New Ireland Provincial Constitution [1984] PNGLR 81; IN THE MATTER OF A SPECIAL REFERENCE UNDER S19 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND IN THE MATTER OF THE NEW IRELAND PROVINCIAL CONSTITUTION

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi DCJ and McDermott J
• Judgment Date: 27 April 1984
• Citation: [1984] PNGLR 81
• Docket Number: Supreme Court Reference No 2 of 1984
• Court: Supreme Court
• Year: 1984
• Judgement Number: SC268

Full Title: Supreme Court Reference No 2 of 1984; New Ireland Provincial Constitution [1984] PNGLR 81; IN THE MATTER OF A SPECIAL REFERENCE UNDER S19 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA AND IN THE MATTER OF THE NEW IRELAND PROVINCIAL CONSTITUTION

Supreme Court: Kidu CJ, Kapi DCJ and McDermott J

Judgment Delivered: 27 April 1984

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

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

AND IN THE MATTER OF THE NEW IRELAND PROVINCIAL CONSTITUTION

Waigani

Kidu CJ Kapi DCJ McDermott J

30 March 1984

27 April 1984

PARLIAMENT — Members — Declaration of financial interests — Failure to declare — Prohibition on standing for election ever again — Prohibition contrary to National Constitution and invalid — New Ireland Provincial Constitution, s. 18 (1) (h) — Constitution, s. 50 (2).

CONSTITUTIONAL LAW — Validity of Provincial Constitution — Prohibition on standing for provincial elections for breach of Provincial Constitution — Prohibition contrary to National Constitution — New Ireland Provincial Constitution, s. 18 (1) (h) — Constitution, s. 50 (2).

Section 18 (1) (h) of the New Ireland Provincial Constitution provides that "Nobody can become, or remain either an elected or appointed member of the Assembly if ... he fails, within 60 days of being required to do so, to make the disclosures required by s. 19 (a),...".

On a reference under s. 19 of the Constitution as to the validity of s. 18 (1) (h):

Held

(1) A law relating to the exercise of rights to vote and stand for public office may, pursuant to s. 50 (2) of the Constitution regulate the rights but may not prohibit them.

(2) Section 18 (1) (h) of the New Ireland Provincial Constitution is unconstitutional in that it prohibits those who breach s. 19 (a) from ever nominating to stand for New Ireland Provincial Elections.

Cases Cited

S.C.R. No. 2 of 1981; Re s. 19 of the Constitution [1981] P.N.G.L.R. 518.

S.C.R. No. 2 of 1982; Re Organic Law on National Elections (Amendment) Act 1981 [1982] P.N.G.L.R. 214.

Reference

This was a reference under s. 19 of the Constitution, by the New Ireland Provincial Executive, of four questions (see 82 hereunder) relating to the validity of certain sections of the New Ireland Provincial Constitution.

Counsel

B. Narokobi, to argue the affirmative case.

A. J. Tadabe, to argue the negative case.

C. Bourke, for certain members of the Provincial Assembly.

Cur. adv. vult.

27 April 1984

KIDU CJ: The New Ireland Provincial Executive referred the following questions for an opinion by this Court pursuant to s. 19 of the National Constitution:

" (i) Are ss 18 (1) (h), 20 (4) (f), 20 (6) and 20 (7) of the New Ireland Provincial Constitution invalid and ineffective as against the National Constitution and the Organic Law on Duties and Responsibilities of Leadership? The National Constitutional provisions are — 28, 37, 38, 41, 42, 49, 50, 59, 62, 99, 100, 103, 104, 139, 155, 158 and 159, Constitutional Amendment No. 1 and the Organic Law on Provincial Government.

(ii) Does the seat of a sitting member of the New Ireland Provincial Assembly become automatically vacant if for whatever reason that member does not or fails, within 60 days of being required to do so, to make disclosure of his assets, sources of income and financial responsibilities and liabilities on his becoming a member, and on every anniversary of that date?

(iii) Does the seat of a sitting member of the New Ireland Provincial Assembly become automatically vacant where:

(a) that member makes his disclosure within sixty (60) days of being required to do so, of his assets, sources of income and financial responsibilities,

(b) and either lodged within the sixty (60) days period but not received by the speaker in time, or received after the sixty (60) day period?

