) of the Constitution. The Referor is seeking the Court’s interpretation as to the constitutional validity of the National Capital District Commission Act 2001 made by the National Parliament on 11 December 2001 ("the Act").

The Act is challenged on four grounds, which are set out in paragraph (vi) – (xi) of the Further Amended Reference filed on 18/12/01. At the hearing, the referor’s counsel Mr. Shepperd elected to pursue only two of the grounds because the other two grounds related to SCR No. 7 of 2001 filed by the Attorney General which was not argued before us. The two (2) grounds argued before us, which we rephrase in question form, are these:

1. Whether the Act is inconsistent with the Organic Law on Provincial Government and Local-level Government ("Organic Law") in that the Act established a system of Government for the National Capital District ("NCD") when there is already in existence a system of provincial government established by the Organic Law which applies to the NCD.
   
2. Whether the Act breaches Section 55 of the Constitution in that it creates "inequality between the citizens of the National Capital District in respect of their system of government and every other province, in that every other province is governed under a system established by the Organic Law, whereas the National Capital District is purportedly governed by the Act."
   

This reference comes before us against a backdrop of two amendments made in 2001 to the principal NCD Act 1990 which is now repealed and replaced by the present Act. The constitutional validity of those two amendments were challenged by the present Referor and determined by this Court constituted by the Chief Justice, Justice Injia and Justice Sawong. The legislative history of the statutory law governing the NCD is amply set out by the Chief Justice in SCR No. 4 of 2001 re NCDC Amendment Act Unreported Supreme Court Judgment No. SC 678 which was handed down on 16 November 2001. In that reference, the Court declared unconstitutional the two amendments because they both failed to comply with the formal requirements of section 50(2) of the Constitution. On 11 December 2001, the Parliament responded by enacting the present Act. This new Act including the two amendments enacted in 2001 which were declared unconstitutional and replaced it with a new system of government for the NCD.

Section 4 of the Constitution provides:

"4 National Capital District

(1) There shall be a National Capital District;
(2) The Seat of Government shall be in the National Capital District;
(3) The boundaries of the National Capital District shall be defined by an Organic Law;
(4) An Organic Law or an Act of the Parliament shall make provision in respect of the government of the National Capital District;
(5) In calculating the number of provincial electorates, in accordance with Section 125 (electorates), the National Capital District shall be taken into account as if it were a province."

Section 5 of the Constitution which is also relevant provides:

"5 Provinces

(1) An Organic Law may declare, or make provision in respect of the declaration of, part of the country as provinces;
(2) An Organic Law may provide for, or make provision in respect of, the creation of new provinces by the amalgamation or division of existing provinces or for the variation of the boundaries of a province."

The Preamble to the Organic Law provides:

"Made by the National Parliament, to come into operation –

(a) in so far as relating to all provinces other than Bougainville Province and the National Capital District – on certification; and

(b) in so far as relating to Bougainville Province – on 1 January 1999; and

(Paragraph (b) amended by Amendment No. 4 Law)

(Paragraph (b) further amended by Amendment No. 5

Law)

(c) in so far as relating to the National Capital District – in accordance with a notice published in the national Gazette by the Head of State, acting with and in accordance with, the advice of the Minister.

(Paragraph (c) added by Amendment No. 4 Law)"

Section 4 of the Organic Law provides:

"4. APPLICATION

(1) The system of Provincial Governments established by this Organic Law applies to the government of the National Capital District and the provisions of this Organic Law relating to Provincial Governments apply to the National Capital District.

(2) For the period on and from the date of coming into operation of this Organic Law until the date fixed for the return of the writs following the next general election held after the date of coming into operation –

• (a) the system of Interim Provincial governments provided for in Subdivision VI.3.C shall apply

and

(b) the provisions of the remainder of this Organic Law shall apply only to the extent necessary to Governments in accordance with Subdivision VI.3.C.
(3) The provisions of Subsection (2) do not apply in relation to Bougainville Province and the National Capital District."

Mr. Shepperd's submits that Section 4(4) of the Constitution gives the National Parliament the power to elect between an Organic Law or an Act to provide for a system of government for the NCD. Pursuant to this Section, in 1995, the Parliament elected to enact the Organic Law, which provided for a system of provincial governments for all provinces. Pursuant to s.4(1) of the Organic Law, the Parliament provided that the system of provincial government provided for in the Organic Law also applied to NCD. By implication, the Organic Law thereby repealed the NCDC Act 1990. The present Act is inconsistent with the Organic Law in that it provides for a system of government for the NCD when there is already in existence the Organic Law which applies to the NCD.

In relation to the coming into operation of the Organic Law in relation to the NCD, it is accepted by both parties that no notice was published. But Mr. Shepperd submits that notwithstanding this "technical or mechanical defect", the underlying principle of a single system of provincial government for all provinces embodied in s.4(1) of the Organic Law is paramount and it ought to be given effect to.

