Special Reference Pursuant to Constitution Section 19; Re Sitting Days of Parliament and Regulatory Powers of Parliament [2002] PGSC 2; SC722 (31 December 2002)

SC722
PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR 3 of 2000

SPECIAL REFERENCE PURSUANT TO
CONSTITUTION, SECTION 19; RE SITTING
DAYS OF PARLIAMENT AND REGULATORY
POWERS OF PARLIAMENT.

REFERENCE BY THE HEAD OF STATE
ACTING ON THE ADVICE OF THE
NATIONAL EXECUTIVE COUNCIL.

Waigani: Amet, CJ, Kapi, DCJ, Los, J, Sheehan, J,
Sakora, J, Sevua, J & Sawong, J

2001 : 23rd & 24th April
2002 : 31st December

Supreme Court Reference by the Head of State under s 19 (b) of the Constitution – Meaning of "meet", "in principle" and "nine weeks" under s 124 (1) of the Constitution.

Meaning and Application of s 23 of the Constitution.

No provision in law to raise the same issue a third time.

Abuse of process of Court – to raise the same issue a third time.

Counsel:
Dr J. Nonggorr with Mr C. Nidue for Referror (Head of State)
Mr C. Narokobi for National Parliament
Mr D. Cannings with Ms T. Suwae for the Intervener (Ombudsman Commission)

31st December 2002

AMET CJ: (dissenting)

KAPI DCJ: The Head of State acting on the advice of the National Executive Council made a special reference under s 19 (b) of the Constitution. The questions referred are:

Question 1

What do the following words and expressions in Section 124 (1) of the Constitution mean:-

(a) "meet"?
(b) "in principle"?
(c) "nine weeks"

Question 2

If the words "nine weeks" in Section 124 (1) refer to a defined number of days, what constitutes a day?

Question 3

If the Parliament is adjourned for lack of quorum on a "day" scheduled for it to "meet" within the meaning of those words as interpreted in answer to questions 1 and 2, is such adjourned day included in the number of days the Parliament is required to meet?

Question 4

Is it mandatory for the Parliament to "meet" for "nine weeks" within the meaning of these expressions as interpreted in answer to question 1?

Question 5

If the answer to question 4 is yes – is the Parliament in breach of Section 124 (1) of the Constitution if it does not meet for the required period?

Question 6

If the answer to question 5 is yes, and if, within a period of 12 months of a Parliament year, the Parliament completes its business in less than "nine weeks" within the meaning of that expression as interpreted in answer to question 1, is it still in breach of Section 124 (1) of the Constitution?

Question 7

If the answer to question 5 or 6 is yes – in either case, who is to be held responsible for the breach?

Question 8

Having regard to the answer to question 7, what sanctions are to be imposed on those held responsible for a proven breach?

Question 9

Having regard to Section 99, 100 and 115 of the Constitution, do the Courts have jurisdiction to impose sanctions on those determined as being responsible in the answer to question 7?

Question 10

Having regard to Section 99 and 115 of the Constitution, is the question as to the number of days and weeks the Parliament meets in each 12 months a matter of Parliament procedure and is legislative function and therefore not subject to judicial supervision?

Question 11

Having regard to Section 99 and 115 of the Constitution, do the National and Supreme Courts have the constitutional authority to:-

(a) decide that the Parliament is in breach of Section 124 (1) of the Constitution; and
(b) impose sanctions on Parliament or members of Parliament?

Most of the questions relate directly or indirectly to the interpretation and application of s 23 and s 124 (1) of the Constitution. These provisions were the subject of decision by the Supreme Court in SCR No. 3 of 1999 (Unreported Judgement of the Supreme Court dated 25th June 1999) (Ombudsman Reference).

The Parliament sought to re-open the decision in the Ombudsman Reference on the basis that the Court misapprehended the law. The Court dismissed the application and confirmed its decision (see SCR No. 3 of 1999 (No. 2) (Unreported Judgment of the Supreme Court dated 23rd February 2001). The majority concluded:

"This reference was fully argued last year and the Applicant duly represented, had ample and full opportunity to raise all issues it considered necessary. Regrettably all the issues now raised as errors were argued or at least alluded to in the earlier proceedings. The claims of errors on the part of the Court and of its misapprehending law or fact do not stand."

The present reference is the third attempt to consider the same issues within a short space of time. There is no provision in law which permits the parties to raise the same issues again a third time in any other proceeding (see Sevua J. in Titi Christian v Rabbie Namaliu & The State (Titi Christian Case) (Unreported Judgment of the Supreme Court dated 18th July 1996) at page 88).

