Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628

• Jurisdiction: Papua New Guinea
• Judge: Sevua J:
• Judgment Date: 25 June 1999
• Citation: [1999] PNGLR 285
• Docket Number: SCR No 3 of 1999: Special Reference Pursuant to Constitution s19
• Court: Supreme Court
• Year: 1999
• Judgement Number: SC628

Supreme Court: Amet CJ, Kapi DCJ, Woods J, Los J, Sheehan J, Sakora J, Sevua J

Judgment Delivered: 25 June 1999

SC628

PAPUA NEW GUINEA

[In the Supreme Court at Waigani]

SC REF. NO. 3 OF 1999

SPECIAL REFERENCE PURSUANT TO CONSTITUTION S. 10

RE CALLING OF THE PARLIAMENT

REFERENCE BY THE OMBUDSMAN COMMISSION

Waigani : Amet, CJ, Kapi DCJ., Woods, J, Los, J., Sheehan J, Sakora J. Sevua J.

10,11 May & 25 June 1999

Constitutional Law — The Parliament — Nine weeks of meetings in each 12 months — "In principle" requirement — to be read with schedule 1.6 of Constitutional Law — Interpretation — Constitution, meaning of "nine weeks" under s 124 of Constitution.

The Constitution law — Parliament — duty to sit in principle for not less than nine weeks in each 12 months period.

Constitutional Law — Sanctions — National Court has original jurisdiction to lapse sanctions Constitution, s 23

Practice and Procedure — National Court has jurisdiction to supply procedural laws under Constitution, s 22.

D. Cannings, for Ombudsman

C. Coady , for the Speaker of the Parliament

Sir Charles Maino, for the National Executive Council.

25 June 199

AMET, CJ: I propose to give short answers to the questions referred and deliver fuller reasons at a later time.

This is a special reference made pursuant to Constitution s. 19 by the Ombudsman Commission, seeking an opinion on the interpretation and application of several provisions of the Constitution: in particular s. 124(1)

Section 19 provides for Special References to the Supreme Court and the authorities that are entitled to make differences. Subsection 19(1) provides that:

Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in subsection (3), give its opinion on any question relation 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".

The Ombudsman Commission is an authority referred to in sub-section 19(3).

Section 124 provides for the calling of the Parliament in the following terms:

(1) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principles, for not less than nine weeks in each such period.

(2) An Organic Law make provision for the calling of the meetings of the Parliament

(3) Subject to Subsections (1) and (2), an Act of the Parliament or the standing orders of the Parliament may make provision in respect of the sittings of the Parliament.

The following circumstances gave rise to the questions that have been referred:

· The day fixed for the return of the writs after the 1997 general elections was 15 July 1997

· In the period of 12 months commencing on 16 July 1997 and ending on 15 July 1998, the 6th National Parliament met 7 times, on a total of 40 days.

· In the period of 12 months commencing on 16 July 1998 and ending on the 15 July 1998 and ending on the 15 July199, the Parliament has, so far met 4 times, on a total 17 days.

· On 2 December 1998, the Parliament fixed 13 July 1999 as the day on which it shall next meet, i.e the Parliament adjourned for 7 day months and 11 days.

· If the parliament meets on each of 13,14 and 15 July 199, it will during the period of 12 months, have sat for a total of 20 days.

Question 1

Having regard to the dates, on which the 6th National Parliament has met was Section 124(1) of the Constitution breached when the Parliament decided on 2 December 1998 to adjourn to 13 July 1999?

The Supreme Court had determined in SC Reference No.4 of 1990, [1994] 141 that s. 124(1) imposed three separate requirements as to meetings of the Parliament. The first, Parliament must be called to meet not more than 7 days after the days fixed for the return of writs for a general election. This requirement is not relevant to the issues raised in this reference. The second is that Parliament must meet at least three times in each period of 12 months. Thirdly, Parliament must, in principle, meet for not less than nine weeks in each such period of 12 months.