Mr. Egan submits for the respondent that s.4(4) of the Constitution intended that the Parliament should provide a system of government for the NCD either by an Organic Law or an Act. Since 1990 the Parliament has provided for a system of government for the NCD by an Act and not an Organic Law. The Organic Law provides for a system of provincial and Local-level governments for all provinces in this country. The NCD is not a province to which the Organic Law applies but if it were to apply to the NCD by virtue of s.4(1) of the Organic Law, then notice of this as required by the Preamble must be given. Since no such notice was given, the government of the NCD continues to be governed by an Act. Therefore, the Parliament having elected to proceed by an Act and not by an Organic Law, questions of inconsistency between the Act and the Organic Law does not arise. In support, Mr. Egan relies on the statement of the Chief Justice in SCR No. 4 of 2001, supra, where His Honour states:

"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 Principle Act thus provides for the government of the NCD."

A similar view was expressed by Sevua J in OS No. 538 of 1999, Bill Skate v Ruma Tau & others, Unreported National Court Judgment dated 4 October 2001, a decision cited to us by Mr. Egan.

We accept Mr. Egan’s submission. We consider that the arguments advanced by Mr. Shepperd are clearly without merit. Section 4(4) of the Constitution gives the Parliament the legislative power to enact laws to provide for a system of government for the NCD either by an Organic Law or an Act of the Parliament. In the exercise of this power, the Parliament since 1990 up to this day, elected to provide a system of government for the NCD by an Act and not by an Organic Law. The Organic Law on Provincial Government and Local-Level Government enacted in 1995 was enacted under Part VIA of the Constitution (Section 187A-H, inclusive) is not an Organic Law which was made under Section 4(4) of the Constitution. This Organic Law provides for a system of government for all provinces except the NCD and Bougainville. In respect of the NCD, 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": per Amet CJ in SCR No. 4 of 2001, supra. Since no notice has been given to date, the present Act which replaces the 1990 principal Act applies to the government of the NCD. This view is consistent with the correct view expressed by the Chief Justice in SCR No. 4 of 2001, cited above.

Section 10 of the Constitution provides for the construction of written laws. All laws shall be read and construed subject to the Constitution and "in the case of Acts of the Parliament – any relevant Organic Laws." The present NCDC Act (or its preceding 1990 Principal Act (as amended)) is the only written law, which applies to the government of the NCD. There being in existence no relevant Organic Law which provides for the government of the NCD, made either under Section 4(4) of the Constitution or by reason of notice giving effect to the application of the Organic Law on Provincial Government and Local-Level Government to the NCD, no question arises as to any inconsistency between the present Act and any relevant Organic Law.

Questions were raised in argument during the hearing of this reference as to the wisdom or otherwise of the lack of notice given by the Head of State acting on the advice of Ministers responsible in successive executive governments over the years. There is no evidence before us to show whether the lack of notice was through inadvertence or demise. Be that as it may, however, given the fundamental importance of the condition precedent prescribed by the Preamble for the coming into operation of the Organic Law in respect of the NCD, we consider that the decision on the part of successive executive governments since Independence and more lately since 1995, including the executive government headed by the Referor as the Prime Minister, not to publish the notice, was a deliberate decision. We consider that the lack of notice is not a mere "technical or mechanical defect" as suggested by Mr. Shepperd, which we can ignore or rectify. One example of a technical defect is if there is evidence before us to show that the gazettal notice was completed by the Head of State acting on advice of the Minister responsible and given to his protocol officer to deliver to the publisher of the National Gazette to publish it but the publisher misplaced the notice and never got to publish it and completely forgot about it. The executive government not knowing of this fact proceeded to implement the notice on the mistaken assumption that the notice had been published.

Indeed when we look at some of the relevant provisions of the Constitution and the present Organic Law and other relevant Organic Laws, it is not difficult to understand the reasons why such deliberate decision was taken. Pursuant to Section 4(1) – (2) of the Constitution, the NCD is the seat or home to the National Government. Because of this, it is accorded special geo-political status. Its boundaries are defined by an Organic Law: Constitution s.4(3). This is done by the Organic Law on the Boundaries of the National Capital District (Ch. No. 1). The boundary of the NCD defined under this Organic Law is different from the boundaries of provinces declared in respect of various parts of the country under an Organic Law enacted under Section 5(1) of the Constitution. The Organic Law on Provincial Boundaries (Ch. No. 1) divides the country into 19 provinces and defines their geographical boundaries and the NCD is not included in those 19 provinces. Under Part VIA of the Constitution, a system of provincial government is established for the 19 provinces of this country. Section 187(A), (B) and (C) empowers the National Parliament to enact an Organic Law to provide for the establishment of system of the provincial government for the provinces and provide for their constitution powers and functions. The Organic Law on Provincial and Local-level Government implements Part VIA of the Constitution. Because the NCD is not a "province" as defined in the Organic Law on Provincial Boundaries, the Organic Law on Provincial Government and Local-Level Governments has no application to the NCD until notice is given to effect it by the executive government through the Head of State.