The same parties, namely, the Ombudsman Commission, the National Parliament and the National Executive Council argued the interpretation of the same provisions in the two previous decisions referred to above. In my opinion, they cannot be permitted to raise the same issues again. In Titi Christian Case, the Chief Justice set out the common law principles of res judicata and issue estopple and concluded that Titi Christian was estopped from raising the same issues determined already by the Supreme Court in Isidore Kaseng [1995] PNGLR 481. I reached the same conclusion so far as these principles apply to the same parties (see Titi Christian Case (supra) pages 35-36). Salika J. agreed with the Chief Justice on this issue at page 73 and Andrew J. agreed on page 82.

Alternatively, the present reference is an abuse of the process of Court in so far as it raises issues that have been determined (see Titi Christian Case (supra) Chief Justice at page 20, Andrew J. at page 82 and Sevua J. at page 88.

Section 124 (1)

As I have pointed out earlier, the parties argued the correctness of the decision in the Ombudsman Reference (supra) in respect of this provision in the application to review the decision of the Supreme Court under the "Slip Rule" and the Court dismissed the application and confirmed its decision.

The arguments presented in the present reference in respect of s 124 are a rehash of the arguments presented in the previous proceedings. In particular, the issues raised in Questions 1, 4, and 5 have been determined in the two previous decisions and need not be considered again for the reasons I have set out above.

I am not persuaded that the majority decision in the Ombudsman Reference made any error in the interpretation and application of s 124 (1). I reaffirm my opinion.

However, several questions relating to s 124 (1) have been raised which may require clarification. Questions 2 and 3 may be taken together. Counsel did not contest the answers to these questions. Where the Parliament has a quorum and sits to deal with business, that will constitute a day for the purposes of calculating the "nine weeks" under s 124 (1). Where there is no quorum, the Parliament cannot do business, it must be adjourned to the next sitting day (see s 36, 37 of Standing Orders). Such a sitting cannot be regarded as a sitting day. In the Ombudsman Reference, I made reference to sixty three (63) working days. These are sitting days with a quorum.

Question 6 is premised on the basis that "...the Parliament completes its business...". The duration of the sittings of the Parliament under s 124 (1) is not determined by reference to the completion of Parliament business. If the Constitution intended this, it would have said so.

The business of the Parliament and how it may deal with it, is the subject of Standing Orders. However, the Standing Orders are made subject to s 124 (1) of the Constitution (see s 124 (3), see also s 1 of the Standing Orders). Therefore, the minimum duration in which the Parliament may do its business must not be less than "nine weeks" in "principle" under s 124 (1). As I have already pointed out, the Court has already determined the meaning of this provision in the Ombudsman Reference. In practical terms, the Parliament must plan to conduct business for the minimum required period.

I expressed the opinion in the Ombudsman Reference that this issue cannot be determined by reference to the number of sitting days only. There are other matters that should be taken into account (see Supreme Court Reference No. 4 of 1990 [1994] PNGLR 141 at 158; Ombudsman Reference (supra at pages 18-19). Whether, or not, any number of sitting days less than the "nine weeks" is in breach of s 124 (1) depends on whether such period having regard to all the other relevant considerations is inconsistent with the "nine weeks" proposition. The question is not whether the Parliament has completed its business, but whether it has sat for the required period. The Parliament is required to do business for that period. It is not at liberty to sit, for example, one day or one week and adjourn the Parliament to the next 12 months period.

The duty imposed upon Parliament to sit for a required period must be understood within the context of the numerous responsibilities imposed by the Constitution. The legislative power of the people is vested in the Parliament (s 100). The Parliament has the duty to make laws for the peace, order and good government of the nation. This power is made "subject to the Constitution" (s 109). In performing its duty, the Parliament must comply with the requirements set out under s 124 (1).

In addition, the Executive Power of the people is vested in the Head of State (s 138). This power is exercised in accordance with the advice of the National Executive Council (s 86 (2)). The National Executive Council consists of a Ministry in the nature of a Parliamentary Executive (s 141). The Parliamentary Executive is:

"..answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive (s 141 (b) of the Constitution)."

I have referred to these provisions to indicate the enormous responsibility placed on the Parliament. There are other provisions in the Constitution and numerous statutory provisions that prescribe other duties and functions of the Parliament. The question is not, whether, the Parliament may complete these responsibilities within a 12 months period? That is impossible considering the enormous task. The question is, what is the minimum period required by the Constitution for the Parliament to perform these responsibilities within a 12 months period?