(iv) If the Honourable Court's opinion is:

(i) No! and

(ii) Yes!

(iii) (a) and (b) Yes! does it follow that such members shall not be eligible again to become or remain either as elected or appointed members of the Provincial Assembly?"

BACKGROUND OF THE REFERENCE

The writ for the second provincial election, for New Ireland Province was returned on 28 December 1982. Under s. 20 (1) a member takes his or her seat on the following his or he "on the day following the day fixed for the return of the writ for the election in the constituency for which he was elected". If he or she is an appointed member he or she takes his or her seat appointment by the Provincial Assembly.

Section 19 (1) of the New Ireland Provincial Constitution (the "Provincial Constitution") provides:

(ii) A Member of the Assembly must:

(a) disclose his assets, sources of income and financial responsibilities and liabilities on his becoming a member and on every anniversary of that date, ..."

All current members of the Assembly took their seats on 29 December, 1982. Within sixty days after that they all complied with s. 19 of the Provincial Constitution.

Certain members failed to disclose their assets and liabilities as required by s. 19 (1) on the anniversary after they took their seats or within sixty days thereafter. Under s. 18 (1) (h) they lose their seats in the Assembly.

If this is so, s. 20 (4) of the New Ireland Provincial Constitution declared their seats vacant and the speaker of the Assembly (as required by s. 20 (b) ) had to inform members of the Assembly of these vacancies. The speaker took no such action. He awaits the decision of this Court.

PRELIMINARY MATTERS

Miss Bourke, lawyer for three members of the Provincial Assembly, submitted that Questions (ii), (iii) and (iv) are not within the ambit of s. 19 (1) of the National Constitution as they do not involve "... 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." Neither Mr Narakobi nor Mr Tadabe argued this point.

The New Ireland Provincial Constitution is a law made under the Organic Law on Provincial Government. It is not declared to be a Constitutional Law by the National Constitution. "Constitutional Law" is defined by section sch. 1.2 (1) of the National Constitution as meaning the National Constitution and any law altering the Constitution and an Organic Law. An Organic Law is described by s. 12 (1) of the National Constitution thus:

(1) For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is:

(a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by this Constitution; and

(b) not inconsistent with this Constitution; and

(c) expressed to be an Organic Law."

Part VIa (ss 187A to 187J) of the National Constitution provides for the establishment of a system of Provincial Government and enables the National Parliament to do this by an Organic Law. This Organic Law is the Organic Law on Provincial Government. It is this Organic Law which says that a Provincial Constitution "... takes effect for the purposes of any law of Papua New Guinea as if it were an Organic Law ..." (See s. 13 of the Organic Law). Neither Pt. VIA nor s. 12 of the National Constitution seems to sanction this provision. However, as the matter has not been fully argued, I am not prepared to make a definite ruling one way or the other.

QUESTION (I)

The answer to this question depends on the constitutional validity of s. 18 (1) of the New Ireland Provincial Constitution (hereinafter referred to as "the Provincial Constitution").

It is my opinion that ss 20 (4) (f), 20 (6) and 20 (7) of the Provincial Constitution do not contravene any provision of the Organic Law on Provincial Government (hereinafter referred to as "the Organic Law") nor any provision of the National Constitution. These provisions in effect constitute part of the Leadership Code for the New Ireland Provincial Assembly Members (except the Premier who is covered by the National Leadership Code (see s. 26 (1) (d) of the National Constitution). There is no prohibition in the National Constitution or the Organic Law that a Provincial Constitution or law may not make provisions such as ss 19 (1) (h), 20 (4), 20 (6) and 20 (7) of the New Ireland Provincial Constitution. I cannot see how ss 28, 37, 38, 41, 42, 49, 50, 59, 62, 99, 100, 103, 104, 139, 155, 158 and 159 of the National Constitution vitiate ss 19 (1) (h), 20 (4) (h), 20 (6) and 20 (7) of the New Ireland Provincial Constitution. But further consideration of these provisions is not necessary because of what I say from hereon.

Section 18 (1) of the New Ireland Provincial Constitution provides, inter alia, as follows:

" (i) Nobody can become, or remain either an elected or appointed Member of the Assembly if ...

(h) he fails, within 60 days of being required to do so, to make the disclosures required by...