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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REF NO 6 OF 2022
SPECIAL REFERENCE PURSUANT TO
CONSTITUTION, SECTION 19
REFERENCE BY HON PILA NININGI LLB MP,
ATTORNEY-GENERAL OF PAPUA NEW GUINEA &
PRINCIPAL LEGAL ADVISER
TO THE NATIONAL EXECUTIVE COUNCIL
Waigani: Gavara-Nanu ACJ, Batari J,
Cannings J, Manuhu J, David J
2022: 30, 31 May
CONSTITUTIONAL LAW – Constitution, Subdivision VI.2.C (composition of the National Parliament) – disqualifications from membership – Constitution, s 103(3) – whether a person who has been convicted of an indictable offence committed after the coming into operation of Constitutional Amendment No 24 is qualified to be or remain a member of the Parliament – relevance of length of sentence – relevance of date of commission of offence – whether a person who has completed their sentence is qualified to be or remain a member of the Parliament – whether a person who has been granted a free pardon is permanently disqualified from being a member of the Parliament – whether Constitution, s 103(3)(e) conflicts with Constitution, ss 50(1) and 103(3)(c).
Various questions of constitutional interpretation and application were referred by the Attorney-General and Principal Legal Adviser to the Supreme Court under s 19(1) of the Constitution, seeking the Court’s opinion on the meaning and effect of s 103(3)(e) of the Constitution, which was inserted in the Constitution in 2002 by Constitutional Amendment No 24 – Electoral Reforms. Section 103(3)(e) states:
A person is not qualified to be, or to remain, a member of the Parliament if ... he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms.
The questions centred on whether s103(3)(e) operates to disqualify from membership of the Parliament, a person who has been convicted of an indictable offence and has been sentenced to a period of not more than nine months imprisonment or completed their sentence. If the offence was committed on a date after the date of commencement of s 103(3)(e), is such a person disqualified from being a member of the Parliament? This question arises in the light of Constitution, s 103(3)(c), which provides that a person is not qualified to be or to remain a member of the Parliament if they are “under sentence of death or imprisonment for a period of more than nine months”. Other questions concerned the effect on disqualification under s 103(3)(e) of a free pardon being granted to the person who has been convicted of an indictable offence. Four public office-holders were granted leave to intervene in the case: the Public Solicitor (first intervener), the Speaker of the National Parliament (second intervener), the Electoral Commissioner (third intervener) and the Public Prosecutor (fourth intervener).
Held:
(1) Section 103(3)(e) operates to permanently disqualify from membership of the Parliament, a person who has been convicted of an indictable offence committed after the date of commencement of Constitutional Amendment No 24 – Electoral Reforms, irrespective of the length of their sentence and whether they have completed their sentence.
(2) It is, subject to some exceptions in s 103(6) (if they are granted a free pardon or their conviction is quashed), a lifetime disqualification.
(3) Constitutional Amendment No 24 – Electoral Reforms commenced operation on 25 June 2002. A person convicted of an indictable offence that was committed after that date, is caught by s 103(3)(e) and is not qualified to be or remain a member of the Parliament and is not an eligible candidate.
(4) A nomination to be a candidate by such a person must be rejected by the Electoral Commission.
(5) If their nomination is accepted, it is open to be set aside by the National Court or the Supreme Court as being unlawful.
(6) If their nomination is not set aside and such a person is a candidate in the election and they are elected, their election is open to be declared null and void via an election petition challenging their election under the Organic Law on National and Local-level Government Elections.
