In the Matter of Section 19 of the Constitution of the Independent State of Papua New Guinea; Reference by Fly River Provincial Executive (2007) SC917

• Jurisdiction: Papua New Guinea
• Judge: Salika J, Gavara–NanuJ, Cannings J
• Judgment Date: 31 August 2007
• Citation: (2007) SC917
• Docket Number: SC REF NO 3 0F 2006
• Court: Supreme Court
• Year: 2007
• Judgement Number: SC917

Full Title: 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 (2007) SC917

Supreme Court: Salika J, Gavara-Nanu J, Cannings J

Judgment Delivered: 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...