SCR No 2 of 1995; Reference by Western Highlands Provincial Executive

• Jurisdiction: Papua New Guinea
• Judge: Sawong J:
• Judgment Date: 20 September 1995
• Citation: (1995) SC486
• Court: Supreme Court
• Year: 1995
• Judgement Number: SC486

Supreme Court: Amet CJ, Kapi DCJ, Los J, Brown J, Sawong J

Judgment Delivered: 20 September 1995

SC 486

PAPUA NEW GUINEA

[In the Supreme Court of Justice at Waigani]

] SCR NO. 2 OF 1995

Reference by the Western Highlands Provincial Executive

Waigani : Amet CJ., Kapi DCJ.,

Los, Brown & Sawong JJ.

1995 : 1st, 19th & 20th Sept.

Mr K Naru, for the affirmative.

Mr B Nanei, for the negative.

Mr J Baker, for the negative.

AMET, CJ: This is a special reference under section 19 of the Constitution, brought by the Western Highlands Provincial Executive, an authority entitled to make application to the Supreme Court. The Reference seeks the Supreme Court's advisory opinion on the constitutional validity of section 10 of the Organic Law on Provincial Governments and Local-level Governments.

The National Parliament had contemporaneously amended the constitutional provisions that provided for the Provincial Government system and replacing it with provisions for Provincial Governments and Local-level Governments system and at the same time repealing the Organic Law on Provincial Government and enacting a new Organic Law on Provincial Governments and Local-level Governments.

The constitutional amendment repealed the whole of part VI(A) and replaced it with a new part VI(A) entitled Provincial Governments and Local-level Governments. The principle relevant sections of this new part are the following:

187(A) — Provincial Governments and Local-level Governments system.

There shall be a system of Provincial Governments and Local-level Governments for Papua New Guinea in accordance with this part.

187(B) - A grant of Provincial Governments and Local-level Governments.

An Organic Law shall provide for, or make provision in respect of, form a manner of establishment of the Provincial Governments and the Local-level Governments.

187(C) — Constitution, functions, etc: of Provincial Governments and Local-level Governments.

(1) Subject to this part, an Organic Law shall make provision in respect of the Constitution, powers and functions of a Provincial Government or a Local-level Government.

(2) For each Provincial Government and Local-level Government, there shall be established -

(a) An elective, or mainly elective, legislature with such powers as are conferred by law; and

(b) An executive; and

(c) An office of Head of the Executive.

(3) An Organic Law shall provide for the minimum number of members for the Provincial Assemblys and Local Level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local Level Governments.

The Organic Law on Provincial Governments and Local Level Governments provided in the preamble that it was an Organic Law -

(a) To implement part 6(A) (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; and

(b) To repeal and replace the Organic Law on Provincial Government and for related purposes.

Under Division III section 5(1) a system of Provincial Governments and Local Level Governments is hereby established.

Section 10 Provincial Government and Provincial Legislature.

(1) A Provincial Government is hereby established for each province.

(2) A Provincial Legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established, for each Provincial Government.

(3) A Provincial Assembly shall consist of -

(a) all Members of the Parliament representing electorates in the province; and

(b) heads of the rural Local-level Governments in the province; and

(c) one representative to represent the heads of both urban authorities and urban councils in the province; and

(d) where the chieftaincy system is in existence and is accepted in a province paramount chiefs from the province not exceeding three in number or their duly appointed nominees, who shall be appointed by the Minister responsible for provincial government and local-level government matters on the recommendation of the Provincial Executive Council; and

(e) one woman representing women in the province appointed by the Provincial Executive Council on the nomination of the Provincial Council of Women; and

(f) such other members, not exceeding three in number, as the Provincial Assembly, may by law, appoint from time to time.

Four principle questions have been referred pertaining to these principal constitutional and organic law provisions. They are:

(a) Is Section 10 of the proposed Organic Law on Provincial and Local-level Governments inconsistent with Sections 187C(2)(a) of the Constitution, or, alternatively, with the proposed Section 187C(2)(a) of the Constitution of the Constitution contained in Section 5 of the proposed Constitutional Amendment (Provincial Governments and Local-level Governments) law, in that to the extent that the said Section 10 provides for a provincial legislature to be made up of:-

(i) Persons holding office in the provincial legislature ex officio, by virtue of their positions in other bodies, namely the Parliament and rural Local-level Governments; and

(ii) Persons appointed by the Minister responsible for Provincial and Local-level Government matters, the Provincial Executive Council and the Provincial Assembly; and

(iii) A representative of heads of urban authorities and urban councils, whose manner of selection for and taking up of the membership is not provided.

it does not meet the requirement that an Organic Law provide for 'an elective, or mainly elective, provincial legislature' or 'an elective, or mainly elective, legislature, as the case may be?

(b) Is section 10 of the proposed Organic Law on Provincial and Local-level Government inconsistent with section 50 of the Constitution to the extent that it provides for members of the Provincial Legislature to hold office without being directly elected to the provincial legislature?

(c) Is section 10 of the Proposed Organic Law invalid in that it is not expressly authorised by the Constitution or by the proposed Constitutional Amendment, as required by section 12(1)(a) of the Constitution?

(d) Where it is determined that a provision of a proposed law which has been supported on a division by the prescribed majority of votes in accordance with section 14(1) of the Constitution is invalid, does that determination have the effect of:

(i) preventing further passage through the Parliament of the entire proposed law; or

(ii) permitting further passage through the Parliament of that proposed law other than the provisions determined to be invalid; or

(iii) permitting further passage through the Parliament of the proposed law, including the provisions determined to be invalid; or

(iv) amending the proposed law so as to delete the provisions determined to be invalid.

It should be noted at the outset that when the questions were referred and argued the amendments were proposals only but shortly after the completion of submissions the proposals were enacted by Parliament into law in the same form as the proposal without any amendment to them. The issues remain the same however as to whether or not the Organic Law section 10 is inconsistent with the constitutional section 187(C)(2)(a).

In the course of submissions as to the interpretations to be ascribed to the amended sections 187(C)(2)(a) and 5 and in the submissions pertaining to the ambit and scope of section 24 of the Constitution relating to use of certain materials as aids to interpretation, parties were directed to make additional submissions on the principles in determining whether the Court may resort to other extrinsic materials in addition to the materials referred to in s 24 in interpreting provisions of the amendments to the Constitution and the Organic Law.

Section 24. Use of certain materials as aids to interpretation.

(1) The official records of debates and of votes and proceedings -

(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and

(b) in the Constituent Assembly on the draft of this Constitution,

together with that report and any other documents or papers tabled for the purposes of or in connexion with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.

(2) An Act of the Parliament may make provision for the manner of proof of the records and documents referred to in Subsection (1).

(3) In Subsection (1), "the report of the Constitutional Planning Committee" means the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974.

Counsel for the referror, advocating the affirmative proposition to the questions, submitted principally that the specific...