Cases Cited
The following cases are cited in the judgment:
HROI No 2 of 2015 (2017) N6939
In the matter of enforcement of Basic Rights under the Constitution, Section 57 re Release of Prisoners on Licence (2008) N3421
SC Ref No 2 of 2020, Reference by the Bougainville Executive re Sections 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952
The State v Tamate (2021) SC2132
The State v Tanedo [1975] PNGLR 395
Yama v Singirok (2020) SC1982
Counsel
T Tanuvasa & T Mileng, for the Referrer, the Attorney-General & Principal Legal Adviser
L B Mamu, the First Intervener, the Public Solicitor
S Ranewa, for the Second Intervener, the Speaker of the National Parliament
J Simbala, for the Third Intervener, the Electoral Commissioner
P Kaluwin, the Fourth Intervener, the Public Prosecutor
31st May, 2022
1. BY THE COURT: Thirteen questions of constitutional interpretation and application have been referred by the Attorney-General and Principal Legal Adviser, Hon Pila Niningi LLB MP, to the Supreme Court under s 19(1) of the Constitution, seeking the Court’s opinion on the meaning and effect of s 103(3)(e) of the Constitution and its relationship with two other provisions of the Constitution: s 50 and s 103(3)(c).
2. Section 103(3)(e) was inserted in the Constitution in 2002 by Constitutional Amendment No 24 – Electoral Reforms. Section 103(3)(e) states:
A person is not qualified to be, or to remain, a member of the Parliament if ... he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms.
3. The questions centre on whether s 103(3)(e) operates to disqualify from membership of the Parliament, a person who has been convicted of an indictable offence and has been sentenced to a period of not more than nine months imprisonment or completed their sentence. Does the application of s 103(3)(e) in such cases conflict with s 50, which confers a qualified right on all citizens to be elected to stand for elective public office?
4. If the offence was committed on a date after the date of commencement of s103(3)(e), is such a person disqualified for life from being a member of the Parliament? This is a legitimate question in the light of Constitution, s 103(3)(c), which provides that a person is not qualified to be or to remain a member of the Parliament if they are “under sentence of death or imprisonment for a period of more than nine months”.
5. Other questions concern the effect on disqualification under s 103(3)(e) of a free pardon being granted to the person who has been convicted of an indictable offence.
LAW
6. The two provisions of the Constitution at the centre of this reference are ss103 and 50.
7. Section 103 (qualifications for and disqualifications from membership) states:
(1) A member of the Parliament must be not less than 25 years of age.
(2) A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for a continuous period of two years immediately preceding his nomination or for a period of five years at any time and must pay a nomination fee of K1,000.00.
(3) A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d) he is adjudged insolvent under any law; or
(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24—Electoral Reforms; or
(f) he is otherwise disqualified under this Constitution.
(4) Where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of Subsection (3)(d) is suspended until—
(a) the end of any statutory period allowed for appeals against the conviction or sentence; or
(b) if an appeal is lodged within the period referred to in paragraph (a), the appeal is determined.
(5) The references in Subsection (4), to appeals and to the statutory period allowed for appeals shall, where there is provision for a series of appeals, be read as references to each appeal and to the statutory period allowed for each appeal.
(6) If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
(7) In this section—
"appeal" includes any form of judicial appeal or judicial review;
"statutory period allowed for appeals" means a definite period allowed by law for appeals, whether or not it is capable of extension, but does not include an extension of such a definite period granted or that may be granted unless it is granted within that definite period.
8. Section 50 (right to vote and stand for public office) is one of the human rights provisions contained in Division III.3 (Basic Rights) of the National Constitution. It states:
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
INTERVENERS
9. Four public office-holders have been granted leave to intervene in the case:
CATEGORIES
10. The thirteen questions have been grouped into three categories:
A: questions (i) to (ix) concern s 103(3) in general;
B: question (x) raises the issue of whether there is any conflict between s 103(3)(e) and ss 50(1) and 103(3)(c);
C: questions (xi) and (xiii) (question (xii) has been abandoned) concern s 103(6).
11. We address each of the 13 questions in turn.
QUESTION (i): IS THE PENALTY OF “IMPRISONMENT OF MORE THAN NINE MONTHS” REFERRED TO IN SECTION 103(3)(c) OF THE CONSTITUTION A MISDEMEANOUR
OR AN INDICTABLE OFFENCE?
12. There is a categorisation of offences in the Criminal Code, s 3, which provides a pointer to the answer to this question. Section 3 (division of offences) states:
(1) Offences are of three kinds—
(a) crimes; and
(b) misdemeanours; and
(c) simple offences.