The power entrusted to the Parliament by the Constitution is the people’s power and it is to be exercised in accordance with the provisions of the Constitution. I can understand why s 124 (1) imposes requirements that must be complied with. This provision was deliberately enacted to prescribe a minimum period for the Parliament to carry out its functions. The need for enacting this provision has been illustrated by the several attempts made by the Parliament not to sit for extended periods (8 months) in a period of 12 months. The first attempt resulted in the first reference (see [1990] PNGLR 141 and the second attempt resulted in the Ombudsman Reference.

If the requirement under s 124 (1) as interpreted by the Supreme Court is ignored or not given effect, the role of Parliament in making laws under s 109 would be severely affected and the supervision and accountability of the Parliamentary Executive actions under s 141 would be rendered ineffective. If the Parliament is allowed to ignore the duty imposed y s 124 (1), there is a grave risk of reducing the effectiveness and supervisory role of the people through the Parliament to naught.

The Parliament plays a key role in the constitutional democracy established under the Constitution. This is the people’s power vested in the Parliament. The Constitution has directed that this power must be exercised for the required period set out under s 124 (1). In this regard, the Parliament cannot regard itself above the Constitution and free to perform its duty without any regard to the requirements of s 124 (1).

This Court has upheld the principles of parliamentary democracy when the role of the Parliament has been ignored or deliberately excluded (see Haiveta v Wingti (No. 3) [1994] PNGLR 197; In the Matter of Application by Anderson Agiru (Unreported Judgment of the Supreme Court dated 8th October 2001, SC671).

The Courts recognize and uphold constitutional provisions similar to Papua New Guinea that regulate Parliament (see The Speaker v Danny Philip (Civil Appeal Case No. 5 of 1990 dated 30th August 1991); Edward Huniehu v Attorney-General & Speaker of the Parliament (Civil Appeal Case No. 6 of 1996). In both cases, the Court of Appeal of Solomon Islands reviewed the conduct of the Speaker of the Parliament in accordance with the provisions of the Solomon Islands Constitution.

Section 23

Questions 7 and 8 relate to sanctions that may be imposed under s 23 of the Constitution.

As I have pointed out at the beginning of the judgment, issues arising under s 23 were raised and considered in the Ombudsman Reference (supra) and should not be considered again for the reasons I have set out earlier in the judgment. I will refer to the reasons to make it perfectly clear what the majority opinion decided. I concluded:

"...it is not proper to actually spell out the powers of the National Court and the manner in which it may exercise them. It would be more appropriate for the National Court to deal with such a power in a proceeding with all the relevant facts."

The majority reached the same conclusion (see Woods J at 30, Los J at page 38, Sheehan J agreed, Sakora J agreed and Sevua J at page 46). There is no point in pursuing the same question in the face of a clear statement by the majority opinion.

Whether the National Court may impose any of the sanctions under s 23 (1) (a) or (b) or both or make "such further order" is entirely within the discretion of the National Court.

Moreover, "..the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty.." (s 23 (2)). This power includes an anticipatory order (s 23 (3)).

These are wide powers expressed in alternative terms, and the National Court is empowered to impose any of these sanctions or make orders having regard to the circumstances of a particular case. The discretion to impose a sanction or make an appropriate order is based on what the National Court "thinks proper" or "thinks it proper to do so". It is necessary to have the facts in order to exercise this discretion.

In my opinion, it is not proper to determine the appropriate sanction without the facts of a particular case. If in a given case, an application is brought before the National Court for orders under s 23 (2) to remedy a breach of duty and this is complied with, no question of any other penalty such as a fine or imprisonment under s 23 (1) would arise.

An appropriate action under s 23 should be brought in the National Court to determine the facts. This will provide the context in which the discretion to impose a sanction should be determined. That is the appropriate time to determine who is responsible for breach of s 124 and to consider the appropriate sanction under s 23.

This is a unique discretion given by the Constitution. As far as I am aware, there is no equivalent provision in any of the constitutional democracies I am familiar with. Therefore, it is not a discretion that can be determined lightly in a hypothetical manner. I have expressed this opinion before and I remain unconvinced that it should be determined in this reference.

In the result I would not answer these questions.

Questions 9, 10 & 11

Does the National and the Supreme Courts have any jurisdiction to determine:

(1) the meaning of s 124?

(2) whether the National Parliament has breached s 124?

(3) whether any sanction under s 23 may be imposed for breach of s 124?

There can be no question that the Supreme Court has exclusive jurisdiction to interpret and apply a constitutional law under s 18 (1) of the Constitution. However, this exclusive jurisdiction is qualified by the words "Subject to this Constitution.." in s 18 (1).

