SCR No 1 of 1992; Re Constitutional Amendment No 15—Elections and Organic Law on National Elections (Amendment No 1) Law 1991; Special Reference by the Ombudsman Commission under s19 of the Constitution

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Amet J, Woods J, Sheehan J, Andrew J
• Judgment Date: 23 March 1992
• Citation: [1992] PNGLR 73
• Court: Supreme Court
• Year: 1992
• Judgement Number: SC425

Supreme Court: Kapi DCJ, Amet J, Woods J, Sheehan J, Andrew J

Judgment Delivered: 23 March 1992

1 Constitutional law—amendment of Constitution—validity of amendment—manner and form requirements

2 Constitutional law—when Supreme Court performs role of tribunal of fact, law or both—Constitution s18—Constitution s19

3 Constitutional law—special rights of citizens—right to vote and stand for elections—regulation thereof—forfeiture of nomination deposit—whether regulation "reasonably justifiable"

4 Constitutional law—Organic Law on National Elections (Amendment No 1) Law 1991—subject to compliance with Constitution

5 Elections—Parliament—validity of constitutional amendment re K1000 fee for candidacy—Constitution s50 (1), Constitution s50 (2), and Constitution s103 (2)

Norah Mairi v Alkan Tololo (No 2) [1976] PNGLR 125

___________________________

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA

AND CONSTITUTIONAL AMENDMENT NO 15 — ELECTIONS

AND IN THE MATTER OF THE

ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT NO 1) LAW 1991

AND IN THE MATTER OF A SPECIAL REFERENCE

BY THE OMBUDSMAN COMMISSION UNDER S 19 OF THE CONSTITUTION

SCR No 1 of 1992; SPECIAL REFERENCE PURSUANT TO CONSTITUTION, S 19

Kapi DCJ Amet Woods Sheehan Andrew JJ

27-28 February 1992

23 March 1992

CONSTITUTIONAL LAW — Constitutional references — Amendment of Constitution — Validity of amendment — Manner and form requirements.

CONSTITUTIONAL LAW — Special rights of citizens — Right to vote and stand for elections — Regulation thereof — Forfeiture of nomination deposit — Whether regulation "reasonably justifiable".

CONSTITUTIONAL REFERENCES — When Supreme Court performs role of tribunal of fact, law or both.

ORGANIC LAW ON NATIONAL ELECTIONS (AMENDMENT NO 1) LAW 1991 — Subject to compliance with Constitution.

PARLIAMENT — Elections — Validity of Constitutional Amendment — Candidate for election required to pay fee of K1,000 — Constitution s 50 (1), (2) and s 103 (2).

Facts

The Ombudsman Commission made a special reference to the Supreme Court under s.19 of the Constitution for an opinion on the validity of an amendment to the Constitution by the Constitutional Amendment Law No 15 — Elections and an amendment to the Organic Law on National Elections by the Organic Law on National Elections (Amendment No 1) Law, 1991.

The effect of the Constitutional amendment was to increase a candidate's deposit for nomination for national elections from K100 to K1,000, and of the amendment to the Organic Law, to substitute provisions which provided for forfeiture of the deposit if the candidate was unsuccessful for the existing provisions which provided for forfeiture of the deposit only if his total number of votes was less than 10 percent of the total votes polled by the successful candidate.

Issues

1. What is the validity of amending provisions which increased the nomination fees from K100 to K1,000?

2. The validity of the amendment of the Organic Law which stipulated the increased nomination fee and provides for its forfeiture if the candidate is unsuccessful.

Held

1. Section 103 of the Constitution contain several express limitations upon the rights in section 50 to stand for public office. These are inter alia deposit of a fee of K1,000 introduced by Constitutional amendment to s.103 the validity of which is guaranteed by the fact that s.50 (the right to stand for public office) is subject to express limitations imposed by the Constitution.

2. The amendment to the Organic law gives effect to section 103 of the Constitution as amended which requires an increased nomination fee and therefore it is not inconsistent with the Constitution.