(2) Crimes and misdemeanours are indictable offences, for which offenders unless otherwise expressly stated, shall be prosecuted or convicted—
(a) on indictment; or
(b) in accordance with Section 420; or
(c) in accordance with any other law.
(3) An offence not otherwise designated is a simple offence.
(4) Subject to any other law, a person guilty of a simple offence may be summarily convicted before a court of summary jurisdiction.
13. A misdemeanour is an indictable offence. When s 103(3)(c) refers to a person being “under sentence of death or imprisonment for a period of more than nine months”, it does not matter whether the sentence is in respect of a crime or a misdemeanour or a simple offence or an indictable offence. Those categories of offences are irrelevant to the application of s103(3)(c).
Answer to question (i)
14. The penalty refers to all offences including misdemeanours and indictable offences.
QUESTION (ii): IS SECTION 103(3)(e) OF THE CONSTITUTION NOW REDUNDANT BY OPERATION OR IN LIGHT OF SECTION 103(3)(c) OF THE CONSTITUTION? [sic]
15. This question is poorly drafted. The question, we think, was intended to ask whether s 103(3)(c) – which was in the
Constitution in its original form when it commenced operation on Independence Day, 16 September 1975 – is now made redundant, in light of
103(3)(e), which was inserted in 2002 by Constitutional Amendment No 24 – Electoral Reform.
16. The wording of this question was raised at the hearing of the reference, but there was no acknowledgment by counsel for the referrer, Mr Tanuvasa, that there was any error in the wording, so we will answer the question as it is posed. Is 103(3)(e) now redundant? Of course not, it is the most recent provision, having been made in 2002, amongst the various provisions at the centre of this reference.
Answer to question (ii)
No.
QUESTION (iii): DOES A PERSON WHO HAS BEEN CONVICTED OF AN INDICTABLE OFFENCE FALL UNDER SECTION 103(3)(c) OF THE CONSTITUTION?
17. This question relates to s 103(3)(c), which states:
A person is not qualified to be, or to remain, a member of the Parliament if ... subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months.
18. As we indicated in our answer to question (i), when s 103(3)(c) refers to a person being “under sentence of death or imprisonment for a period of more than nine months”, it does not matter whether the sentence is in respect of a crime or a misdemeanour or a simple offence or an indictable offence. A person who has been convicted of an indictable offence clearly falls under s 103(3)(c).
Answer to question (iii)
Yes.
QUESTION (iv): DOES CONSTITUTIONAL AMENDMENT NO 24 – ELECTORAL REFORMS, REFERRED TO [IN] SECTION 103(3)(e) OF THE CONSTITUTION, AFTER BEING
PASSED BY THE NATIONAL PARLIAMENT, COME INTO EFFECT AND COMMENCE OPERATION UPON CERTIFICATION BY THE SPEAKER OF THE NATIONAL PARLIAMENT
ON 25 JUNE 2002?
19. At this point it is convenient to set out the whole of Constitutional Amendment No 24 – Electoral Reforms, which was made by the Parliament in 2002. It was the amending Law that amended s 103 of the Constitution by inserting a new s 103(3)(e). It contained only two sections. We quote it in full, including the certification clause by the Speaker:
Constitutional Amendment No 24 – Electoral Reforms
Being a law to alter the Constitution by amending the provisions relating to the Electoral System.
Made by the National Parliament to come into operation on certification.
Section 103(3) of the Constitution is amended by repealing Paragraph (d) and replacing it with the following:-
“(d) he is adjudged insolvent under any law; or
(e) he has been convicted under any law of an indictable offence committed after the coming into operation of the Constitutional Amendment No 24 – Electoral Reforms; or
(f) he otherwise disqualified under this Constitution.”
Section 129(1)(a) of the Constitution is amended by repealing the words “the Electoral Commission” and replacing them with the following:-
“an appropriate body established by an Organic Law”
I hereby certify that the above is a fair print of the Constitutional Amendment No 24 – Electoral Reforms which has been made by the National Parliament.
