SCR No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518 (10 December 1981)

Papua New Guinea Law Reports - 1981

[1981] PNGLR 518 - SCR No 2 of 1981; Re Electoral Boundaries 

[1981] PNGLR 518

SC217

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 2 OF 1981

IN THE MATTER OF A SPECIAL REFERENCE UNDER SECTION 19 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Kidu CJ Kapi Miles JJ

2 December 1981

10 December 1981

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Special reference under s. 19 - What constitutes - “Interpretation or application of any provision of a Constitutional Law”- Question of application of parliamentary resolution - Constitution, ss. 19(1), 125(1) - Organic Law on National Elections, s. 40.

PRACTICE AND PROCEDURE - Supreme Court - Special reference under s. 19 of Constitution - What constitutes.

The purposes of a special reference to the Supreme Court under s. 19(1) of the Constitution, of any question “relating to the interpretation or application of any provision of a Constitutional Law” are:

(a)      to establish what the law on a particular constitutional point is; to interpret a word or words or provision of a relevant constitutional law; and

(b)      to establish what the constitutional law is on a particular issue; to apply by interpreting the same, any constitutional law which is relevant to the issue raised in the reference.

A resolution of the National Parliament is not a Constitutional Law, and a question of the application, or intention of such a resolution does not relate to the interpretation or application of any provision of a constitutional law.

The question whether “electoral boundaries for the 1982 elections” are “as depicted in the maps and descriptions attached to the 1977 report of the Boundaries Commission or are they as intended by the 1977 Report and depicted in maps to be produced before the Supreme Court”, does not relate to the interpretation or application of s. 125 of the Constitution, nor of s. 40 of the Organic Law on National Elections, nor of any other constitutional law and is therefore incompetent to be brought under s. 19 of the Constitution.

Reference

This was a special reference to the Supreme Court by the Principal Legal Adviser to the National Executive pursuant to s. 19(1) of the Constitution.

Counsel

A. M. Pert, for the Principal Legal Adviser.

P. Sam, for the Parliamentary Counsel.

Cur. adv. vult.

10 December 1981

KIDU CJ:  The Principal Legal Adviser to the National Executive has referred the following question:

“Are the electoral boundaries for the 1982 elections as depicted in the maps and descriptions attached to the 1977 report of the Boundaries Commission or are they as intended by the 1977 report and depicted in maps to be produced before the Supreme Court.”

Before the court can entertain the Reference, a preliminary question arises—that is, whether the question referred comes under s. 19(1) of the Constitution, which provides:

“(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.” (Emphasis mine).

Is the Reference an application to this Court to give its opinion on a “... question relating to the interpretation or application of any provision of a Constitutional Law”? Both counsel for the Principal Legal Adviser and the Parliamentary Counsel submit that this is such a question.

On 7th February, 1977, Parliament adopted the recommendations of the Boundaries Commissions which reads:

“7.      RECOMMENDATIONS.

The Boundaries Commissions:

(a)      formally recommends to the Parliament that the number of provincial electorates be 20 and that their boundaries be the same as those of the provinces and the National Capital District; and

(b)      recommends to the Parliament that the number of open electorates be 89 and their boundaries as set out in the maps and descriptions forwarded herewith.” (Emphasis mine).

Parliament made the above determination under s. 125(1) of the Constitution, which provides:

“The number of open electorates and of provincial electorates and their boundaries shall be determined by the Parliament in accordance with recommendations from a Boundaries Commission from time to time, at intervals determined by or under an Organic Law, being intervals of not more than 10 years.”

The way this Reference comes before the court is covered by Miles J. in his judgment.

Ms. Pert for the Principal Legal Adviser, submits that the court is being asked to consider “... the practical application (and to the necessary extent) of the interpretation” of s. 125 of the Constitution and s. 40 of the Organic Law on National Elections. She says that the court has the jurisdictions not only of purely interpreting these provisions and of ensuring that such provisions are applied properly and correctly, but also of entertaining questions relative to whether decisions made are clear, concise, unclear and ambiguous. This, she submits, is so because of the way s. 19(1) of the Constitution is worded—i.e., the court may give its opinion on a “... question relating to the interpretation or application of any provision of a Constitutional Law”. I quote from her written submissions:

“Section 19 of the Constitution states that the Supreme Court may be asked ‘any question relating to the interpretation or application’ of any provision of a Constitutional Law. These words are in my submission clearly intended to provide access to the Supreme Court in all cases where the meaning or effect of a Constitutional Law is in doubt. Schedule 1.5 of the Constitution requires that all provisions of the Constitution be given their fair and liberal meaning and in my submission the words ‘any question relating to ... interpretation or application’ are intended to cover all aspects of understanding and implementing a Constitutional Law.”