The political significance of a separate system of provincial government established by the Constitution and the Organic Law is stated in the Preamble to the Organic Law to be a direct response "to the nationwide call of our people to bring about substantial reforms to our provincial government system" in order to, inter alia, "promoting equal opportunity and popular participation in government at all level by all people": It enables what was then a highly centralized system of government "seated" in the NCD to be decentralized to the provinces so that the overwhelming majority of our people who live outside the NCD equally and meaningfully participate in the political process at all levels of the community to bring about socio-economic development in their own areas. The citizens living in the NCD may not need to have a system of government similar to that enjoyed by the provinces because they are expected to be in close proximity to the seat of the National Government and their social and welfare needs can be easily understood and met by the National Government. In terms of the political representation of the citizens living in the NCD in the process of government at the national government level, Section 4(5) of the Constitution gives them equal rights with the provinces. Therefore, if one looks at the constitution, the powers and functions of the provincial government system contained in the Organic Law and compare them to the system of government for the NCD provided in the act, there are substantial differences. For example, the establishment of Local-Level Governments whose Presidents become members of the Provincial Assembly under the Organic Law whereas there are no Local Government Councils for the NCD. For this reason, the system of provincial governments provided in the Organic Law cannot practically apply to the NCD unless the executive government takes the necessary steps to establish the same system of provincial and local-level government in the NCD and only when that is satisfactorily done, the executive government is then able to publish the notice to implement provisions of the Organic Law in respect of the NCD. For these reasons and for any other host of reasons, the executive government in its wisdom appears to have deliberately decided not to publish the notice. It is not the function of this Court to question or interfere with this political executive decision.

We are also of the view that the words of s.4(4) of the Constitution and the Preamble to the Organic Law are quite clear and it is not necessary to engage in any statutory construction exercise to determine the meaning of what is otherwise clear law.

In relation to the challenge based on s.55 of the Constitution, Mr. Shepperd’s argument is that because the Act establishes a system of government for the NCD different to the system of provincial and local-level government established by the Organic Law and enjoyed by all other provinces, the Act denies the citizens living in the NCD their right to be governed by the same system of government established by the Organic Law enjoyed by citizens living in the 19 provinces.

Mr. Egan submits there is no evidence to show that citizens living in the NCD are in some way disadvantaged by this legislative scheme. He submits that the Act simply regulates the affairs of the government designed to enhance the welfare of the people living in the NCD and therefore, it is not discriminatory.

In our view, Mr. Shepperd’s arguments are once again clearly without merit and they ought to be rejected. We do not think it is open to argument that the enactment of the present act by the Parliament as opposed to an Organic law to provide for the government of the NCD, is discriminatory and therefore in breaches s.55 of the Constitution. Section 55 speaks of some government action targeted at a particular group of people or individuals among the same group of people on any of the discriminatory basis prescribed by s.55(1) and given different preferential treatment at the expense of others. That is not the case here and there is no evidence of that happening before us either.

We are also of the view that Mr. Shepperd’s submission is misconceived for several reasons. Firstly, Section 4(4) of the Constitution itself provides the basis for a differential treatment in the form of statute governing the government of the NCD. The suggestion that the Parliament discriminated against the citizens residents in the NCD by providing for their Government by an Act and not by the Organic Law on Provincial Government and Local-Level Government or by another Organic Law is misconceived. Secondly, any suggestion that successive executive governments including the present discriminated against the citizens resident in the NCD, in not giving effect to the notice to allow the Organic Law to apply to the NCD, is also misconceived because the Act is not challenged before us on that basis in this reference. Thirdly, any suggestion that because the elected members for the NCD in the National Parliament are precluded from taking office in the government of the NCD to which they are entitled to under the Organic Law is also misconceived because positions such as the Provincial Member for the NCD assuming the office of the Governor for the NCD, is created by the Organic Law which is yet to apply to the government of the NCD. The repealed Principal NCD Act as amended in 1995 which imported positions created by the Organic Law, such as the position of the Governor of NCD, may have been done in hindsight. Fourthly, any attempt to invoke Section 39 and Section 50(2) of the Constitution to support the argument that the Act is not reasonably justifiable in a democratic society, because it precludes the Provincial Member for NCD in the National Parliament from taking office as the Governor of NCD, as is the case in the 19 provinces, cannot be entertained in this reference because these arguments were not raised before us. Such arguments we understand relate to the two grounds Mr. Shepperd elected to pursue in SCR No. 7 of 2001.

For these reasons, we would answer the two questions raised in this reference in the negative. And we hold that the new National Capital District Commission Act of 2001 is valid.

We order that the respondent’s costs of this reference be paid by the Referor. We certify for overseas counsel.

_______________________________________

Lawyers to the Referor : Maladinas Lawyers
Lawyer for the Respondent : Nongorr and Associates