Clerk of the National Parliament
20. To appreciate the significance of the amendment that was made to s 103(3), it is worthwhile setting out the wording of s 103 prior to the amendment. The former s 103(3) stated:
A person is not qualified to be, or to remain, a member of the Parliament if—
(a) he is not entitled to vote in elections to the Parliament; or
(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or
(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d) he is otherwise disqualified under this Constitution.
Constitutional Amendment No 24 – Electoral Reforms repealed the former s 103(3)(d) and replaced it with:
21. Now, getting back to question (iv), it makes a simple enquiry: did Constitutional Amendment No 24 – Electoral Reforms commence operation on the date of certification by the Speaker?
22. It is an agreed and accepted fact that it was certified by the Speaker, then the Honourable Bernard M Narokobi MP, on 25 June 2002. The answer is provided by the Law itself. After the long title – “Being a law to alter the Constitution by amending the provisions relating to the Electoral System”, there is a commencement clause:
Made by the National Parliament to come into operation on certification.
23. Clearly Constitutional Amendment No 24 – Electoral Reforms commenced operation on the date of certification by the Speaker, 25 June 2002.
24. This was consistent with s 110 (certification as to making of laws) of the Constitution, which states:
(1) Subject to Section 137(3) (Acts of Indemnity) and to any Act of the Parliament made for the purposes of Subsection (3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders of the Parliament, that a law has been made by the Parliament and, subject to Subsection (2), the law comes into operation on the date of the certificate.
(2) Nothing in Subsection (1) prevents a law—
(a) being expressed to come, or to be deemed to have come, into force on a date specified by, or fixed in accordance with, law; or
(b) being retrospective or retroactive.
(3) An Act of the Parliament or the Standing Orders of the Parliament may make provision under which a law made by the Parliament may, at the direction of the Head of State, acting with, and in accordance with, the advice of the National Executive Council, be recommitted to the Parliament for the consideration of amendments proposed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council.
25. If Constitutional Amendment No 24 – Electoral Reforms had not expressly stated that it would come into operation on certification, it would have still, by virtue of s 110(1), come into operation on certification, which in this case was 25 June 2002.
Answer to question (iv)
Yes.
QUESTION (v): IF THE ANSWER TO QUESTION (iv) IS YES, DOES CONSTITUTIONAL AMENDMENT NO 24 – ELECTORAL REFORMS, REFERRED TO SECTION 103(3)(e)
OF THE CONSTITUTION REDUNDANT BY OPERATION OR IN LIGHT OF SECTION 103(3)(c) OF THE CONSTITUTION? [sic]
26. This question is so poorly drafted, we cannot make sense of it. We invoke Order 4 rule 18 of the Supreme Court Rules 2012 (a rule made under s 19(4)(c) of the Constitution, in respect of cases and circumstances in which the Court may decline to give an opinion) which states:
The court may decline to give an opinion on the question the subject of the reference or special reference if in [its] opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
27. We consider that this question is trivial and unlikely to have any immediate relevance to the circumstances of Papua New Guinea. We decline to give an opinion on the question.
Answer to question (v)
Decline to give opinion.
QUESTION (vi): IF THE ANSWER TO QUESTION (iv) IS NO, DOES CONSTITUTIONAL AMENDMENT NO 24 – ELECTORAL REFORMS, AFTER BEING PASSED BY THE NATIONAL
PARLIAMENT, COME INTO EFFECT AND COMMENCE OPERATION IN OR AROUND 2006 BY EFFECT OF LEGISLATIVE INSTRUCTION 881 OF 2006?
28. We have already determined that the date of commencement of Constitutional Amendment No 24 – Electoral Reforms was 25 June 2002.
It was no other date.
Answer to question (vi)
No.
QUESTION (vii): WHAT EFFECT WOULD SECTION 103(3)(e) OF THE CONSTITUTION HAVE ON A PERSON INTENDING TO STAND FOR ELECTIONS, IF THE PERSON WAS CONVICTED
OF AN INDICTABLE OFFENCE COMMITTED AFTER THE COMING INTO EFFECT AND OPERATION OF CONSTITUTIONAL AMENDMENT NO 24 – ELECTORAL
REFORMS?