There is no misunderstanding of s. 125 of the Constitution or s. 40 of the Organic Law here. They are quite clear. It is one of understanding and implementing a decision constitutionally made; a decision made following all requirements of the relevant Constitutional Laws.

When one reads the recommendations made by the Boundaries Commission approved by Parliament and refers to the relevant Constitutional provisions one does not see any “interpretation” difficulties or “application” problems.

As far as I am concerned a question has been referred to this Court in the guise of a special reference under the Constitution, s. 19, when in fact there is no Constitutional Law interpretation or application involved. How can determining what particular decision Parliament made be the interpretation or application of a provision of a Constitutional Law? Parliament determined the number of open electorates based on the maps and descriptions before it. If there is doubt to what Parliament decided, it is the body to resolve it and it had the opportunity to do so in September and November sittings this year. Section 19 of the Constitution is a very special provision. It has two aims:

“We envisage advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a constitutional provision or the executive to establish what the law on a particular constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravated and the parties to it take strong and inflexible positions”[dccxci]¹. (Emphasis mine).

The C.P.C. Report makes the purposes of s. 19 very clear—for the Supreme Court “to establish what the law on a particular constitutional point is” and “what the constitutional law is on a particular issue”. The Reference now before the court does not seek to do this.

I hold the Reference incompetent and the application should be struck out.

KAPI J:  The Principal Legal Adviser has referred a question for determination by this Court under s. 19 of the Constitution.

A preliminary question has arisen as to whether or not the question referred involves “any question relating to the interpretation or application of any provision of a constitutional law”. The question referred is as follows:

“are the electoral boundaries for the 1982 elections as depicted in the maps and descriptions attached to the 1977 report of the Boundaries Commission or are they as intended by the 1977 report and depicted in maps to be produced before the Supreme Court.”

In order properly to consider the preliminary issue it is necessary to describe the events which gave rise to the problem within the framework of the constitutional law provisions. The next national elections are due in 1982. For the purposes of this election, the Boundaries Commission prepared a report and made recommendations for re-distribution of the country into electorates. Under s. 125 of the Constitution and s. 40 of the Organic Law on National Elections, the National Parliament is invested with the authority to determine the number of electorates, and their boundaries, in accordance with the recommendations of the Boundaries Commission. The Boundaries Commission’s initial report and recommendations were rejected in the September sittings of the Parliament this year. The Commission prepared a revised report and recommendations under s. 40(4) of the Organic Law on National Elections. The revised report was put to the Parliament on 9th November, 1981, and again rejected by the Parliament. Under s. 40(8) of the Organic Law on National Elections, the rejection of the Commission’s report means that the electorates for the purposes of the 1982 elections shall be the electorates determined by the Parliament on 7th February, 1977.

The 1977 determination by Parliament determined the following things:

(a)      number of provincial seats and their boundaries;

(b)      the number of Open Electorates and their boundaries.

There is no problem regarding the provincial seats and their boundaries. The problem that has arisen, which led to this Reference, is in relation to the Open Electorates. In 1977 the National Parliament determined that there be eighty-nine Open Electorates. There is no problem about this. The Parliament also approved the boundaries of each of these electorates as set out in the maps and the descriptions.

The problem has arisen in relation to the boundaries of these Open Electorates. It will be suggested on behalf of the Principal Legal Adviser on submissions on the merits of the Reference that the maps and descriptions approved by the Parliament in 1977 are inaccurate in that they do not correctly represent the census divisions as was intended in the report of the Boundaries Commission. It was intended that each of the census divisions set out for each Open Electorate in the report would be included in their respective electorates as set out in the maps and descriptions. At the time the report was accepted by the Parliament everyone believed that the maps and descriptions represented the census divisions accurately.

It will be suggested further on behalf of the Principal Legal Adviser that as the maps and descriptions are inaccurate the correct boundaries of these Open Electorates are as shown in the more accurate maps to be handed up to the court. It will be argued that these new maps accurately represent the census divisions referred to in the Boundaries Commission report of 1977.

