Supreme Court Reference No 5 of 1985; REFERENCE PURSUANT TO THE CONSTITUTION, S18(2) CONCERNING THE JURISDICTION OF THE NATIONAL COURT IN RELATION TO MATTERS BROUGHT UNDER CONSTITUTION, S41; Joseph Lemuel Raz v Paulias Matane, John Giheno, Anthony Bais, Francis Pusal and Bebes Korowaro [1985] PNGLR 329

• Jurisdiction: Papua New Guinea
• Judge: Amet J:
• Judgment Date: 27 November 1985
• Court: Supreme Court
• Docket Number: SCR No 5 of 1985
• Citation: [1985] PNGLR 329
• Year: 1985
• Judgement Number: SC305

Full Title: Supreme Court Reference No 5 of 1985; REFERENCE PURSUANT TO THE CONSTITUTION, S18(2) CONCERNING THE JURISDICTION OF THE NATIONAL COURT IN RELATION TO MATTERS BROUGHT UNDER CONSTITUTION, S41; Joseph Lemuel Raz v Paulias Matane, John Giheno, Anthony Bais, Francis Pusal and Bebes Korowaro [1985] PNGLR 329

Supreme Court: Kidu CJ, Kapi DCJ, Amet J

Judgment Delivered: 27 November 1985

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO 5 OF 1985

REFERENCE PURSUANT TO THE CONSTITUTION, S 18 (2) CONCERNING THE JURISDICTION OF THE NATIONAL COURT IN RELATION TO MATTERS BROUGHT UNDER CONSTITUTION, S 41 JOSEPH LEMUEL RAZ

V

PAULIUS MATANE, JOHN GIHENO, ANTHONY BAIS, FRANCIS PUSAL AND BEBES KOROWARO

Waigani

Kidu CJ Kapi DCJ Amet J

23 September 1985

27 November 1985

CONSTITUTIONAL LAW — Basic rights — Enforceability — "Right or freedom" — Proscribed acts — Enforceability — Constitution, ss 23 (2), 41, 57 (1), 155 (4).

CONSTITUTIONAL LAW — Proscribed acts — Not "basic right" — Not "right or freedom" under s 57 (1) — Enforceability — Constitution, ss 23 (2), 41, 57 (1), 155 (4).

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Interpretation and application of — Question relating to — When must be referred to Supreme Court — When National Court may determine — Constitution, s 18 (2).

PRACTICE — Reference to supreme Court — Question of relating to interpretation or application of Constitution — When must be referred to Supreme Court — When National Court may determine — What is "question relating to ..." — Constitution, s 18 (2).

The Constitution, s 41, which is in Div 3 of Pt III, provides:

"Notwithstanding anything to the contrary in any other provision of any law, any act that is done under a valid law but in the particular case:

(a) is harsh or oppressive ... is an unlawful act."

The Constitution, s 57 (1), provides:

"A right or freedom referred to in this Division [ie Pt III, Div 3] shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament...." 11

The Constitution, s 18, provides:

"Subject to this 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...."

Held

(1) (Amet J dissenting) The Constitution, s 41, does not confer a "right or freedom" within the meaning of s 57 (1) and is therefore not enforceable under s 57 (1).

(2) (Amet J dissenting) The words "right or freedom" in the Constitution, s 57 (1), are to be interpreted to mean the "rights" or "freedoms" that are guaranteed under the Constitution, Pt III, Div 3, and referred to as the human rights or basic rights.

(3) (Amet J not deciding) The Constitution, s 41, confers a right of action which may be enforced by the National Court under the Constitution, s 23 (2) or s 155 (4).

(4) (By Kapi Dep CJ) Under s 18 of the Constitution a question relating to the interpretation or application of a constitutional law arises when there is an issue as to the interpretation or application of a constitutional law.

(5) Where the Constitution or any constitutional law gives jurisdiction to the National Court to interpret or apply a constitutional law, and where a question relating to the interpretation or application of a constitutional law arises, the National Court is not bound to refer the question to the Supreme Court.