29. Section 103(3)(e) means that a person who is convicted of an indictable offence is not qualified to be or to remain a member
of the National Parliament if they committed the offence after 25 June 2002. Such a person is not eligible to stand for election.
If they nominate, their nomination ought to be rejected by the Electoral Commission.
30. If their nomination is accepted, it is open to be set aside by the National Court or the Supreme Court as being unlawful.
31. If their nomination is not set aside and such a person is a candidate in the election and they are elected, their election would be open to be declared null and void via an election petition challenging their election under the Organic Law on National and Local-level Government Elections (see generally Yama v Singirok & Electoral Commission (2020) SC1982).
32. Identification of the date of commission of the offence is critical. It must be after 25 June 2002. A person might be convicted of an indictable offence after 25 June 2002 but if they committed the offence before 25 June 2002, they are not caught by s 103(3)(e).
Answer to question (vii)
33. The person is not an eligible candidate.
QUESTION (viii): IS SECTION 103(3)(e) OF THE CONSTITUTION A STANDALONE PROVISION AND DOES IT IMPOSE A LIFETIME DISQUALIFICATION ON A PERSON WHO HAS
BEEN CONVICTED OF AN INDICTABLE OFFENCE, IF THE OFFENCE HAS BEEN COMMITTED AFTER THE COMING INTO EFFECT AND OPERATION OF CONSTITUTIONAL
AMENDMENT NO 24 – ELECTORAL REFORMS?
34. This is a double-barrelled question. It asks first whether s 103(3)(e) is a standalone provision, and secondly whether it
imposes a lifetime disqualification if a person has been convicted of an indictable offence after 25 June 2002.
35. We consider it unnecessary to answer the first part of the question. Describing any statutory provision as a “standalone” is not a technical or particularly helpful description. No provision is really a standalone provision, particularly a provision of the Constitution, due to the guidance provided by schedule 1.5 (fair meaning to be given to language used) of the Constitution, which states:
(1) Each Constitutional Law is intended to be read as a whole.
(2) All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.
36. So whether 103(3)(e) is described as a standalone provision is beside the point.
37. The second part of the question is much more important: Does 103(3)(e) impose a lifetime disqualification on a person convicted of an indictable offence that was committed after the coming into effect of Constitutional Amendment No 24 – Electoral Reforms? The answer is yes. Section 103(3)(e) means what it says. It amounts to a lifetime disqualification.
Answer to question (viii)
38. Decline to say whether s 103(3)(e) is a standalone provision. But as to whether it imposes a lifetime disqualification, the answer is yes.
QUESTION (ix): WHAT EFFECT WOULD SECTION 103(3)(e) OF THE CONSTITUTION HAVE ON A PERSON INTENDING TO STAND FOR ELECTIONS, IF THE PERSON WAS CONVICTED
OF AN INDICTABLE OFFENCE COMMITTED PRIOR TO THE COMING INTO EFFECT AND OPERATION OF CONSTITUTIONAL AMENDMENT NO 24 – ELECTORAL
REFORMS?
39. If a person is convicted of an indictable offence, which they committed on a date prior to the coming into effect of Constitutional Amendment No 24 – Electoral Reforms (25 June 2002), they are not caught by 103(3)(e).
40. Section 103(3)(e) does not operate retrospectively. It could have been expressed in such terms, consistently with s 110(2) of the Constitution, but it isn’t. It operates prospectively and only applies to persons convicted of indictable offences that were committed after 25 June 2002.
Answer to question (ix)
No effect.
QUESTION (x): DOES SECTION 103(3)(e) OF THE CONSTITUTION CONFLICT WITH SECTION 50(1) AND 103(3)(c) OF THE CONSTITUTION?
41. We see no conflict between on the one hand, s 103(3)(e), and on the other hand, s 50(1) or s 103(3)(c).
Section 50(1)
42. As to s 50(1), it must be appreciated that it is one of the key human rights provisions of the Constitution. Like all the human rights provisions in the Constitution (including those conferring fundamental rights, viz the right to life (s 35), the right to freedom from inhuman treatment (s 36) and the right to full protection of the law (s 37)), s 50 does not confer absolute rights. All human rights are qualified in some way.