Section 23 gives the National Court original jurisdiction to deal with a provision of a constitutional law that "...prohibits or restricts an act, or imposes a duty,.." and may impose any of the sanctions under s 23 (1) (a) or (b) or both. In addition "...the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty,.." under s 23 (2). It has power to make anticipatory orders under s 23 (3).

In summary, the National Court has original jurisdiction to determine whether s 124 imposes a duty on the National Parliament and whether the National Parliament has breached that duty (s 23 (1)). In addition, the National Court has jurisdiction to impose a sanction (s 23 (1) (a) or (b)) or make any other order for preventing or remedying a breach of the duty (s 23 (2)).

The Supreme Court has jurisdiction to review a decision of the National Court on appeal (s 155 (2) (a) of the Constitution; Supreme Court Act) and by way of judicial review (s 155 (2) (b)).

In an appropriate case, where orders in the nature of prerogative writs may be made, the National and Supreme Courts have concurrent jurisdiction to make such orders under s 155 (4) of the Constitution.

The question then arises, whether ss 99, 100 and 115 of the Constitution provides any immunity to the National Parliament from the jurisdictions of the National and Supreme Courts as outlined above? It is convenient to set out these provisions:

"99. Structure of Government.

(1) Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government.

(2) The National Government consists of three principal arms, namely:—

(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and

(b) the National Executive; and

(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

(3) In principle, the respective powers and functions of the three arms shall be kept separate from each other.

(4) Subsection (2) is descriptive only and is non-justiciable."

"100. Exercise of the legislative power.

(1) Subject to this Constitution, the legislative power of the People is vested in the National Parliament.

(2) Subsection (1) does not prevent a law from conferring on an authority other than the Parliament legislative powers or functions (including, if the law so provides, a further power or further powers of delegation and sub-delegation).

(3) Nothing in any Constitutional Law enables or may enable the Parliament to transfer permanently, or divest itself of, legislative power."

"115. Parliamentary privileges, etc.

(1) The powers (other than legislative powers), privileges and immunities of the Parliament and of its members and committees are as prescribed by or under this section and by any other provision of this Constitution.

(2) There shall be freedom of speech, debate and proceeding in the Parliament, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever (otherwise than in proceedings in the Parliament or before a committee of the Parliament).

(3) No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this subsection does not affect the operation of Division III.2 (leadership code).

(4) No member of the Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.

(5) No member of the Parliament or other person is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of—

(a) an act done under the authority of the Parliament or under an order of the Parliament or a committee of the Parliament; or

(b) words spoken or used, or a document or writing made or produced, under an order or summons made or issued under the authority of the Parliament or a committee of the Parliament.

(6) Members of the Parliament are free from arrest for civil debt during meetings of the Parliament and during the period commencing three days before, and ending three days after, a meeting when they are travelling from their respective electorates to attend the meeting or are returning to their electorates from the meeting.

(7) No process issued by any court in the exercise of its civil jurisdiction shall be served or executed through the Speaker, an officer of the Parliament or a member of the Parliamentary Service, or within the precincts of the Parliament (as defined by or under an Act of the Parliament) while it is sitting.

(8) The powers conferred by Section 109 (general powers of law-making) extend to the making of laws—

(a) declaring further powers (other than legislative powers), privileges and immunities of the Parliament, and of its members and committees; and

(b) providing for the manner in which powers, privileges and immunities provided for by or under this section may be exercised or upheld.

(9) The powers and privileges conferred by or under this section do not and shall not include the power to impose or provide for the imposition of a fine, imprisonment, forfeiture of property or other penalty of a criminal nature, but this subsection does not prevent the creation of offences for the purposes of this section that are triable within the National Judicial System."

Section 99 describes the three arms of National Government but does not go so far as to prescribe the exercise of their respective powers in relation to each other. One has to go to other provisions of the Constitution to determine this.

Similarly, s 100 simply vests the legislative power of the people in the National Parliament and does not deal with the jurisdiction of the National and the Supreme Courts over the actions of the National Parliament.

Sections 99 and 100 are of little assistance in determining the issues raised.

Section 115

Section 115 deals with the privileges and immunities for members of the National Parliament. It covers several matters.

First, it guarantees freedom of speech, debate and proceedings in the Parliament for members of Parliament (s 115 (2)). There is no suggestion in this reference that any of these freedoms are in any way interfered with or breached. Section 115 (2) has no direct relevance to the required period of sitting of the Parliament under s 124.

