Supreme Court Reference No 1 of 2001: In the Matter of Section 18(1) of the Constitution of Papua New Guinea and In the Matter of Jim Kas, Governor, Madang Province (2001) SC670

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ, Sheehan J, Salika J
• Judgment Date: 28 June 2001
• Citation: (2001) SC670
• Court: Supreme Court
• Year: 2001
• Judgement Number: SC670

Full Title: Supreme Court Reference No 1 of 2001: In the Matter of Section 18(1) of the Constitution of Papua New Guinea and In the Matter of Jim Kas, Governor, Madang Province (2001) SC670

Supreme Court: Kapi DCJ, Sheehan J, Salika J

Judgment Delivered: 28 June 2001

SC670

PAPUA NEW GUINEA

[In the Supreme Court of Justice in Waigani]

SCR No. 01 of 2001

IN THE MATTER OF SECTION 18(1) OF THE CONSTITUTION

OF PAPUA NEW GUINEA

AND IN THE MATTER OF JIM KAS, GOVERNOR,

MADANG PROVINCE

Waigani: Kapi DCJ, Sheehan J and Salika J.

2001: 28th June

Constitutional Law — Whether a person may file a "reference" directly in the Supreme Court under Constitution, s 18 (1) — A Person may directly invoke the original jurisdiction of Supreme Court under s 18 (1) by appropriate cause of action under the Law.

B. Andrew for Applicant

D. Lambu for the State

By The Court: Mr. Jim Kas filed this proceeding by way of a reference under s 18(1) of the Constitution on 11th January 2001. At the hearing, the question arose, whether, Mr. Kas could institute the cause of action directly in the Supreme Court by way of a reference under s 18(1) of the Constitution?

The Court expressed the desire at the outset that if parties could agree to convert or substitute the present proceeding with the appropriate originating process, we would be prepared to deal with the substantive constitutional issues. We adjourned this matter to the afternoon to enable parties to resolve this issue. However, the parties were unable to agree to such a cause and elected to argue the preliminary issue. After hearing oral arguments, we dismissed the reference with costs to the respondents with reasons to be published later. This we now do.

Counsel for Mr. Kas submitted that the preliminary issue was raised and determined by the Supreme Court in the Matter of Hon. Anderson Agiru MP (Unreported Judgment of the Supreme Court dated 21st December 2000) (Agiru Case) and therefore this reference is validly before the Court. On the other hand, counsel for the State and the Provincial Assembly both submitted that the Supreme Court in the Agiru Case misunderstood and erroneously applied the principle in the Matter of Petition of the Rt. Hon. Michael Somare [1982] PNGLR 65 (Somare Petition) and therefore we should not follow it. They submitted that there is no provision for reference under s 18(1) of the Constitution and urged the Court to dismiss the proceeding.

The Hon. Anderson Agiru MP the Governor of Southern Highlands Province filed a reference under s 18(1). Apart from other preliminary issues raised, the State argued that the Governor could not come directly to the Supreme Court by way of a reference under s 18(1). The Court at page 3 held:

"Another threshold issue raised by the Court itself was as to whether a s. 18(1) reference is able to come directly to the Court. We are satisfied that, on the authority of the Supreme Court Reference No. 4 of 1980 (No.2) In the Matter of a Petition by Rt. Hon. Michael Somare under s 18(1) of the Constitution [1982] PNGLR 65, an interested leader or a private citizen may apply...