43. We respectfully endorse the following dicta of Salika CJ in Yama v Singirok (2020) SC1982 at paras 27 to 29:
While PNG is a free country to exercise one’s freedom and human rights, it must be borne in mind that the freedom and the right to stand for or nominate for public office is not an absolute right. That right is regulated by law, s 50 and s 103 of the Constitution, and is not a simple “walk in the park” so to speak. Sections 50 and 103 of the Constitution quoted above give clear requirements for a person intending to hold elective public office to possess. The provisions of the Constitution give every eligible citizen the right to hold elective public office. That eligible citizen is then given a right to a reasonable opportunity to secure such elective office through the electoral process which must be “genuine, periodic and free”. See Supreme Court Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214.
In this case it is abundantly clear that James Yali did not meet the lawful requirements, thus it is plainly clear that James Yali was not an eligible citizen to be a candidate for election to National Parliament. I have no doubt he is a citizen, but not an eligible one for the reason that he was then a convicted prisoner of the State and still serving his 12-year sentence, even though he was on parole. He was not free then but still serving his 12-year prison term. The combined effect of the actions of the Electoral Commission and James Yali is that they breached s 50(1)(a) and s 103(3)(c) of the Constitution; the Electoral Commission by permitting James Yali to nominate as a candidate and James Yali by nominating.
The Electoral Commission needs to put in place a screening mechanism to quarantine every candidate who nominates to contest elections to become Members of Parliament and before commencement of polling as decided by the Supreme Court in Kevin Masive v Okuk & Another [1985] PNGLR 263. That process should be consistent with the Constitutional and Organic law provisions. In this case and cases from the past the Electoral Commission’s attitude has been “wait until after the elections and you can come by way of an election petition”. That lax attitude has a serious flaw as has happened in this case and that is an illegal candidate was allowed to nominate and, as a result, voters’ sacred votes were seriously abused and wasted.
44. We also endorse dicta of Cannings J in SC Ref No 2 of 2020, Reference by the Bougainville Executive re Sections 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952, a constitutional reference that raised questions about whether provisions of the Bougainville Constitution that regulated eligibility for the office of President of Bougainville were in conflict with the National Constitution, s 50.
45. Cannings J pointed out in that case that s 50 confers on certain persons, certain rights, and provides for limitations on the exercise of those rights. It will be recalled that s 50 states:
(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—
(a) is under sentence of death or imprisonment for a period of more than nine months; or
(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or
(ba) has dual citizenship of another country,
has the right, and shall be given a reasonable opportunity—
(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and
(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and
(e) to hold public office and to exercise public functions.
(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
46. The rights conferred by s 50(1) are conferred only on persons who have all the following characteristics (prescribed by ss 50(1)(a), (b) and (c)):
47. The persons who hold s 50(1) rights have the following rights under ss 50(1)(c), (d) and (e):
48. Section 50(2) provides that the exercise by holders of s 50(1) rights of those rights:
49. Section 50(1) begins with the words “Subject to the express limitations imposed by this Constitution”; and this is where the dicta of Salika CJ in Yama v Singirok (2020) SC1982 must again be highlighted. All the rights conferred by s 50(1) are “subject to the express limitations imposed” by the Constitution.
50. Section 103(3)(e) is an express limitation: if a person has been convicted of an indictable offence that they committed after 25 June 2002, they are disqualified from being or remaining a member of the Parliament. The only way s 103(3)(e) could have been more express if it had announced itself as ‘an express limitation for the purposes of s 50(1)’. That would have been stating the obvious. It is unnecessary.
51. Section 103(3)(e) is an express limitation on rights conferred by s 50(1), including the right to be elected to elective public office. There is no conflict between s 103(3)(e) and s 50(1).
Section 103(3)(c)
52. It will be recalled that s 103(3)(c) provides:
A person is not qualified to be, or to remain, a member of the Parliament if ... subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months.
