In the Matter of Section 18(1) of the Constitution; In the Matter of the Honourable Bill Skate MP (2001) SC680

• Jurisdiction: Papua New Guinea
• Judge: Hinchliffe J, Sheehan J, Injia J, Sawong J:
• Judgment Date: 20 February 2002
• Citation: [2002] PNGLR 678
• Docket Number: Supreme Court Reference No 12 of 2001
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC680

Full Title: Supreme Court Reference No 12 of 2001; In the Matter of Section 18(1) of the Constitution; In the Matter of the Honourable Bill Skate MP (2001) SC680

Supreme Court: Amet CJ, Hinchliffe J, Sheehan J, Injia J, Sawong J

SC680

Papua New Guinea

[In the Supreme Court of Justice]

SC REFERENCE NO. 12 OF 2001

In the Matter of Section 18(1) of the Constitution

In the Matter of the Hon Bill Skate MP

Waigani : Amet CJ, Hinchliffe, Sheehan, Injia & Sawong JJ

2002 : 4, 18 January, 13 & 20 February

Constitutional Law – Validity of National Capital District Commission Act 2001 – Whether Act inconsistent with Organic Law on Provincial Government and Local-level Government: Constitution, Section 4(4); Organic Law on Provincial Government and Local-Level Government, Preamble and s.4.

G Sheppard, for Referror.

G M Egan with Dr J Nonggor, for Respondent/State.

20 February 2002

AMET CJ: This is a Constitution Section 18(1) reference by the Honourable Bill Skate (the Referror), Member of the National Parliament for the National Capital District (NCD) Electorate, and a Member of the National Capital District Commission (NCDC), seeking interpretation as to whether the National Capital District Commission Act 2001 (the Act) passed by the National Parliament on 11 December 2001, is constitutional.

The Historical Circumstances

The NCD was administered by the NCD Act 1990 (the Principal Act). In 1995 the National Constitution was amended to add Part VIA, bringing into existence the Provincial Government and Local – Level Government System. The Organic Law was thus enacted to give effect to it. It did not apply to the NCD immediately and Parliament simultaneously enacted amendments to the Principal Act incorporating similar provisions to the Organic Law for the representation of the Members of the National Parliament on the NCDC, in the same way as Members of Parliament in other provinces who were enabled to be members of their provincial governments under the Organic Law.

The NCD thus was governed since 1995, in the same way as other provinces, by the member for the NCD automatically being entitled to be Governor ex-officio, and in the event of his vacating the office of Governor then another member of the National Parliament representing a constituency of the NCD, was entitled to be elected Governor.

Parliament in 2001 attempted to amend the Principal Act, to abolish the representation of the NCD Members of Parliament on the NCDC. This was attempted by NCDC Act (amendment No 1) and NCDC Act (amendment No 2). Both of these were invalidated by this Court as being unconstitutional, principally for not complying with the requirements of s. 50(2) of the Constitution.

The Act, the subject of this reference is the direct result of the striking down of the attempts to amend the Principal Act. It has now totally repealed the Principal Act. It has thus removed the provisions for the representation of the Members of National Parliament for NCD on the NCDC as full members, with the corresponding rights and duties that Members of National Parliament for other provinces have under the Organic Law. The Members of National Parliament for NCD now only hold office as ex-officio members of the NCDC.

The Member of Parliament for NCD is now not qualified to be Governor ex-officio, nor is another Member of Parliament for NCD eligible to be elected Governor in the event that the Member for NCD vacates the office of Governor.

The Referror has contended that the Act is unconstitutional on two grounds:

(i) it is inconsistent with the Organic Law on Provincial Governments and Local Level Governments (the Organic Law); and

(i) it is inconsistent with Sections 55 and 39 of the Constitution, in that it discriminates against the citizens of the National Capital District in relation to the form of government they are entitled to have, and therefore “it is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind,” having regard to the particular circumstances in which the Act was enacted by Parliament to change the form of government for the citizens of the National Capital District.