The Principal Legal Adviser has assumed, in the light of the report and recommendations of the Boundaries Commission in 1977, and in the light of the more accurate maps to be produced that the Parliament has approved two sets of boundaries. He says that the first set of boundaries approved by the Parliament is as set out in the maps and descriptions (which are not accurate). The second is the new boundaries as shown in the new maps and descriptions to be produced to the court later which are based on the census divisions.

On this assumption, the Principal Legal Adviser has referred the question for this Court to determine which of these boundaries were intended by the Parliament.

For the purposes of the preliminary issue, I will proceed on the basis that the Principal Legal Adviser’s assumption is correct in that the Parliament approved two boundaries. In my view this assumption is questionable. I will return to this matter later.

The preliminary issue raises the proper meaning to be given to the words “interpretation” and “application” in s. 19 of the Constitution.

“Interpretation” of a constitutional law may arise in one of two ways under s. 19 of the Constitution. A provision of the constitutional law may be referred to the Supreme Court for the court to explain the effect of, or the meaning of, either a particular word or words or the whole provision or provisions without any application to any particular issue raised by facts found or assumed, or without any application to any statutory provision. Alternatively, “interpretation” of a constitutional law may arise in the application of a provision of the constitutional law provisions to an issue raised by facts found or assumed or to a provision of another statute. The question to ask here is whether the Reference raises any question of “interpretation” of a word or words or provision of a relevant constitutional law. The issue raised by the Reference involves the intention of the Parliament. It is clear from the issue raised by the Reference that it does not involve an “interpretation” of any constitutional law.

The term “application” involves the consideration of a constitutional law provision in relation to an issue raised by facts found or assumed, or a provision of a statute or a proposed statute. An “application” of a constitutional law provision necessarily involves the “interpretation” of the same. Whether or not a question raised in a Reference involves an “application” of a constitutional law under s. 19 of the Constitution depends on whether a constitutional law provision has any relevance to the issue raised in the Reference. Unless a constitutional law provision is brought to bear upon the issue raised in the Reference there can be no “application” of the Constitution. I am of the opinion that an “interpretation” or an “application”, or both, of a constitutional law provision is involved when those constitutional law provisions are brought to bear upon the issue raised in the Reference. This view is reinforced by the C.P.C. Report, paragraph 153, p. 8/16:

“We envisage advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a constitutional provision or the executive to establish what the law on a particular constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravated and the parties to it take strong and inflexible positions. It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.” (Emphasis mine).

Having regard to the issue raised in this Reference, it is dealing with what the Parliament intended. I can find no constitutional law provision which bears on this particular issue. In other words there is no constitutional provision which can resolve the issue raised in the Reference.

I find that the question referred in the Reference does not involve an “interpretation” or “application” of a provision of a constitutional law, and therefore cannot be dealt with under s. 19 of the Constitution.

With respect to the Principal Legal Adviser, the question referred to in the Reference does not really arise upon the proper consideration of the relevant constitutional law provisions and the effect of the resolution of the Parliament in accepting the Boundaries Commission report. He has assumed that the Parliament in 1977 determined two boundaries. He suggests that one determination is as shown in the maps and descriptions attached to the 1977 report and the other boundaries are as intended by the Parliament based on the census divisions. With respect I cannot agree.

Under s. 125 of the Constitution, apart from other things, the Parliament determined the boundaries in accordance with the recommendations of the Commission. What was the recommendation of the Commission on the boundaries of these Open Electorates? The recommendation was “boundaries as sét out in the maps and descriptions forwarded herewith”. When the Parliament accepted the recommendations of the Commission on boundaries they were accepting the boundaries as in the maps and descriptions. I do not agree that the Parliament determined any other boundaries for the Open Electorates. In my view it is not open to anybody to suggest that the Parliament in 1977 intended another boundary based on the census divisions referred to in the report. This cannot have been so in 1977 when at that time the Parliament believed that the census divisions were accurately represented in the maps and the descriptions approved. In my view the census divisions referred to in the report were intended to show one thing and that is the fair distribution of the Open Electorates in accordance with the population quota based on the 1971 census figures. See s. 35(1) of the Organic Law.

In my view the candidates are stuck with the boundaries shown in the maps and the descriptions.

