Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas Somare [1981] PNGLR 265

• Jurisdiction: Papua New Guinea
• Judge: Miles J:
• Judgment Date: 03 August 1981
• Docket Number: SCR No 4 of 1980
• Citation: [1981] PNGLR 265
• Court: Supreme Court
• Year: 1981
• Judgement Number: SC204

Full Title: Supreme Court Reference No 4 of 1980; Re Petition of Michael Thomas Somare [1981] PNGLR 265

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Kapi J, Miles J

Judgment Delivered: 3 August 1981

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 4 OF 1980

IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA

AND

IN THE MATTER OF THE RIGHT HONOURABLE MICHAEL THOMAS SOMARE, C.H., M.P.

Waigani

Kidu CJ Kearney DCJ Greville Smith Kapi Miles JJ

30-31 October 1980

1-2 December 1980

3 August 1981

CONSTITUTIONAL LAW — Practice and procedure — Locus standi — Petition disputing validity of Act of Parliament — Petition by Leader of Opposition — Petitioner having sufficient standing as citizen — Constitution ss. 18,Infra p. 277.1 19, 23, Sch. 2.1, Sch. 2.3.

CONSTITUTIONAL LAW — Underlying law — Formulation of — Constitution s. 9, Sch. 2.1, Sch. 2.3.

(Kearney DCJ and Greville Smith J dissenting.) The Leader of the Opposition in the National Parliament, as a citizen, has standing to invoke the powers of the Supreme Court under s. 18 (1) of the Constitution to determine whether an Act of Parliament (The Defence Force (Presence Abroad) Act 1980) is invalid as being unconstitutional.

(Per Kidu CJ Kapi and Miles JJ): The essential purpose of s. 19 of the Constitution is to vest in the Supreme Court a limited jurisdiction to give advisory opinions; it is not meant to cover the field in relation to applications for rulings on the constitutionality of Acts of the Parliament, by way of public interest suits.

(Per Kidu CJ): In the formulation of a rule of the underlying law as to standing to challenge the constitutionality of an Act of Parliament:

(a) the common law standing rules are inapplicable, and should only be used by way of analogy;

(b) for custom to be relied upon, there must be evidence that the custom applies in at least the majority of the Provinces;

(c) standing should not be restricted to any particular group; and

(d) the general principle is that the People, the depository of all power, have standing.

(Per Kapi J):

(1) Standing to apply under s. 23 of the Constitution is not governed by s. 19, but by reference to laws adopted or created under Sch. 2;

(2) An enquiry into the underlying law should commence with an examination of custom adopted under Sch. 2.1 because such custom is superior to the adopted common law;

(3) A custom adopted under Sch. 2.1 in relation to an issue which applies to the whole country, must be one common to all societies throughout the country. This is a question of fact;

(4) The common law on standing should not be adopted, because of the different constitutional background;

(5) The following rule of standing should be formulated under Sch. 2 (3): an applicant must have a sufficient interest in that to which the application relates. The test of sufficient interest is objective;

(6) If Members of Parliament do not ensure compliance with the Constitution, every citizen has standing to do so. Whether standing is granted to a citizen is a matter for the court's discretion;

(7) The applicant has standing to seek a declaration of invalidity both:

(a) as a Member of Parliament; and

(b) as a citizen.

Matters to be taken into account when formulating a new rule under Sch. 2 (3), and the "floodgates" argument, discussed.

(Per Miles J):

(1) The legislative power of the people vested in the National Parliament is supervised by the exercise of the judicial power of the people vested in the Supreme Court to rule legislation unconstitutional;

(2) As none of the laws in s. 9 of the Constitution provides a rule in relation to standing to seek a declaration as to the constitutional validity of an Act, it is the duty of the Supreme Court to formulate such a rule under Sch. 2.3 (1) of the Constitution, as part of the underlying law;

(3) The recognition of standing is a matter of the court's discretion.

Judicial methodology on use of custom in development of the underlying law, standing rules in other jurisdictions, and matters going to the exercise of the discretion to recognize standing, discussed.

Reference

This was a reference to the Supreme Court by the National Court pursuant to s. 18 (2) of the Constitution of the question whether the Leader of the Opposition in the National Parliament had sufficient locus standi to present a petition disputing the validity of an Act of Parliament. For the proceedings in which the question was referred, see Re Michael Thomas Somare M.P. and Sir Julius Chan [1980] P.N.G.L.R. 255.

Counsel

P. Donigi, for the petitioner.

C. Maino Aoae and L. Daniel by leave intervening for the Principal Legal Adviser to the National Executive Council.

Cur. adv. vult.

3 August 1981

KIDU CJ: This Court is asked to rule on whether or not the petitioner has sufficient standing to invoke the jurisdiction of the National Court or the Supreme Court.

What the petitioner asked the National Court was to rule on the constitutionality or otherwise of two decisions of the Parliament — one approving the commitment of troops to Vanuatu for peace-keeping purposes and the other enacting the Defence Force (Presence Abroad) Act 1980.

Section 23 (2) of the Constitution was relied upon to sanction the rulings sought. This provisions reads:

" (2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution."

This provision does not confer standing. It empowers the National Court to prevent or remedy breaches of constitutional restrictions, prohibitions or duties. In this case there is no question raised of a Constitutional Law which prohibits or restricts an act or imposes a duty. It could be said that Parliament is under a duty to act within the ambit of powers conferred on it by the Constitution. If it does not, can it be sent to gaol for ten years or fined K10,000 or ordered to pay compensation? To me it seems that using s. 23 to punish or penalize Parliament is not what the provision was intended to do. Although the court has power to rule acts of the Parliament unconstitutional, it has no power to penalize it, nor does it have power to order it to pay compensation. (See s. 115 of the Constitution.) It has no power either to stop the Parliament from making laws. The court has power only to determine whether a law made by Parliament is constitutional or unconstitutional.

The rulings sought involve interpretation or application of Constitutional Laws. Subject to application of s. 23, s. 42 (5), s. 57 and s. 58 of the Constitution, the Supreme Court has "original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law" (Constitution s. 18 (1) ). The question then is whether the Rt. Hon. Michael Thomas Somare, C.H., M.P., has the necessary legal standing to invoke the jurisdiction of this Court under s. 18 (1) of the Constitution. Mr. Principal Legal Adviser submitted that s. 19 of the Constitution barred him. There is no doubt that Mr. Somare cannot utilize s. 19 and it was not relied upon by him. What he submitted through his counsel was that this was a case in which the court should formulate a new rule on locus standi. His counsel submitted that the common law should not be applied as a matter of course. It is a source which should be used in formulating underlying laws suited to Paua New Guinea.

The Principal Legal Adviser submitted that s. 19 was applicable and common law was not. In the alternative if common law was applicable, Mr. Somare had not established an interest sufficient to enable him to invoke the jurisdiction of this Court.

Section 19 empowers the Supreme Court to give advisory opinions when requested by 'authorities' enumerated in s. 19 (3) thereof. It is a special provision included in the Constitution for a specific purpose — to enable the court to give advisory opinions. It is not meant to cover the field in relation to public interest constitutional questions. The Constitutional Planning Committee (the C.P.C.) in the narrative stated the following:

"150. A common device to get round the technical rules which restrict access to courts (as well as for other objectives) is to vest the jurisdiction to give an advisory opinion on constitutional issues in the courts. Under such a procedure specified bodies are authorised to refer a matter to the court for its opinion. It is not always necessary that a dispute should have arisen; an institution may wish to have an authoritative ruling on a constitutional point before embarking on a particular piece of legislation or a certain policy. It is flexible in that a party or parties can define...