Re Petition of Michael Thomas Somare [1982] PNGLR 65; (the Vanuatu case)

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Kapi J, Miles J
• Judgment Date: 01 March 1982
• Citation: [1982] PNGLR 65
• Docket Number: Supreme Court Reference No 4 of 1980 (No 2)
• Court: Supreme Court
• Year: 1982
• Judgement Number: SC220

Full Title: Supreme Court Reference No 4 of 1980 (No 2); Re Petition of Michael Thomas Somare [1982] PNGLR 65; (the Vanuatu case)

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Kapi J, Miles J

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 4 OF 1980 (NO. 2) IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA

AND IN THE MATTER OF A PETITION BY THE RIGHT HONOURABLE MICHAEL THOMAS SOMARE, UNDER S. 18 (1) OF THE CONSTITUTION.

Waigani

Kidu CJ Kearney DCJ Greville Smith Kapi Miles JJ

29-30 September 1981

1 October 1981

1 March 1982

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Parliamentary resolutions — Validity of — Act of Parliament — Validity of — Defence forces — Committal of troops overseas — "International obligation" — Constitution, ss. 202, 205, 206 (1) — Defence Force (Presence Abroad) Act 1980.

DEFENCE — Defence forces — Committal of troops overseas — Parliamentary resolution — Validity of — Validity of Act — "International obligation" — Constitution, ss. 202, 205, 206 (1) — Defence Force (Presence Abroad) Act 1980.

In proceedings by way of petition the petitioner ultimately, in effect, sought the following rulings in relation to a resolution by the National Parliament on 6th August, 1980, made under s. 205 (2) (b) of the Constitution, authorizing and approving the committal of troops forthwith to Vanuatu for peace-keeping purposes:

(a) That s. 205 (2) of the Constitution merely declares the procedure to be followed if and when the National Executive Council finds it necessary to commit troops abroad;

(b) That s. 202 of the Constitution exhaustively specifies the functions of the defence force, and leaves no room for the committal of troops to execute functions other than those so specified;

(c) That the term "international obligations" in s. 202 (b) of the Constitution means international obligations recognized by international law;

and accordingly

(d) That, because no relevant international obligation existed as required by s. 202 (b) of the Constitution the authorization and approval by the National Parliament on 6th August, 1980, for the committal of troops to Vanuatu was unconstitutional, null and void.

The petitioner ultimately in effect also sought the following rulings in relation to the Defence Force (Presence Abroad) Act 1980:

(e) That the Act envisaged by s. 206 (1) of the Constitution should outline and establish the legal basis of the matters which should be negotiated into an agreement between Papua New Guinea and any other country; and as the Defence Force (Presence Abroad) Act 1980 fails to do so, it is unconstitutional, null and void;

(f) That s. 1 of the Defence Force (Presence Abroad) Act 1980 gives the National Executive Council authority to commit troops outside the country for purposes other than those specified in s. 202 of the Constitution and, in doing so, establishes functions of the defence force additional to those exhaustively specified in s. 202 of the Constitution and is therefore unconstitutional, null and void.

Held

(1) (Per Miles J.; Kearney Dep. C.J. and Greville Smith J. agreeing.) The petitioner as moving party bore the onus of establishing his entitlement to the relief sought; this entailed on the facts, his proving that there was no international obligation under s. 202 of the Constitution to support the resolution or the Act.

Meaning of "international obligation" in s. 202 (b) of the Constitution discussed by Greville Smith J., Kapi J., and Miles J.

(2) As to the resolution of the National Parliament.

(Kidu C.J. and Kapi J. dissenting): The petitioner had not established that at the relevant time there was no international obligation on Papua New Guinea of the type envisaged by s. 202 of the Constitution and relief should be refused.

(3) (Per Miles J.; Kidu C.J.; Kearney Dep. C.J.; and Greville Smith J., agreeing); Parliament cannot assign to the defence force a function outside its Constitutional functions, which are exhaustively specified in s. 202 of the Constitution.

(4) (Per Miles J.; Kidu C.J. and Greville Smith J. agreeing); Section 205 of the Constitution lays down mandatory procedures to be followed in certain instances when the defence force is to engage in certain activities in the course of carrying out one or more of its functions under s. 202.