The maps which are now said to be more accurate can only have one effect on the decision by the Parliament in 1977: and it is this, that it is clear now that the Parliament in 1977 was misled by the understanding that the maps and the descriptions accurately represented the census divisions referred to in the report. It seems nobody can be blamed for this as the Commission produced the maps and descriptions on the best available information at the time. Whether or not it may be open to question the validity of a determination of a Parliament based on a mistaken belief such as I have described above is not open to me to comment on. All I can say is that if these accurate maps were available to the Parliament at the time of the resolution, the Parliament would have rejected the recommendations as the Parliament cannot amend the maps and descriptions contained in the recommendations of the Commission. See s. 125(3) of the Constitution. In my view the question referred is based on a wrong assumption.

It seems to me the only question involving the application of constitutional law that remains to be considered now is whether the maps and the descriptions in the 1977 report contravene the provisions of s. 35(2) of the Organic Law.

MILES J:  The Principal Legal Adviser to the National Executive has made application to the Supreme Court pursuant to the Constitution, s. 19, for an opinion on the following question:

“Are the electoral boundaries for the 1982 elections as depicted in the maps and descriptions attached to the 1977 Report of the Boundaries Commission or are they as intended by the 1977 Report and depicted in maps to be produced before the Supreme Court?

The relevant provisions of the constitutional law are s. 125(1) of the Constitution and s. 40 of the Organic Law on National Elections.”

The provisions of the Constitution, s. 125(1), are as follows:

“125.   ELECTORATES

(1)      The number of open electorates and of provincial electorates and their boundaries shall be determined by the Parliament in accordance with recommendations from a Boundaries Commission from time to time, at intervals determined by or under an Organic Law, being intervals of not more than 10 years.”

The provisions of s. 40(1) of the Organic Law on National Elections are as follows:

“40.    DETERMINATION OF NEW ELECTORATES

(1)      A resolution of the Parliament accepting the recommendations of the Boundaries Commission for a proposed redistribution constitutes a determination of the number of open electorates and their boundaries, and those electorates until altered together with the provincial electorates, shall, subject to Subsection (3), be the electorates for the purposes of the election of members to the Parliament.”

Under the Constitution, s. 19(1), subject to sub-s. (4) the Supreme Court shall on application by an authority referred to in sub-s. (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.

The question posed in the application comes before the court in the following way.

In 1977 the Boundaries Commission established under s. 25 of the Organic Law on National Elections, acting pursuant to its constitutional duty, presented to the Parliament a report at the end of which it made certain recommendations for the redistribution of open electorates. These recommendations were as follows:

“The Boundaries Commission:

(a)      formally recommends to the Parliament that the number of provincial electorates be twenty and that their boundaries be the same as those of the provinces and the National Capital District; and

(b)      recommends to the Parliament that the number of open electorates be eighty-nine and their boundaries as set out in the maps and descriptions forwarded herewith.”

Upon receipt and consideration of the Report and recommendations, Parliament on 7th February, 1977, resolved as follows:

“That the Parliament adopts the revised Report of the redistribution of Papua New Guinea into open and provincial electorates as proposed by the Electoral Boundaries Commission.”

The resolution of Parliament was in accordance with the Constitution, s. 125, and s. 40(1) of the Organic Law on National Elections. The maps and descriptions referred to in the resolution were published separately to the Report. They have been put in evidence before us and can be seen to delineate the boundaries of each open electorate with considerable precision.

In the body of the Report from the Boundaries Commission there appears a list in which each and every open electorate recommended is referred to by its proposed name and a number of what might be called “sub-electorates” which go to make up the totality of the open electorate. Each of these “sub-electorates” is constituted by a named census division, that is to say an area of country used for the purpose of taking the census. By grouping a number of contiguous census divisions together and adding up the total population contained therein, the Boundaries Commission was able to determine the population quotas as a necessary step towards drawing the boundaries of each proposed open electorate pursuant to s. 35 of the Organic Law. As an illustration one may take the first of the open electorates appearing in the list which is referred to in the following manner:

Bougainville Province	<
Open Electorate	Census Division	Population
<	Aita	1,521
	Rotokas	4,638
	Eivo	1,732
Central Bougainville	Guawa	3,145
	North Nasioi	3,045
	South Nasioi	18,418
<<	Kongara	1,806
	Komora	1,258
		lass=NormalormalPara>35,563

In the descriptions and maps which accompany the Report, the boundaries of each open electorate are defined by descriptions by metes and bounds and additionally by maps. It is not practical to reproduce these in this judgment. Apparently the verbal descriptions and graphic representations correspond exactly with each other.

