Constitutional Reference No 1 of 1978; Re Leo Morgan

• Jurisdiction: Papua New Guinea
• Judge: Prentice CJ, Saldanha J, Andrew J
• Judgment Date: 30 November 1976
• Citation: [1978] PNGLR 460
• Court: Supreme Court
• Year: 1978
• Judgement Number: SC140

Full Title Constitutional Reference No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR 460

Supreme Court: Prentice CJ, Saldanha J, Andrew J

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CONSTITUTIONAL REFERENCE NO. 1 OF 1978

IN THE MATTER OF A REFERENCE BY ANDREW BRAY CAMERON WILSON A JUSTICE OF THE NATIONAL COURT PURSUANT TO S. 18 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND IN THE MATTER OF THE TRIBUNAL ESTABLISHED UNDER S. 27 OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND IN THE MATTER OF LEO ROBERT MORGAN

Waigani

Prentice CJ Saldanha Andrew JJ

31 October 1978

30 November 1978

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Leadership Code — "Heads of Departments" — Applicability to acting temporary and substantive appointees — Constitution s. 26 (1), s. 27Infra p. 463.1.

STATE SERVICES — Public service — Leadership Code — "Heads of Departments" — Applicability to acting temporary and substantive appointees — Constitution s. 26 (1), s. 27Infra p. 463.2.

A person appointed by virtue of the powers conferred by s. 193 (3) of the Constitution of the Independent State of Papua New Guinea and s. 132 of the Public Service (Interim Arrangements) Act 1973, and all other enabling powers, to fill a vacancy in the office of Secretary, Department of Works and Supply, for a period of six (6) months is a head of Department of the National Public Service within the meaning of s. 26 (1) of the Constitution, to whom the provisions of Div. 2 of the Constitution (Leadership Code) apply.

The use of the words "heads of Departments" in s. 26 (1) (f) of the Constitution is to be read as encompassing the de facto head, the man at the pinnacle or apex of the Department, and it makes no difference whether the head of a Government Department holds an acting, temporary or substantive appointment: they are all persons to whom the Leadership Code applies.

Reference

This was a reference to the Supreme Court pursuant to s. 18 of the Constitution, which provides that where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the Court or Tribunal, shall, ... refer the matter to the Supreme Court. The question was referred by a Judge of the National Court sitting as a Tribunal appointed under s. 27 (7) (e) of the Organic Law on the Duties and Responsibilities of Leadership. The question referred appears at the beginning of the reasons for judgment hereunder.

Counsel

K. B. Egan, to argue the affirmative case.

B. D. Brunton, and J Gawi, to argue the negative case.

Cur. adv. vult.

30 November 1978

PRENTICE CJ SALDANHA ANDREW JJ: Wilson J, a judge of the National Court, has referred to this court pursuant to s. 18 (2) of the Constitution, the following two questions:

"1. Whether a person, appointed by virtue of the powers conferred by s. 193 (3) of the Constitution and s. 132 of the Public Service (Interim Arrangements) Act 1973 and all other enabling powers to fill a vacancy in the office of Secretary, Department of Works and Supply, for a period of six (6) months is a head of Department of the National Public Service within the meaning of s. 26 (1) of the Constitution to whom the provisions of Div. 2 — Leadership Code apply and is in relation.

2. Whether the effect of s. 26 (4) of the Constitution which provides:

"In the event of a doubt as to whether a person is a person to whom this Division applies, the decision of the Ombudsman Commission is final."

precludes the National Court from issuing an order nisi for a writ of certiorari to remove into the Supreme Court a certain determination and recommendation made by a Tribunal established under s. 27 (7) (e) of the Organic Law on the Duties and Responsibilities of Leadership."

The reference came to be made in the following...