Secondly, a member of the Parliament is not "subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such" (s 115 (3)). This provision should be read together with s 115 (4) which protects members of Parliament from "civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.".

This protection covers actions of individual members in the performance of their duties. These provisions protect individual members from any act that may constitute a civil suit such as an action for defamation, or an act which may constitute a criminal offence such as any words a member may use in Parliamentary debate which may constitute an offence such as an offence under s 7 (b) of Summary Offences Act (see also any challenge by a member of the Parliament during Parliamentary debate to fight another person contrary to s 74 of the Criminal Code). There is no suggestion of any proceeding against a member of the Parliament for a civil suit or any criminal offence such as the ones I have referred to.

The immunities granted by these provisions to individual members of the Parliament are not applicable to the actions of the National Parliament as a legal entity. The Parliament is required to perform its functions within the frame work of the law. Where Parliament as a legal entity has not followed the law, its actions will be reviewed by the courts in accordance with the law. There are numerous instances where legislation passed by Parliament have been reviewed by the Court for non-compliance with the Constitution (see for example SCR No.2 of 1982; Re Organic Law [1982] PNGLR 214). The courts have directed the Parliament to perform its functions in accordance with the law. In Haiveta v Wingti (No. 3) [1994] PNGLR 197 the Supreme Court declared the election of the Prime Minister null and void and directed that the Parliament should elect the Prime Minister in accordance with s 142 (3) of the Constitution. Immunities and privileges granted by s 115 could afford no defence to the review of the acts of the Parliament by the courts.

Section 124 (1) requires the Parliament to sit for a required period. If it deliberately fails to do this, the National Court can review its actions and make appropriate orders under s 23. Whether or not the National Court may impose a fine, imprisonment or both under s 23 (1) is as I have pointed out, is a discretionary matter.

Section 23 is a general provision and is intended to cover a wide range of issues (acts which may be prohibited or restricted and duties imposed) where there is no specific provision for enforcement of such prohibitions or restrictions and duties. It follows from this that some of the sanctions may not be appropriate to particular circumstances. It may well be that the National Court may consider in an appropriate case that a fine or imprisonment is not appropriate to impose upon the Parliament. But it does follow from this that the National Court cannot make other orders under s 23 (2) and (3).

Section 115 (5) is of no relevance as there is no question of any member doing an act under the authority of the Parliament or the Committee of the Parliament.

Section 115 (6), (7), (8) and (9) can have no application to the issue of sittings of the Parliament under s 124.

Parliament Procedure

Question 10 raises Parliamentary Procedure in respect of the sittings of the Parliament. Sections 99, 100 and 115 have no direct relevance to this issue. This is the subject of ss 133 and 134 of the Constitution and they provide:

"133. Standing Orders.

The Parliament may make Standing Orders and other rules and orders in respect of the order and conduct of its business and proceedings and the business and proceedings of its committees, and of such other matters as by law are required or permitted to be prescribed or provided for by the Standing Orders of the Parliament.

134. Proceedings non-justiciable.

Except as is specifically provided by a Constitutional Law, the question, whether the procedures prescribed for the Parliament or its committees have been complied with, is non-justiciable, and a certificate by the Speaker under Section 110 (certification as to making of laws) is conclusive as to the matters required to be set out in it."

These provisions relate to Parliamentary procedures that may be prescribed by the Parliament in Standing Orders. Where Parliament prescribes procedure under s 133, whether or not there is compliance with such procedure is not subject to review by the courts under s 134 of the Constitution. That is clear enough.

However, this is subject to the words "Subject to this Constitution.." under s 134. Where a constitutional law prescribes a matter including a matter of procedure of Parliament, those matters are justiciable (per Sheehan J in Haiveta v Wingti (No 1) [1994] PNGLR 160). This proposition was not challenged on appeal to the Supreme Court (see Haiveta v Wingti (No 3) [[1994] PNGLR 197). In this case, the election of the Prime Minister by the Parliament arose for consideration. The issue related to the meaning of "the next sitting day" under s 142 (3) of the Constitution. That admittedly deals with a matter of parliamentary procedure. The Supreme Court under s 18 (1) has jurisdiction to interpret and apply a provision of the Constitution. This case effectively overruled the earlier decision in Mopio v Speaker of the National Parliament [1977] PNGR 420.

Where a matter of procedure is provided for by Standing Orders only, such as an election of the Prime Minister following e general election, it may be argued that s 134 would be applicable (see Supreme Court Reference No. 1 of 1997 (Unreported Judgment of the Supreme Court dated 14th July 1997,SC526).