In the relevant 12 months period from 15 July 1999 Parliament had already MET 4 times, and when it meets on the 13 July 1999 it will be the 5th Meeting within the 12 months period. Parliament has thus fulfilled the second requirement of s.124(1), which is that it must meet at least three times in each period of 12 months.

The circumstances that gave rise to the reference raise the issue as to whether the third requirement of s.124(1) will be complied with when Parliament meets from 13-15 July 1999. It will only have sat for a total of 20 days.

The question therefore arises as to the interpretation and application of the third requirement of s 124(1) that:

"The Parliament…shall meet… in principle, for not less than nine weeks in each such period". (of 12 months)

There are, in my opinion, three elements of this third requirement that need to be addressed in determining the questions referred. Firstly, what is meant by the term "meet" and "meeting", secondly, what the term " in principle" means and what the period "nine weeks" means.

I consider that the provisions generally and the second and third elements and the issues raised in this reference have been addressed by the Supreme Court in SCR No 4 of 1990. I am not persuaded that that majority judgment of a senior five — member court is wrong and should be overruled.

In SCR No 4 of 1990 the reference was made after the Leader of the Opposition and Deputy Leader of the Opposition took out proceedings in the National Court challenging the validity of a decision of the Parliament to adjourn from the 7 November 1990 until 16 July 1991. The reference sought the opinion of the Court on three questions. The first concerned when the "period of 12 months" referred to in s.124 begins and ends. The second and third questions, which are relevant and applicable to the questions raised in this reference, were;

Question 2:

Does s.124 of the Constitution place a duty on:

(a) the Speaker of the Parliament; and

(b) The National Executive Council to ensure that the parliament meets not less than three times in each period of 12 months and, in principle, for less than nine weeks in each such period.

Question 3:

With reference to, and for the purpose of, both Question 1 and 2:

(a) if a meeting of the Parliament starts before the end of the "12 month period" as interpreted in Question 1, and ends after the commencement of the next "12 month period" are there two meetings, being one in each of the two "12 month period?

(b) If the answer is in the negative, in which "12month period" does the meeting fall?

What does to "meet" and "meeting" mean and what doe "sit" and "sitting" of the Parliament mean? Neither of these expressions is defined in the Constitution, but they are defined in the Standing Orders of the Parliament.

"Meeting" is defined as meaning "the period between the date of commencement of the business of the Parliament and the last day when such business is completed".

"Sitting " is defined as meaning the period during which the parliament is sitting without adjournment, and includes any period during which it is in Committee of the whole Parliament.

I consider that the term and the meaning of the expression "meet" or "meeting " is and should not be confused with the term and meaning of the expression "sitting". Meeting refers to a period whereas sitting refers to specific days. The clearest illustration of the distinction is that a "meeting" may last over a period of three weeks and during which Parliament may only actually "sit" for a total period of 12 days and not the full 21 days of the three weeks as might be assumed by equating a "meeting" with the sitting days. This is because the 12 "sitting days have been the four working days in each of the three weeks during which Parliament "met".

When Parliament id first "called to meet" after the general election, it may "meet" for three weeks, during which period it may only "sit" for ten days spread over the three weeks. In my opinion, Parliament has "met" for three weeks during which it has "sat" 10 days.

In s.124 itself the contradistinction is made between "meeting" and "sitting", when in sub-sections (1),(2) and (3). In sub-section (3) it provides for the "sittings" of the Parliament, in contradistinction to "meetings".

In my opinion the following additional body of provisions of the Constitution compel the interpretation that "meetings" should not be mistaken with "sitting" days:

Section 2 (1), 14(2)(a), 15(3)(c), 88(3)(4)(5)(b), 104(2)(d), 114(1), 115(6), 136, 142(2), (3) 187E(6)(a)&(b), 187F(2)(b), 239(2), 241(2)(b),...