53. Section 103(3)(c) disqualifies a person who has been convicted of an offence from being or remaining a member of the Parliament according to the nature of the sentence to which the person is subject. It is in contrast to s 103(3)(e), which disqualifies a person who has been convicted of an offence from being or remaining a member of the Parliament according to the nature of the offence (it must be an indictable offence) and the date of commission of the offence (it must be after 25 June 2002). There is no conflict between the two provisions.
Answer to question (x)
No.
QUESTION (xi): DOES SECTION 103(6) OF THE CONSTITUTION IN RELATION TO PARDON CONFLICT WITH SECTION 103(3)(e) OF THE CONSTITUTION IN RELATION TO
PERMANENT DISQUALIFICATION FROM MEMBERSHIP UPON CONVICTION OF AN INDICTABLE OFFENCE COMMITTED AFTER THE COMING INTO OPERATION OF
CONSTITUTIONAL AMENDMENT NO 24 – ELECTORAL REFORMS?
54. Section 103(6) is in these terms:
If a free pardon is granted, a conviction is quashed or a sentence is changed to a sentence of imprisonment for nine months or less, or some other form of penalty (other than death) is substituted, the disqualification ceases, and if at the time of the pardon, quashing, change of sentence or substitution of penalty the writ for the by-election has not been issued the member is restored to his seat.
55. The issue that question (xi) is intended to address, we think, is: what happens if a person who has been convicted of an indictable offence that was committed after the coming into operation of Constitutional Amendment No 24 – Electoral Reforms:
56. This is not a straightforward question, as s 103(6) remains in s 103 in its original form. In its original form (ie before Constitutional Amendment No 24 – Electoral Reforms commenced operation) the disqualifications regarding persons who had been convicted of committing an indictable offence were covered only by s 103(3)(c).
57. Section 103(3)(c) began – and still does begin – with the words “subject to Subsections (4) to (7)”. However, the new disqualifying provision, s 103(3)(e), does not begin with such words. Arguably, the failure of s 103(3)(e) to include similar words of exception means that there are no exceptions: once caught by s 103(3)(e), the person is disqualified for life, even if they are granted a free pardon or have their conviction quashed or their sentence changed.
58. While such interpretations are available on the literal meaning of the provisions, two of the scenarios would be absurd: a person who has been granted a free pardon would still be disqualified and a person who has had their conviction quashed would still be disqualified. Both of those scenarios would be plainly unjust. The Constitution must be interpreted in a way that avoids absurd or plainly unjust consequences.
59. We consider that the disqualification of a person who is caught by s 103(3)(e) will cease if they are granted a free pardon, as distinct from a conditional pardon or a release on licence (In the matter of enforcement of Basic Rights under the Constitution, Section 57 re Release of Prisoners on Licence (2008) N3421).
60. A pardon involves an exercise of the power of mercy under Subdivision VI.4.D (the power of mercy) of the Constitution, which consists of two sections: ss 151 and 152.
61. Section 151 (grant of pardon etc) of the Constitution states:
(1) Subject to this Subdivision, the Head of State [ie the Governor-General, per Constitution, s 82(2), Schedule 1.21(a)(iii)], acting with, and in accordance with, the advice of the National Executive Council, may grant to a person convicted of an offence or held in penal detention under a law of Papua New Guinea—
(a) a pardon, either free or conditional; or
(b) a remission or commutation of sentence; or
(c) a respite of the execution of sentence; or
(d) a less severe form of punishment for that imposed by any sentence,
and may remit or refund, in whole or in part, any fine, penalty or forfeiture paid or payable to a governmental body.
(2) Where an offence has been committed, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may grant a pardon, either free or conditional, to an accomplice who gives evidence that leads to the conviction of a principal offender.
(3) Except in a case referred to in Subsection (2) or as otherwise permitted by or under an Act of the Parliament, the exercise of the power conferred by Subsection (1) shall not be held out, offered or promised in advance of conviction.
(4) Nothing in this section prevents the establishment by law of systems of probation, parole or release on licence, or any similar systems.