In the present reference, the National Court has jurisdiction to apply s 124 under jurisdiction expressly granted by s 23 of the Constitution.

I would answer the questions as follows:

Question 1 – This question has been answered in SCR 3 of 1999 (Unreported Judgment of the Supreme Court dated 25th June 1999.

Question 2 – When the Parliament has a quorum and sits to do business, that will constitute a day for the purposes of calculating the nine weeks under s 124 (1). If there is no quorum, such a day cannot constitute a day for the purposes of calculating the nine weeks.

Question 3 – No

Question 4 – This question has been answered in SCR 3 of 1999 (Unreported Judgment of the Supreme Court dated 25th June 1999).

Question 5 – This question has been answered in SCR No. 3 of 1999 (Unreported Judgment of the Supreme Court dated 25th June 1999)

Question 6 – Yes, if the period is not consistent with the nine weeks proposition.

Question 7 – This should be determined in the context of a case before the National Court.

Question 8 – This should be determined in the context of a case before the National Court.

Question 9 – Yes

Question 10 – The actions of the National Parliament under s 124 is subject to review by the National Court under s 23 and the decision of the National Court may be reviewed by the Supreme Court under its appellate jurisdiction (Supreme Court Act), judicial review under s 155 (b) of the Constitution. Where orders in the nature of prerogative writs may be made, both the National and the Supreme Courts have concurrent original jurisdiction.

Question 11 – Yes

LOS J: I have read the draft judgement of the Deputy Chief Justice and I agree with the conclusions and answers he proposes for all the questions.

SHEEHAN J: I have read the draft judgement of the Deputy Chief Justice and I agree with the conclusions and answers he proposes for all the questions.

SAKORA & SEVUA, JJ: This is a Special Reference pursuant to Section 19 of the Constitution in respect of the sitting days of Parliament and the regulatory powers of Parliament made by the Head of State, acting on the advice of the National Executive Council.

This reference arose from the decision of the Supreme Court in SCR 03 of 1999, Supreme Court Reference Pursuant to Constitution, Section 19 Re Calling of Meetings of Parliament, Reference by the Ombudsman Commission.

That reference was heard by this same panel except Sawong, J who, in the present reference, replaces Woods, J who has retired. The Court in that reference, in a clear majority of six to one, the Chief Justice dissenting, expressed the view that s 124 of the Constitution imposes a mandatory requirement on the Parliament to sit for 63 days.

The National Parliament, last year, filed a review application purportedly under the "slip rule" principle and asked the Court to reconsider a number of issues it had already determined in the original SCR 03 of 1999, and which the National Parliament claimed were errors made by the Court. Again, in a majority of five to one, the Chief Justice dissenting, the Court dismissed that application as being misconceived.

The present reference by the Head of State is the third time the Supreme Court is asked to reconsider issues that have already been considered and determined by the same Court in the original reference by the Ombudsman Commission and the subsequent purported slip rule application by the National Parliament.

The Head of State is an authority referred to in Section 19 of the Constitution. On advice from the National Executive Council, the Head of State seeks the opinion of the Supreme Court on eleven questions referred. The circumstances in which this reference arose are said to be these. The majority of the Supreme Court in Special Reference Pursuant to Constitution Section 19, Re Calling of Parliament, Reference by the Ombudsman Commission, SCR 03 of 1999 held inter alia that the Parliament must aim to sit for 63 days in each 12 months period. However, the referrer claims that the Court did not conclusively decide a number of important issues which remain to be resolved. Those "issues include a clear exposition of the powers of the Supreme Court, vis à vis, the powers of the Parliament."

We set out in full the eleven questions referred for this Court’s opinion.

1. What do the following words and expressions in Section 124(1) of the Constitution mean?
   
   • (a) "meet"
   • (b) "in principle"
   • (c) "nine weeks"
     
2. If the words "nine weeks" in section 124(1) refer to a defined number of days, what constitutes a day?
   
3. If the Parliament is adjourned for lack of quorum on a "day" scheduled for it to "meet" within the meaning of those words as interpreted in answer to questions 1 and 2, is such adjourned day included in the number of days the Parliament is required to meet?
   
4. Is it mandatory for the Parliament to "meet" for "nine weeks" within the meaning of these expressions as interpreted in answer to question 1?
   
5. If the answer to question 4 is yes, is the Parliament in breach of Section 124 (1) of the Constitution if it does not meet for the required period?
   
