In re Fly River Provincial Executive [2007] PGSC 42; SC917 (31 August 2007)

SC917

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 3 0F 2006

IN THE MATTER OF SECTION 19 OF THE CONSTITUTION
OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

REFERENCE BY
FLY RIVER PROVINCIAL EXECUTIVE

Waigani: Salika J, Gavara- Nanu J, Cannings J
2007: 29, 31 August

CONSTITUTIONAL LAW – special references under Constitution, Section 19 – practice and procedure – whether a special reference must be signed by a proper officer on behalf of the referring authority – whether an authority’s lawyer can sign the reference – Supreme Court Rules, Order 4, Rule 1(e) – consequences of non-compliance with Rules – whether reference should be struck out.

This was an application to strike out a reference under Section 19 of the Constitution on the ground that it was not signed by a proper officer on behalf of the referring authority, as it was signed by the referring authority’s lawyer contrary to Order 4, Rule 1(e) of the Supreme Court Rules.

Held:

(1) Order 4, Rule 1(e) of the Supreme Court Rules, which requires that a Section 19 reference be signed by a proper officer on behalf of the referring authority, is a valid rule of practice and procedure.

(2) A reference signed by the referring authority’s lawyer does not comply with Order 4, Rule 1(e).

(3) The requirement that a proper officer sign the reference exists for sound reasons: to ensure that the special nature of Section 19 proceedings is preserved, that the power to make such a reference is properly controlled and that the decision to make a reference is considered carefully by the referring authority.

(4) The requirement is a fundamental matter affecting the validity of the reference. Failure to comply means that the reference is not properly before the court and is incompetent.

(5) The present reference is not properly before the court and accordingly is struck out.

Cases cited
The following case is cited in the judgment:
SCR No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249

Abbreviations
The following abbreviations appear in the judgment:
CJ – Chief Justice
CPC – Constitutional Planning Committee
eg – example
ie – that is or by which is meant
J – Justice
Ltd – Limited
NCDIC – National Capital District Interim Commission
No – number
OTML – Ok Tedi Mining Ltd
PNG – Papua New Guinea
PNGLR – Papua New Guinea Law Reports
SCR – Supreme Court Reference

APPLICATION

This was an application to strike out a Constitution, Section 19 reference on the ground that it failed to comply with the Supreme Court Rules.

Counsel
K Pilisa, for the referrer
V Narokobi, for the 1st intervener
I Molloy and T Boboro, for the 2nd intervener
R Lindsay, for the 3rd intervener
K Naru, for the 4th intervener

31 August, 2007

1. BY THE COURT: This is a ruling on an application by Ok Tedi Mining Limited to strike out a reference filed under Section 19 of the Constitution by the Fly River Provincial Executive.

THE REFERENCE

2. It challenges the constitutional validity of a law made by the Parliament relating to the continued development of the Ok Tedi mine in the Western Province: the Mining (Ok Tedi Mine Continuation (Ninth Supplemental) Agreement) Act No 7 of 2001.

3. The challenge is based on various grounds, eg that the Act provides for compulsory acquisition of property on unjust terms contrary to Section 53 of the Constitution and that the provisions of the Act are not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind contrary to Section 39 of the Constitution.

4. The reference was filed on 18 April 2006 in the name of the Fly River Provincial Government Executive (the referrer or referring authority). It was signed by Kamo Pilisa of Pilisa Lawyers, lawyers for the referrer. Mr Pilisa’s signature was the only one appearing on the reference.

5. Since then the court has granted leave to various parties to intervene in the proceedings:

• Tigam Malewo for the Tama clan of Ningerum – the first intervener;
• Ok Tedi Mining Ltd – the second intervener;
• PNG Sustainable Development Program Ltd – the third intervener;
• the National Parliament – the fourth intervener.
  

SECTION 19 OF THE CONSTITUTION

6. It allows a limited number of public authorities, including a Provincial Executive, to refer questions relating to the interpretation or application of any provision of a Constitutional Law to the Supreme Court for a binding opinion.

7. Section 19 (special references to the Supreme Court) states:

(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3) The following authorities only are entitled to make application under Subsection (1):—

(a) the Parliament; and

(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c) the Law Officers of Papua New Guinea; and

(d) the Law Reform Commission; and

(e) the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and

(eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).

(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—

(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the Court of any question; and

(c) cases and circumstances in which the Court may decline to give an opinion.

(5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.

THE STRIKE-OUT APPLICATION

8. OTML’s application is based on the ground that the reference was not signed by a proper officer on behalf of the referring authority. It was signed by the referring authority’s lawyer contrary to Order 4, Rule 1(e) of the Supreme Court Rules, which states:

A ... special reference under Constitution Section 19 shall be instituted by a reference and shall ... be signed by the person, court, tribunal, authority or proper officer on behalf of the authority as required by law, making the reference.