62. Section 152 (Advisory Committee on the Power of Mercy) states:
(1) An Organic Law shall make provision for and in respect of an Advisory Committee on the Power of Mercy, and for and in respect of its appointment, constitution, powers and procedures.
(2) Before giving any advice to the Head of State under Section 151(1) (grant of pardon, etc.), the National Executive Council shall consider a report from the Advisory Committee.
63. As pointed out in HROI No 2 of 2015 (2017) N6939 (some parts, but not this part, of which decision were overturned on appeal by the Supreme Court in The State v Tamate (2021) SC2132), the term ‘power of mercy’ describes the power vested in the Executive arm of the National Government to decide, in a particular case, to lessen, soften or in some other way avoid the effect of a conviction and/or sentence imposed on an offender by the courts. This is done by the Governor-General under s 151 (grant of pardon etc) of the Constitution, by granting a:
64. The term ‘pardon’ is not defined by any law of Papua New Guinea. The legal effect of a pardon will depend on whether it is expressed to be free or conditional. It is not necessarily the same thing as an acquittal (The State v Tanedo [1975] PNGLR 395). However, we consider that for the purposes of s 103(3)(e), a free pardon will nullify the disqualification that would otherwise be triggered by the conviction for an indictable offence that was committed after 25 June 2002.
65. Likewise if a person’s conviction is quashed, the disqualification that would otherwise be triggered by the conviction for an indictable offence that was committed after 25 June 2002, would be nullified.
66. However, if their sentence is changed in the manner prescribed by s 103(6), that would have no effect on the operation of s 103(3)(e).
67. We therefore see no conflict between s 103(3)(e) and s 103(6).
Answer to question (xi)
No.
QUESTION (xii): WHERE A PERSON IS CONVICTED FOR AN INDICTABLE OFFENCE COMMITTED AFTER THE COMING INTO OPERATION OF CONSTITUTIONAL AMENDMENT NO 24
– ELECTORAL REFORMS, PARTICULARLY SECTION 103(3)(e) AND IS UNDER SENTENCE, PAROLED, OR HAS SERVED HIS SENTENCE, WILL HE BE
QUALIFIED TO STAND FOR ELECTIONS UPON GRANT OF PARDON UNDER SECTION 103(6) OF THE CONSTITUTION?
68. This question was abandoned at the hearing of the reference.
QUESTION (xiii): DOES SECTION 103(6) OF THE CONSTITUTION UNDERMINE THE EFFECT OF A CRIMINAL CONVICTION TO THE EXTENT THAT THE TRUE PURPOSE AND INTENTION
OF SECTION 103(3)(e) OF THE CONSTITUTION IS DEFEATED?
69. We have in effect answered this question through our determination of question (xi). The two provisions, s 103(3)(e) and s
103(6), are not in conflict and can be read together harmoniously. Section 103(6) does not, properly interpreted, undermine the effect
of a criminal conviction. Nor does it defeat the purpose and intention of s 103(3)(e).
Answer to question (xiii)
No.
ORDER
(1) The 13 questions the subject of this reference are answered as follows:
Question (i): The penalty refers to all offences including misdemeanours and indictable offences.
Question (ii): No.
Question (iii): Yes.
Question (iv): Yes.
Question (v): Decline to give opinion.
Question (vi): No.
Question (vii): The person is not an eligible candidate.
Question (viii): Decline to say whether s 103(3)(e) is a standalone provision. But as to whether it imposes a lifetime disqualification, the answer is yes.
Question (ix): No effect.
Question (x): No.
Question (xi): No.
Question (xii): Abandoned.
Question (xiii): No.
(2) The parties shall bear their own costs of the reference, including all applications and interlocutory proceedings relating to the reference.
Judgment accordingly.
________________________________________________________________
Solicitor-General: Lawyer for the Referrer
Public Solicitor: Lawyer for the First Intervener
Kawat Lawyers: Lawyers for the Second Intervener
Harvey Nii Lawyers: Lawyers for the Third Intervener
Public Prosecutor: Lawyer for the Fourth Intervener
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