6. If the answer to question 5 is yes, and if, within a period of 12 months of a Parliament year, the Parliament completes its business in less than nine weeks" within the meaning of that expression as interpreted in answer to question 1, is it still in breach of Section 124 (1) of the Constitution?
   
7. If the answer to question 5 or 6 is yes, in either case, who is to be held responsible for the breach?
   
8. Having regard to the answer in question 7, what sanctions are to be imposed on those held responsible for a proven breach?
   
9. Having regard to Sections 99, 100 and 115 of the Constitution, do the Courts have Jurisdiction to impose sanctions on those determined as being responsible in the answer to question 7?
   
10. Having regard to Sections 99 and 115 of the Constitution, is the question as to the number of days and weeks in each 12 months a matter of Parliament procedure and is a legislative function and therefore not subject to judicial supervision?
    
11. Having regard to Sections 99, and 115 of the Constitution, do the National and Supreme Courts have the constitutional authority to:-
    
    • (a) decide that the Parliament is in breach of Section 124(1) of the Constitution; and
      
    • (b) impose sanctions on Parliament or members of Parliament?
      

In order to answer each of the eleven questions referred, we have considered at length all the submissions advanced by the referrer, the National Parliament and the interverner. It is our view that the submissions by the Ombudsman Commission in SCR 03 of 1999 succinctly and directly answered each of the eleven questions now referred. We now deal with each question in turn.

Question 1: What do the following words and expressions in Section 124(1) of the Constitution mean?

(a) "meet"
(b) "in principle"
(c) "nine weeks"

We consider that the meaning ascribed to the words and expressions raised in this question have been adequately addressed in SCR 03 of 1999, by the majority of the Court. We therefore decline to answer this question.

Question 2: If the words "nine weeks" in Section 124 (1) refer to defined number of days, what constitutes a day?

Once again the majority of the Court in SCR 03 of 1999 addressed this issue and was of the opinion that a day means a normal calendar period of 24 hours commencing on the stroke of midnight. We see no reason to depart from that view.

Question 3: If the Parliament is adjourned for lack of quorum on a "day" scheduled for it to "meet" within the meaning of those words as interpreted in answers to Question 1 and 2, is such adjourned day included in the number of days the Parliament is required to meet?

We are of the opinion that where the Parliament is scheduled to meet on a particular day and is adjourned for lack of quorum, then Parliament cannot be regarded as having met.

Question 4: Is it mandatory for the Parliament to "meet" for "nine weeks" within the meaning of these expressions as interpreted in answer to Question 1?

It is not necessary to answer this question as it has already been answered by the majority of the Court in SCR 03 of 1999.

Question 5: If the answer to Question 4 is yes, is the Parliament in breach of Section 124 (1) of the Constitution if it does not meet for the required period?

Once again this question has been succinctly answered in SCR 3 of 1999. Therefore it is unnecessary to answer this question.

Question 6: If the answer to Question 5 is yes, and if, within a period of 12 months of a Parliament year, the Parliament completes its business in less than "nine weeks" within the meaning of that expression as interpreted in answer to Question 1, is it still in breach of Section 124 (1) of the Constitution?

In SCR 03 of 1999 the Court, by a majority, accepted the proposition put by the Ombudsman Commission, particularly in respect of the constitutional roles, responsibilities, duties and functions of the Parliament quite apart from its legislative functions. We consider that the issue here is not whether the Parliament has concluded its business because s. 124 requires the Parliament to sit in principle for not less than nine weeks to perform its constitutional functions. We are in agreement with the learned Deputy Chief Justice that the duration of the sittings of the Parliament is not determined by reference to the completion of the business of Parliament. In principle, the Parliament must sit for a minimum of nine weeks and the Court has already determined this issue.

Question 7: If the answer to Questions 5 or 6 is yes – in either case, who is to be held responsible for the breach.

We decline to answer this question pursuant to s. 19 (4) (c) of the Constitution because we consider it to be hypothetical. The question is speculative and can only be answered in a specific set of facts.

Question 8: Having regard to Question 7, what sanctions are to be applied on those held responsible for a proven breach.

Although we declined to answer Question 7, it is our opinion that the question of sanction under s. 23 must be addressed by the National Court in an appropriate case. That was the majority view in SCR 03 of 1993.

Question 9: Having regard to Sections 99, 100 and 115 of the Constitution, do the Courts have jurisdiction to impose sanctions on those determined as being responsible in answer to Question 7?