3. In so far however, as that amendment provides for the forfeiture of the deposit of an unsuccessful candidate it is the amendment of a provision which regulates the constitutional right to stand for public office and therefore must be reasonably justifiable for that purpose in a democratic society that has proper regards for the rights and dignity of mankind.

The sum of K1,000 deposit is a very high one in the circumstances of Papua New Guinea and to provide for its forfeiture if the candidate is unsuccessful is to jeopardise the underlying principle of free and equal participation which permeates the Constitution.

Counsel

D Cannings for Ombdsman Commission

D Garo for Principal Legal Advisor and Electoral Commissioner

PR Payne for the National Parliament

Cases cited

Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280

Mairi v Tololo & Ors [1976] PNGLR 125

Okuk v Nilkare [1983] PNGLR 28

SC Reference No 2 of 1982 [1982] PNGLR 214

KAPI DCJ: I have had the opportunity of reading the draft judgement of the majority and I agree with the reasons and answers given to all the questions, However, I wish to add a few comments of my own.

Certain materials have been tendered by affidavit and the court has been urged to make findings of fact to form the circumstances to which certain constitutional laws have to be interpreted and applied. Counsel for the Ombudsman Commission and the National Parliament relied on the leading judgement of Kearney DCJ in SC Reference No 2 of 1982 (1982) PNGLR 214 which sets out the proper approach to findings of facts. I agreed with Kearney DCJ on principles relating to findings of facts in that case. Strictly speaking, this part of the judgement is obiter and the true position is as stated by the Chief Justice. In the 1982 Reference, three questions were referred:

1. Is the Organic Law on National Election

(Amendment) Act of 1981 invalid, in that it was not made in the manner and form required by s 14 (1), (2), (4) and (5) of the Constitution?

2. Does the Organic Law on National Election

(Amendment) Act of 1981, by requiring a candidate to validate his (her) nomination with a K1000 deposit, impose an unreasonable restriction upon the right of ordinary citizens t be elected to Parliament, which is contrary to and inconsistent with s 50 (1) and (2) of the Constitution?

3. Does the Organic Law on National Election

(Amendment) Act of 1981 discriminate against citizens on the basis of wealth and thus deny all citizens the same equal right to stand for election to Parliament, contrary to and inconsistent with s 55 of the Constitution?

The Court answered Question 1 in the affirmative. It was not necessary in the light of the answer to Question 1 to deal with the other two questions. The Chief Justice made the following observations at p 221:

"It seems to me that the question of who bears the onus of proof does not arise in the present reference. I say this for the simple reason that, in relation to factual materials relevant for purposes of Questions 2 and 3, the referring authority has borne the burden "voluntarily" so to speak and rightly so. No adversary or opponent was available to do so anyway. Both the learned Principal Legal Adviser in person and the Parliamentary Counsel, through Mr. Sam, merely appeared to assist the Court.

It might be that in relation to the issue of whether the K1000 nomination fee was reasonably justifiable, the Constitution s 38 applies. However, as there was no party relying on s 38 (1) for the constitutional validity of the Act in question and as no submissions were made, the court cannot be in a position to rule on the issue one way or the other."

I draw attention to this matter because the jurisdiction given to this Court under s 18 and s 19 of the Constitution is of a special character. When exercising this special jurisdiction, it is called upon to express an opinion on issues relating to interpretation and application of a constitutional law and not adjudication of facts. The Supreme Court has already decided that under a s 18 reference, a Constitutional Law issue arises when findings of facts are determined by a Tribunal which has jurisdiction to determine the facts. If a Section 18 reference is made without determination of facts, this court will send the mmatter back to the tribunal of fact to make those findings. SCR 5 of 1982: Re Petition of Hugo Bergheuser (1982) PNGLR 379, SCR 3 of 1982 (1982) PNGLR 405. A Section 19 reference provides for questions to be referred on hypothetical facts. SCR 3 of 1982 (1982) PNGLR 405.

However, this Court would be a tribunal of fact as well as tribunal of law if the proceedings are brought under s 57 of Constitution. The Supreme Court has concurrent jurisdiction with the National Court for the protection and enforcement of guaranteed rights and freedoms. This course was not adopted in this case.

The end result of all this reasoning is that this Court...