9. PNG Sustainable Development Program Ltd and the National Parliament support OTML’s application. The Fly River Provincial Executive and Tigam Malewo oppose it.

10. By this judgment we are only ruling on that application. We are determining whether the reference is competent, ie whether it is properly before the court and whether it should be struck out. We are not addressing the merits of the constitutional reference.

11. Mr Molloy, for OTML, argued that the Rules require that the reference be signed by a proper officer of the referring authority, which could in this case have been the Provincial Governor. This reference was signed by the referring authority’s lawyer, which is contrary to the dictates of Order 4, Rule 1(e) of the Supreme Court Rules. The failure to have the reference properly signed is a serious breach affecting the competence of the reference; and therefore it should be struck out.

12. In support of the argument is the Supreme Court’s decision in SCR No 4 of 1987; Re Central Provincial Government and NCDIC [1987] PNGLR 249. The court (Kidu CJ and Wilson J; Amet J dissenting on this ground) struck out a Section 19 reference as it was not signed by a proper officer; it was signed by the referring authority’s lawyer.

ISSUES

13. Mr Pilisa, the lawyer who signed the reference, appeared for the referring authority on this application. He conceded that the reference was signed contrary to the Rules but argued that that was inconsequential for two reasons:

• Order 4, Rule 1(e) is not a valid rule; but if it is valid
• non-compliance with it is not fatal to the reference.
  

14. They are the issues we must now determine.

IS ORDER 4, RULE 1(e) A VALID RULE?

15. Mr Pilisa argues that the rule is inconsistent with Section 19 of the Constitution, which says nothing about how a reference is to be signed. It is therefore not a valid rule by virtue of Section 184(1) of the Constitution. If the rule is given the interpretation advanced by OTML, the effect will be to deny to Provincial Governments the right to argue a Section 19 reference.

16. We agree with Mr Pilisa that if Order 4, Rule 1(e) were inconsistent with Section 19 or any other provision of the Constitution or any other Constitutional Law or Act of the Parliament it would be invalid. General rules of practice and procedure for the Supreme Court are made by the Judges under Section 184 of the Constitution, which says that the rules must be "not inconsistent with a Constitutional Law or Act of the Parliament".

17. As for rules of practice and procedure for Section 19 references, Section 19(3) says the Supreme Court Rules may make provision "in respect of matters relating to the jurisdiction of the Supreme Court" under Section 19. There is no specific provision saying that the rules made under Section 19(3) must be not inconsistent with a Constitutional Law. But there does not have to be. It is a basic principle of interpretation, per force of Section 10 of the Constitution, that all written laws (other than the Constitution) are to be read and construed subject to the Constitution.

18. We consider that Order 4, Rule 1(e) is a rule which has been made by the Judges – to use the wording of Section 184(1) of the Constitution – "with respect to the practice and procedure in and in relation to the Supreme Court". The rule is also – to use the wording of Section 19(3) of the Constitution – a "provision in respect of matters relating to the jurisdiction of the Supreme Court" under Section 19. On the face of it, the making of this rule is a valid exercise of power by the Judges.

19. We are at a loss to see how the rule is inconsistent with any part of Section 19. There is certainly no direct inconsistency between it and Section 19. Section 19 does not address the issue of form or content of a reference or practical issues such as who can sign the document by which the court’s jurisdiction is revoked. Those practical matters are left to be prescribed by the Rules. There is also no indirect inconsistency between a Rule that stipulates who has to sign a reference and Section 19, which prescribes what the subject matter of a reference is, who can make a reference and what the effect of an opinion by the Supreme Court is.

20. We agree with Mr Naru, for the National Parliament, who submitted that a rule stipulating who has to sign a reference actually reinforces the power and authority of a referring authority to make a reference. It is a check and balance against the making of bogus or unauthorised references. We cannot fathom how that requirement can be regarded as denying or removing the power to make a reference from any referring authority.

21. We reject Mr Pilisa’s argument and conclude that Order 4, Rule 1(e) is a valid rule of practice and procedure for making Section 19 references to the Supreme Court.

IS BREACH OF ORDER 4, RULE 1(e) FATAL TO A SECTION 19 REFERENCE?

22. Mr Pilisa, supported by Mr Narokobi, argues no, for three reasons.

23. First, the rule does not indicate what the consequences of a breach are. It does not say that if a reference is not signed by a proper officer, it has to be struck out.

24. Secondly, Mr Pilisa argued that the breach can easily be remedied by the court giving a direction to the referrer to get the reference properly signed.

25. Thirdly, there has been substantial compliance with the Rules. Mr Narokobi pointed out that the rule about who has to sign a reference is only one of a number of requirements prescribed by Order 4, Rule 1, which prescribes how a reference is to be entitled, whose name has to appear on it and what form it has to be in.

