Special Reference Pursuant to Constitution, Section 19; Re Sitting Days of Parliament and Regulatory Powers of Parliament; Reference by The Head of State Acting on The Advice of The National Executive Council (2003) SC722

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Los J, Sheehan J, Sakora J, Sevua J, Sawong J
• Judgment Date: 31 December 2002
• Citation: (2002) SC722
• Docket Number: SCR 3 of 2000
• Court: Supreme Court
• Year: 2002
• Judgement Number: SC722

Full Title: SCR 3 of 2000; Special Reference Pursuant to Constitution, Section 19; Re Sitting Days of Parliament and Regulatory Powers of Parliament; Reference by The Head of State Acting on The Advice of The National Executive Council (2003) SC722

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

Judgment Delivered: 31 December 2002

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR 3 of 2000

SPECIAL REFERENCE PURSUANT TO

CONSTITUTION, SECTION 19; RE SITTING

DAYS OF PARLIAMENT AND REGULATORY

POWERS OF PARLIAMENT.

REFERENCE BY THE HEAD OF STATE

ACTING ON THE ADVICE OF THE

NATIONAL EXECUTIVE COUNCIL.

Waigani: Amet, CJ

Kapi, DCJ

Los, J

Sheehan, J

Sakora, J

Sevua, J &

Sawong, J

2001 : 23rd & 24th April

2002 : 31st December

Supreme Court Reference by the Head of State under s 19 (b) of the Constitution – Meaning of “meet”, “in principle” and “nine weeks” under s 124 (1) of the Constitution.

Meaning and Application of s 23 of the Constitution.

No provision in law to raise the same issue a third time.

Abuse of process of Court – to raise the same issue a third time.

Dr J. Nonggorr with Mr C. Nidue for Referror (Head of State)

Mr C. Narokobi for National Parliament

Mr D. Cannings with Ms T.Suwae for the Intervener (Ombudsman

Commission)

31st December 2002

AMET CJ: (dissenting)

KAPI DCJ: The Head of State acting on the advice of the National Executive Council made a special reference under s 19 (b) of the Constitution. The questions referred are:

Question 1

What do the following words and expressions in Section 124 (1) of the Constitution mean:-

(a) “meet”?

(b) “in principle”?

(c) “nine weeks”

Question 2

If the words “nine weeks” in Section 124 (1) refer to a defined number of days, what constitutes a day?

Question 3

If the Parliament is adjourned for lack of quorum on a “day” scheduled for it to “meet” within the meaning of those words as interpreted in answer to questions 1 and 2, is such adjourned day included in the number of days the Parliament is required to meet?

Question 4

Is it mandatory for the Parliament to “meet” for “nine weeks” within the meaning of these expressions as interpreted in answer to question 1?

Question 5

If the answer to question 4 is yes – is the Parliament in breach of Section 124 (1) of the Constitution if it does not meet for the required period?

Question 6

If the answer to question 5 is yes, and if, within a period of 12 months of a Parliament year, the Parliament completes its business in less than “nine weeks” within the meaning of that expression as interpreted in answer to question 1, is it still in breach of Section 124 (1) of the Constitution?

Question 7

If the answer to question 5 or 6 is yes – in either case, who is to be held responsible for the breach?

Question 8

Having regard to the answer to question 7, what sanctions are to be imposed on those held responsible for a proven breach?

Question 9

Having regard to Section 99, 100 and 115 of the Constitution, do the Courts have jurisdiction to impose sanctions on those determined as being responsible in the answer to question 7?

Question 10

Having regard to Section 99 and 115 of the Constitution, is the question as to the number of days and weeks the Parliament meets in each 12 months a matter of Parliament procedure and is legislative function and therefore not subject to judicial supervision?

Question 11

Having regard to Section 99 and 115 of the Constitution, do the National and Supreme Courts have the constitutional authority to:-

(a) decide that the Parliament is in breach of Section 124 (1) of the Constitution; and

(b) impose sanctions on Parliament or members of Parliament?

Most of the questions relate directly or indirectly to the interpretation and application of s 23 and s 124 (1) of the Constitution. These provisions were the subject of decision by the Supreme Court in SCR No. 3 of 1999 (Unreported Judgement of the Supreme Court dated 25th June 1999) (Ombudsman Reference).

The Parliament sought to re-open the decision in the Ombudsman Reference on the basis that the Court misapprehended the law. The Court dismissed the application and confirmed its decision (see SCR No. 3 of 1999 (No. 2) (Unreported Judgment of the Supreme Court dated 23rd February 2001). The majority concluded:

“This reference was fully argued last year and the Applicant duly represented, had ample and full opportunity to raise all issues it considered necessary. Regrettably all the issues now raised as errors were argued or at least alluded to in the earlier proceedings. The claims of errors on the part of the Court and of its misapprehending law or fact do not stand.”

The present reference is the third attempt to consider the same issues within a short space of time. There is no provision in law which permits the parties to raise the same issues again a third time in any other proceeding (see Sevua J. in Titi Christian v Rabbie Namaliu & The State (Titi Christian Case) (Unreported Judgment of the Supreme Court dated 18th July 1996) at page 88).

The same parties, namely, the Ombudsman Commission, the National Parliament and the National Executive Council argued the interpretation of the same provisions in the two previous decisions referred to above. In my opinion, they cannot be permitted to raise the same issues again. In Titi Christian Case, the Chief Justice set out the common law principles of res judicata and issue estopple and concluded that Titi Christian was estopped from raising the same issues determined already by the Supreme Court in Isidore Kaseng [1995] PNGLR 481. I reached the same conclusion so far as these principles apply to the same parties (see Titi Christian Case (supra) pages 35-36). Salika J. agreed with the Chief Justice on this issue at page 73 and Andrew J. agreed on page 82.

Alternatively, the present reference is an abuse of the process of Court in so far as it raises issues that have been determined (see Titi Christian Case (supra) Chief Justice at page 20, Andrew J. at page 82 and Sevua J. at page 88.

Section 124 (1)

As I have pointed out earlier, the parties argued the correctness of the decision in the Ombudsman Reference (supra) in respect of this provision in the application to review the decision of the Supreme Court under the “Slip Rule” and the Court dismissed the application and confirmed its decision.

The arguments presented in the present reference in respect of s 124 are a rehash of the arguments presented in the previous proceedings. In particular, the issues raised in Questions 1, 4, and 5 have been determined in the two previous decisions and need not be considered again for the reasons I have set out above.

I am not persuaded that the majority decision in the Ombudsman Reference made any error in the interpretation and application of s 124 (1). I reaffirm my opinion.

However, several questions relating to s 124 (1) have been raised which may require clarification. Questions 2 and 3 may be taken together. Counsel did not contest the answers to these questions. Where the Parliament has a quorum and sits to deal with business, that will constitute a day for the purposes of calculating the “nine weeks” under s 124 (1). Where there is no quorum, the Parliament cannot do business, it must be adjourned to the next sitting day (see s 36, 37 of Standing Orders). Such a sitting cannot be regarded as a sitting day. In the Ombudsman Reference, I made reference to sixty three (63) working days. These are sitting days with a quorum.

Question 6 is premised on the basis that “…the Parliament completes its business…”. The duration of the sittings of the Parliament under s 124 (1) is not determined by reference to the completion of Parliament business. If the Constitution intended this, it would have said so.

The business of the Parliament and how it may deal with it, is the subject of Standing Orders. However, the Standing Orders are made subject to s 124 (1) of the Constitution (see s 124 (3), see also s 1 of the Standing Orders). Therefore, the minimum duration in which the Parliament may do its business must not be less than “nine weeks” in “principle”...