We have been informed that since the preparation of the 1977 maps and descriptions it has been discovered that the boundaries of the open electorates, as verbally described and graphically represented, do not accurately represent the boundaries of the open electorates as constituted by the census divisions. In other words, it has been ascertained that some census divisions overlap the boundaries of the open electorates as delineated in the 1977 maps and descriptions. The question arises then as to whether the boundaries of any particular open electorate should be taken to follow those of the census divisions which constitute that open electorate or whether they should be taken to follow the 1977 maps and descriptions. The preliminary point for determination by the court is whether this question, which has been referred to the court for its opinion, is “a question relating to the interpretation or application of any provision of a constitutional law” within the Constitution, s. 19.

Counsel representing the Principal Legal Adviser to the National Executive and counsel representing Parliamentary Counsel have appeared and argued that the question posed does fall within the Constitution, s. 19. No one has appeared to argue the contrary. It has been submitted that the question relates to the interpretation of the word “determined” in the Constitution, s. 125(1), and the words “resolution” and “determination” in s. 40 of the Organic Law. The argument was put that the resolution of Parliament amounts in effect to two determinations, one being a determination that the open electorates should be constituted by the specified census divisions and the other being a determination that the open electorates should be defined by the boundaries set out in the maps and descriptions. As each of these determinations is now found to be inconsistent with the other, so it was submitted, the court should rule as to which one represented the intention of the Parliament. This submission should be rejected. If the court were to give such a ruling, that ruling would not involve any interpretation of what is meant by the words “resolution” or “determination”. The decision would be merely which out of the two determinations is to be accepted as reflecting the intention of the Parliament.

Furthermore, if it were considered that the resolution of Parliament of 7th February, 1977, was but one determination, albeit an ambiguous one, and this Court were asked to rule on its meaning, the question posed would not relate to the interpretation of a constitutional law within the Constitution s. 19. “Constitutional law” is defined in the Constitution, Sch. 1.2., as “this Constitution, a law altering this Constitution or an Organic Law”. A Parliamentary resolution is not a constitutional law and the interpretation of a Parliamentary resolution does not fall within the Constitution, s. 19.

The further and alternative submission was put that the question posed is one relating to the application of a provision of a constitutional law, namely the application of s. 40 of the Organic Law on National Elections. It was submitted that in making its determination Parliament was applying the provisions of the Organic Law and that the question posed arises out of this application. The submission has a superficial appeal. In a loose and general sense a law may be said to be “applied” on any occasion when it is used to cloak with legal authority the carrying out of any act. For instance, a statutory body may be said to be “applying” the provisions of the statute by virtue of which it is constituted every time it does something in discharge of its statutory functions and within the limit of its statutory powers. However in my view there are several factors which lead to the conclusion that the word “application” is not used in such a loose manner in the Constitution, s. 19.

Firstly the recommendation of the Constitutional Planning Committee was that the Supreme Court be given exclusive jurisdiction to give an advisory opinion on “any matter concerning any provision of the Constitution, including its implementation and enforcement” (p. 8/31 par. 82). In the event the jurisdiction conferred by the Constitution, s. 19, is both wider and narrower than that recommended by the Constitutional Planning Committee. It is wider because it extends beyond a consideration of the Constitution alone to a consideration of the provisions of a constitutional law as defined. It is narrower because it excludes constitutional implementation and enforcement from the advisory opinion jurisdiction.

Secondly the nature of the jurisdiction conferred is to some extent reflected in s. 19(2) which provides that an advisory opinion has the same binding effect as any other decision of the Supreme Court. In Supreme Court Reference No. 4 of 1980[dccxcii]² it was indicated that sub-s. (2) meant that an advisory opinion was in effect the equivalent of a declaration or declaratory order. This is in marked contrast to the advisory opinions given by courts in other countries where, generally speaking, an advisory opinion does not have binding effect and where the courts generally have a discretion to decline to give an opinion: see generally S. Crawshaw The High Court of Australia and Advisory Opinions, (1977) 51 A.L.J. 112. The duty of the Supreme Court not to withhold an opinion when one is requested, and the binding nature of the opinion given, are both suggestive of a limited rather than a wide range of subject matter in relation to which the jurisdiction may be exercised.