(5) (Per Miles J.; Kidu C.J. agreeing); The activities specified in s. 205 of the Constitution may be engaged in to carry out the functions specified in s. 202 but cannot enlarge those functions.

(6) As to the validity of the Act.

(Per Miles J.; Kapi J. agreeing); The Defence Force (Presence Abroad) Act 1980 is valid insofar as the proposal in s. 1 of the Act is for the purpose of carrying out one or more of the functions in s. 202 of the Constitution.

Cases Cited

Adams v. Adams [1970] 3 W.L.R. 934.

A.-G. (N.S.W.) v. Brewery Employees Union of N.S.W. (1908) 6 C.L.R. 469.

Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1.

Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.

Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853.

Eastern Greenland, Legal Status of (1933) P.C.I.J. Series A/B, No. 53. Referred to in D.P. O'Connell, International Law (2nd ed., London, 1970) vol. 1, p. 202.

Raphael Warakau v. The State (Unreported Supreme Court judgment SC 184, dated 3rd November, 1980).

Supreme Court Reference No. 4 of 1980; Re petition of Michael Thomas Somare [1981] P.N.G.L.R. 265.

Taumaku Morea v. Central Provincial Government [1978] P.N.G.L.R. 415.

Petition

This was a petition seeking declarations as to the validity of a resolution of the National Parliament committing defence force troops to Vanuatu for peace-keeping purposes and as to the validity of the Defence Force (Presence Abroad) Act 1980.

For earlier proceedings establishing the locus standi of the petitioner see Supreme Court Reference No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265.

Counsel

P. D. Donigi, for the petitioner (arguing the affirmative case).

C. Maino-Aoae and R. Gunson, for the Intervener (Principal Legal Adviser) by leave (arguing the negative case).

1 March 1982

KIDU CJ: I have read the judgment of Miles J. and I agree with everything his Honour says including the conclusion that no international obligation is shown to have existed on 6th August, 1980, by the material before the court. This material is contained in the Prime Minister's affidavit which reads, inter alia, as follows:

"2. that by letter dated the 17th day of July 1980 from the Honourable Fr. w. hadye lini, Chief Minister for the then condominium of the New Hebrides the Government of the New Hebrides requested the Papua New Guinea Government to provide the Government of the New Hebrides with military and police assistance as from the day of independence if necessary to maintain law and order.

3. that on the 25th day of July 1980 I caused a telex to be sent to the Honourable Fr. w. hadye lini acknowledging receipt of the letter referred to in paragraph 2 above and expressing to the Honourable Chief Minister my regret at the sudden nature of his request but advising that it was necessary for my Government to make proper arrangements in accordance with our Constitution and laws before providing him with the assistance requested.

4. that on the 25th day of July 1980 following my telex referred to in paragraph 3 above I caused a letter to be sent to the Honourable Fr. w. hadye lini confirming my telex aforementioned and I therein assured the Honourable Chief Minister that my Government was treating his request positively and that the National Executive Council had agreed to advise the Head of State to recall Parliament on the 5th day of August 1980. I also advised the Honourable Chief Minister that it was essential for his Government and mine to speed up the finalization of a formal agreement on the use of our Defence Force personnel in order to define any legal or administrative matters that could arise during the proposed operation." (Emphasis mine.)

The Prime Minister's letter of 25th July, 1980, contains only an assurance that the Papua New Guinea Government was treating the request positively.

It appears from the affidavit that the National Executive Council had met to discuss the request. The Prime Minister made the assurance thereafter. However, it was made clear to the Prime Minister of Vanuatu that it was essential that an agreement be finalized. This did not eventuate.

The Principal Legal Adviser relied on the exchange of letters in submitting that an international obligation existed at the relevant time. In his written submission he stated:

"I submit therefore that the letters exchanged by the Heads of the two Governments and the subsequent approval of Parliament ... did create an 'obligation' on the part of Papua New Guinea to assist."

Counsel for the petitioner submitted the contrary.

If there were any other documents which might have assisted the court in deciding the question of existence or non-existence of an international obligation on the part of Papua New Guinea to...