Re Electoral Boundaries [1981] PNGLR 518

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kapi J, Miles J
• Judgment Date: 10 December 1981
• Citation: [1981] PNGLR 518
• Docket Number: Supreme Court Reference No 2 of 1981
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC217

Full Title: Supreme Court Reference No 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518

Supreme Court: Kidu CJ, Kapi J, Miles J

Judgment Delivered: 10 December 1981

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" Paragraph 153, p. 8/16 C.P.C. Report. 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...