In the original reference, Sections 99 and 100 were not raised as issues, and thus, there were no detailed submissions made; therefore, the majority did not express an opinion. However, the majority did express a view in respect of s. 115 following detailed submissions by the National Parliament. The majority concluded that the National Court has jurisdiction to impose sanctions. We note that His Honour the Chief Justice did not address the issue of s. 115 in the original reference: however, he did in the "slip rule" application, and concluded that s. 115 deny jurisdiction to the National Court.

We refer to the Chief Justice’s judgment in Haiveta v. Wingti (No 3) [1994] PNGLR 197 at 206 where His Honour said:

"In some constitutions, it is left to the legislature to interpret the meaning of these principles, but in other types of constitutions, of which, ours is one, the judiciary is clothed with the power and charged with the duty of ensuring, upon application of aggrieved parties, that the legislature and the executive, and indeed, the judiciary as well, do not transgress the limits set upon their powers.

In Papua New Guinea it has come to be accepted that the judiciary is the guardian of Constitution. This is amply and expressly provided for in the Constitution. Sections 18 and 19 provide for the original interpretative jurisdiction of the Supreme Court. Sections 22 and 23 provide for the enforcement of the constitutional rights and sanctions, respectively, and ss 57 and 58 then complete these powers by providing for enforcement of guaranteed rights and freedoms and compensation, respectively. Section 11 declares that the Constitution is the Supreme Law of Papua New Guinea, and subject to s. 10 (construction of written laws), all acts, whether legislative, executive, or judicial, that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective.

These comprehensive provisions charge the judiciary (the National and Supreme Courts) with the power and duty to ensure that the provisions of the Constitution are observed by all the instrumentalities of government, including the legislative, executive or, for that matter, the judiciary."

With respect we agree with these broad general principles that underlie the constitutional regime that we have adopted. But, more so, we are of the view that in making these statements of general principles, the Chief Justice was alluding to the powers of the Courts, and in particular, the National Court having jurisdiction to impose sanctions under s. 23. We consider that the Chief Justice’s opinion in that case supports the utility of s.23, and where there is a transgression of the Constitution, indeed the power to impose sanctions is by virtue of s. 23. We are of the opinion that if one reads s.115 literally, no immunity is conferred on members of the Parliament.

We quote what the former late Chief Justice, Sir Buri Kidu said in Supreme Court Reference No 4 of 1980, [1981] PNGLR 255 at 273:

"The Constitution also obliges every person in Papua New Guinea "to respect and to act in the spirit of, this Constitution .....". This includes Members of Parliament.

They are required, in this case, to ensure that laws they make are constitutional. They are also required, when taking office to swear that they will uphold the Constitution of Papua New Guinea. This obligation must mean something.

For people such as Members of Parliament to make this declaration and ignore it afterwards makes a mockery of the Constitution."

We agree with the submission by the Ombudsman Commission that it makes little sense to have a provision like s. 124 which imposes a duty on members of Parliament and the Parliament itself, complimented by s. 23 which provides for enforcement of that duty, but then interpret s. 115 in a manner that accords complete immunity against enforcement.

We reiterate that the issue of sanctions was addressed in the original reference and the majority reached the same conclusion.

Question 10: Having regards to Sections 99 and 115 of the Constitution, is the question as to the number of days and weeks the Parliament meets in each 12 months, a matter of Parliament procedure, and is a legislative function, and, therefore, not subject to judicial supervision?

Even though this question specifically relates to ss 99 and 115, as it obviously refers to Parliament procedure, we are of the view that it refers to s. 134 of the Constitution. The question as framed is ambiguous because a legislative function can only be exercised when the Parliament exercises its powers to make laws under ss 99 (2) (a) and 109 of the Constitution. Upon hearing opposing submissions by the Ombudsman Commission and the National Parliament on the issue whether s. 134 applies to s. 124 (1), the majority in SCR 3 of 1999 concluded that the National Court has jurisdiction to impose sanctions.

We are of the opinion that where a provision of the Constitution imposes a duty on the Parliament to adhere to a certain procedure and that procedure is not complied with, it will be proper for the National Court to act under s. 23.

Question 11: Having regard to Sections 99 and 115 of the Constitution, do the National and the Supreme Courts have the constitutional authority to:

(a) decide that Parliament is in breach of Section 124 (1) of the Constitution; and

(b) impose sanctions on Parliament or members of Parliament?

This question is indeed a restatement of Question 9, which has already been addressed by the majority in SCR 3 of 1999 and again in Question 9. The answer is yes.

SAWONG J: (dissenting)
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Lawyers for the Referror : NONGGORR & ASSOCIATES
Lawyers for National Parliament : NAROKOBI
Lawyers for the Intervener : OMBUDSMAN COMMISSION