The Referror’s Submission

The Referror submitted that whilst s. 4(4) of the Constitution provided that ‘an Organic Law or an Act of Parliament shall make provision in respect of the government of the National Capital District’, the existing Organic Law, per s. 4(4) envisaged that it shall apply also to the NCD, and therefore any Act of Parliament which purports to make provision for the Government of the NCD inconsistent with it would be unconstitutional. It was also argued in support of this proposition that s. 4(5) of the Constitution conferred upon the NCD the status of a province under the scheme of provincial governments created by Section 187A of the Constitution, and therefore any form of government which is inconsistent with provincial government under the Organic Law would be unconstitutional. Alternatively, the Referror has submitted that the Act is inconsistent with s. 55 of the Constitution, because it discriminates against the citizens of the NCD in the system of political government they shall have as opposed to other citizens in the rest of the country, who are government by the system of provincial government established under the Organic Law.

Furthermore, it was argued that to so change the system of government for the people of the NCD, by the Act, at the time that the legislature did, is ‘not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind’ and is therefore contrary to s. 39 of the Constitution.

The State’s Submissions

The State’s response was that Constitution s. 4(4) sufficiently disposes of the Reference. That is that because the Constitution permits for the government of the NCD to be provided for by either, an Organic Law or an Act, Parliament had resolved that it shall be by an Act. Although the Organic Law was previously passed by Parliament, it stipulated in the Preamble that it shall come into operation upon notice being published in the National Gazette, by the Head of State, acting with and in accordance with the advice of the Minister. It was submitted that the Organic Law does not yet apply to the NCD because no such notice has yet been given and so the Act is valid. The Reference must therefore fail.

In respect to the issue whether the Act is inconsistent with s. 55 of the Constitution by creating inequality between citizens of the NCD and citizens of other provinces, the State submitted that because of the demographic circumstances of the NCD, it was justifiable under s. 39, to so vary the manner in which the citizens of the NCD may be governed, as distinct from how citizens of other provinces may be governed. It was submitted that the Act was therefore reasonably justifiable in a democratic society to change the form of government for the NCD at this time.

Judgement

Is the Act inconsistent with the Organic Law?

Section 4 of the Constitution establishes the NCD and s. 5 provides for the declaration of provinces.

Section 4-National Capital District.

(1) There shall be a National Capital District.

(2) The Seat of Government shall be in the National Capital District.

(3) The boundaries of the National Capital District shall be as defined by an Organic Law.

(4) An Organic Law or an Act of the Parliament shall make provision in respect of the government of the National Capital District.

(5) In calculating the number of provincial electorates in accordance with Section 125 (electorates), the National Capital District shall be taken into account as if it were a province.

Section 5- Provinces.

(1) An Organic Law may declare, or make provision in respect of the declaration of, part of the country as provinces.

In my opinion, it was clearly the intention of Parliament in 1995 that the Organic Law shall apply to the NCD, conditional only upon notice being given in the National Gazette by the Head of State, acting with the advice of the Minister. That notice has not been given since 1995, and consequently the Organic Law does not apply to the NCD. I affirmed this fact in SCR No. 4 of 2001 (supra).

Notwithstanding this, I am of the opinion that the Act is nevertheless inconsistent with the intent and spirit of the constitution as reflected in the National Goals and Directive Principles and Part VIA of the Constitution, and the Organic Law on decentralized form of lower level political government. I belief it is, for the following reasons.

The Organic Law, in its Preamble declared that it was to implement Part VIA (Provincial Governments and Local-level Governments) of the Constitution by making provision for and in respect of a system of Provincial Governments and Local-level Governments for the provinces, pursuant to the Second National Goal (Equality and Participation) of the National Goals and Directive Principles of the Constitution.

Section 4(5) of the Constitution also equated the NCD with a province, for the calculation of the number of provincial electorates for representation in the National Parliament and consequential government structures.

In my opinion Parliament gave meaning to this general spirit of the constitution for the general framework of lower level government when, whilst the Organic Law did not yet apply to the NCD, it made amendments to the Principal NCD Act...