Thirdly if the word “application” were to have the wide meaning contended for, it would be difficult to see where the limits of the Supreme Court’s function in being required to give advisory opinions would lie. The constitutional bodies and officeholders entitled to apply under the Constitution, s. 19, derive their existence from constitutional laws. The day to day carrying out of their functions involves the implementation and in a sense the “application” of constitutional laws. However, it is in my view not consistent with the responsibility bestowed upon such bodies and officeholders that they should be at liberty to require the Supreme Court to give an opinion on all matters concerning the carrying out of their functions, or in other words, the implementation of the constitutional provisions by which they are established. If this was what was intended, it would amount in effect to what has been described and condemned in the United States as “government by judiciary” (see Crawshaw op. cit. p. 124, note 29) which is something the Constitution of Papua New Guinea seeks in principle to avoid: the Constitution, s. 99. Again it may be of some significance to note that in other countries where courts are given an advisory opinion jurisdiction, it is usually confined to questions of constitutional validity.

Lastly and most importantly perhaps, the word “application” has to be looked at in the context of the Constitution s. 19 as a whole and in particular in the light of its use alongside the word “interpretation”. The interpretation and application of laws are well and easily recognized functions of courts of law and no less of the Supreme Court of Papua New Guinea. A court interprets a statutory provision by ascertaining its meaning: in stating its interpretation the court is doing no more than expressing the terms of the statute in another and perhaps clearer way. The task of a court however is rarely confined to interpreting the law, although where the relief sought does not go beyond a declaratory order, the task may be so confined. More usually a court is required to adjudicate upon an issue by applying the law to the facts ascertained or admitted and coming up with a decision. This task of applying a law includes but goes beyond interpreting or ascertaining the meaning of that law.

In my view this is the sense in which the word “application” is used in the Constitution, s. 19. The Supreme Court is empowered and obliged to give its binding opinion on any question relating to the interpretation of any provisions of a constitutional law without reference to any particular set of circumstances. It is further empowered and obliged to give its opinion on any question relating to the application of any provision of a constitutional law to a particular set of circumstances. By virtue of the Constitution, s. 19(2), the Supreme Court’s opinion on a question of interpretation of a provision of a constitutional law will have a general binding effect. On a question of the application of a provision of a constitutional law, the court’s opinion will have particular binding effect in relation to the facts found or assumed, and also presumably in relation to any similar factual situations which may occur. However the nature of the jurisdiction is such that the constitutional authorities entitled to invoke it do not have to wait until an issue has arisen in the sense of an actual dispute between parties.

Jurisdiction under s. 19 has been exercised on two prior occasions. In Constitutional Reference No. 1 of 1978 (s. 19)[dccxciii]³ the court answered certain questions put to it by the Ombudsman Commission relating to the powers of the Ombudsman Commission. The court was required to give its opinion relating to the interpretation of certain sections of the Constitution and the facts giving rise to the reference were not before the court, nor did the court require to know them: per Prentice C.J. at p. 347. In Constitutional Reference No. 2 of 1978; Re Corrective Institutions Act 1957[dccxciv]⁴ the court was required to decide questions relating to the constitutional validity of the Corrective Institutions Act 1957. In neither of these previous decisions was the court required by the question put to it to consider an application of a constitutional law to particular facts under the Constitution, s. 19 (although in the later case the court went on to exercise further powers under the Constitution, ss. 185 and 22). Sometimes the determination of constitutional validity of a law may involve a consideration of facts and hence the application rather than the mere interpretation of that law.

“Highly inconvenient as it may be, it is true of some legislative powers limited by definition, ... that the validity of the exercise of the power must sometimes depend on facts, facts which somehow must be ascertained by the court responsible for deciding the validity of the law.” (Commonwealth Freighters Pty. Ltd. v. Sneddon per Dixon C.J.[dccxcv]⁵)

The question which has been posed in the present application by the Principal Legal Adviser is a question of the application of the resolution of Parliament of 7th February, 1977, to the facts and circumstances already outlined. The resolution of Parliament is not a constitutional law, the question does not relate to the interpretation or application of the Constitution, s. 19, nor of the Constitution, s. 125, nor of s. 40 of the Organic Law on National Elections, nor of any other constitutional law. The reference is incompetent and the application should be struck out.

Application struck out.

Principal Legal Adviser: C. Maino-Aoae.

Parliamentary Counsel: A. Pala.

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[dccxci]Paragraph 153, p. 8/16 C.P.C. Report.

[dccxcii][1981] P.N.G.L.R. 265.

[dccxciii][1978] P.N.G.L.R. 345.

[dccxciv][1978] P.N.G.L.R. 404.

[dccxcv][1959] HCA 11; (1959) 102 C.L.R. 280 at p. 292.