26. We have carefully considered each of these arguments but found none of them convincing.

27. The fact that Rule 1(e) does not expressly say a breach of it will result in the reference being struck out does not mean that a breach is inconsequential. It is a matter of interpreting the significance of the breach, in the context of the unique nature of a case under Section 19 of the Constitution, and drawing a conclusion as to the effect of the breach. That was the process of interpretation undertaken by the Supreme Court in SCR No 4 of 1987. The conclusion was reached that the signing requirement was, due to the very special nature of a Section 19 reference, critical. The breach was fatal to the reference. Kidu CJ and Wilson J stated:

A Section 19 reference is a very special proceeding. There are very few countries in the world whose constitutions allow certain authorities to seek the opinion of their highest Courts without there being any substantive legal action as the basis thereof. The Constitutional Planning Committee (CPC) recognized this and in recommending what is now Section 19 it said, inter alia, as follows:

"It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances." (CPC Report, p 8/16.)

And the procedure is so exceptional that only a few public office-holders and institutions are allowed to use it, a Provincial Executive being one of these authorities. It is because of the special nature of a Section 19 reference that the authority which makes it must consider the matter and sign the reference. In the case of a Provincial Executive the matter should be considered by that body and the reference signed by either the Premier or a member of the Executive. Order 4, Rule 1(e) has added that the reference may be signed also by a "proper officer on behalf of the authority as required by law". We consider that this means two things: (a) that only a person employed by the Authority can sign the reference and (b) that there must be authorisation for such a person to do this on behalf of the Referring Authority.

So Order 4 is a special rule sanctioned by Section 19 of the Constitution. In our opinion, therefore, it cannot be allowed to be overridden by any general rule. It is also inherent in the wording of Order 4, Rule 1(e), that no other person other than those mentioned may sign a special Constitutional Reference.

28. We agree with and adopt the above as a correct statement of the law.

29. It follows that we reject the argument that a breach of Order 4, Rule 1(e) can be remedied by giving a direction to the referrer to get the reference properly signed. The reference has been put before the court and it is incumbent on the referring authority and its lawyer to ensure that the reference meets the requirements of the Rules. This is not a mere technical requirement. It is not a matter of the court nitpicking, insisting on a referrer filing in a correct form and getting it signed by the right people. The signing requirement is something that goes to the validity of the reference. If the court is to hear and determine a Section 19 reference it must be satisfied that the jurisdiction of the court has been properly invoked and that the referring authority has made a considered decision to make the reference. The court can only be satisfied of those things if the reference is properly signed.

30. It is necessary to insist on strict compliance with Order 4, Rule 1(e) to preserve the integrity of the Section 19 procedure and to ensure that the power to make such a reference is properly controlled. It is not sufficient, as suggested by Mr Narokobi, to comply with the other requirements of the Rules and miss out on Rule 1(e).

31. In the case of a reference by a Provincial Executive, Order 4, Rule 1(e) would be complied with if the Provincial Governor signed it for and on behalf of the Provincial Executive Council and referred to and described (eg by date and resolution number) the decision of the Provincial Executive Council to make the reference. This is necessary as it is the Provincial Executive that is the authority entitled to make the reference – not the Provincial Governor. Section 19(3)(eb) of the Constitution – the source of power of a Provincial Executive to make a reference – must be interpreted and applied consonantly with Sections 23 and 24 of the Organic Law on Provincial Governments and Local-level Governments – which establishes the Provincial Executive Council as the executive arm of each Provincial Government, and prescribes its composition, functions and procedures and provides that the Governor is the Chairman of the Council.

32. We conclude that breach of Order 4, Rule 1(e) is fatal to a Section 19 reference. The present reference is therefore incompetent and must be struck out.

OTHER MATTERS

33. Our order on this application will bring the present reference to an end. If the Fly River Provincial Executive is still intent on making a constitutional challenge to the Act of the Parliament that was the subject of this reference, it would seem open to it to make a considered decision to file a new reference, raising similar issues, provided of course that the new reference was properly signed in accordance with the Rules and in the manner described by the Court.

34. This may cause inconvenience to the parties and delay resolution of the constitutional issues involved but we feel that this is necessary to ensure that the integrity of the Section 19 reference procedure is preserved.

ORDER

35. We order that the reference is struck out for non-compliance with the Supreme Court Rules, Order 4, Rule 1(e).

Judgment accordingly.

_____________________
Pilisa Lawyers: Lawyers for the referrer
Narokobi Lawyers: Lawyers for the 1st intervener
Allens Arthur Robinson: Lawyers for the 2nd intervener
Gadens Lawyers: Lawyers for the 3rd intervener
Kelly Naru Lawyers: Lawyers for the 4th intervener