The State v Peter Painke (No 2) [1977] PNGLR 141 at 145; Re s 42 of the Constitution and Prai and Ondawame [1979] PNGLR 42, considered.

(6) Where the National Court has no jurisdiction to interpret or apply a constitutional law and a question relating to the interpretation or application of a constitutional law arises, the National Court is bound to refer the question to the Supreme Court.

(7) (Amet J not deciding) Accordingly, as the National Court has jurisdiction to interpret and apply the terms of s 41 of the Constitution under s 23 (2) or s 155 (4) of the Constitution, it is not bound to refer any question relating to the interpretation or application thereof to the Supreme Court.

Cases Cited

Avia Aihi v The State [1981] PNGLR 81.

Jammu and Kashmir, State of v Thakur Ganga Singh (1960) 2 SCR 346.

Premdas v Independent State of Papua New Guinea [1979] PNGLR 329.

S 42 of the Constitution and Prai and Ondawame, Re [1979] PNGLR 42.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 2 of 1981; Re s 19 (1) (f) of the Criminal Code [1982] PNGLR 150.

SCR No 3 of 1982; Re ss 57 and 155 (4) of the Constitution [1982] PNGLR 405.

State, The v Peter Painke (No 2) [1977] PNGLR 141.

Reference

This was a reference pursuant to the Constitution, s 18 (2), of the questions set out at the beginning of the reasons for judgment of Kidu CJ hereunder.

Counsel

T Griffiths, for the plaintiff.

A Tadabe, for the defendants.

Cur adv vult

27 November 1985

KIDU CJ: The questions this Court is required to answer are as follows:

"1. Does s 41 of the Constitution confer a right enforceable by the National Court under s 57 of the Constitution?

2. If the answer to Question 1 is in the negative, does the said s 41 confer a right which is enforceable by the National Court under any other provisions of the Constitution?

3. Does s 18 of the Constitution say that as soon as a court (other than the Supreme Court) or a tribunal begins to consider whether the provisions of a constitutional law means one thing or another or allows the court or tribunal to do or desist from doing anything that such a question must be referred to the Supreme Court?"

QUESTION 1

There is, in my opinion, no doubt that s 41 of the Constitution confers a right — the right to challenge an act done under a valid law. In SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 the following was said by Kapi DCJ at 332-333 of the nature of this right:

"... A remedy under s 41 cannot be described as an enforcement of a right or freedom under s 57 of the Constitution, and therefore the National Court has no power to grant the remedy. It is a general remedy which is quite distinct and separate from enforcement of a right or freedom ...

Section 57 can have no application to the issue in question. Section 57 only applies to enforcement of rights or freedoms. As I have already pointed out, s 41 is a separate and distinct constitutional remedy."

Bredmeyer J (at 344) said:

"Although s 41 is not one of the enumerated basic rights contained in the Constitution, but rather an adjunct to them, I consider that it is, nevertheless, a 'right' for the purposes of enforcement under s 57."

Kapi DCJ's view that s 41 provides for a constitutional remedy means, it seems to me, that s 41 confers a right of a sort and I agree with his Honour that this right is neither a right nor freedom mentioned in s 57 of the Constitution. This provision (that is s 57) states, inter alia, as follows:

" (1) A right or freedom referred to in this Division [that is Div 3, Pt III of the Constitution] shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament...."

I have, ever since the Constitution came into operation on 16 September 1975, always held the view that s 57 was included in the Constitution for the sole purpose of the enforcement of the human rights (we call them "Basic Rights") entrenched therein. I still retain this view and in my opinion this is supported by the CPC Report. I bear in mind that not all recommendations in the CPC Report found their way into the Constitution nor did all of them get accepted fully, but with respect to the human rights (or rights and freedoms) and s 57 the CPC Report recommendations were included in the Constitution more or less word for word. These rights and freedoms are:

1. The right of life

2. The right to personal liberty

3. Freedom from forced labour

4. Freedom from inhuman treatment

5. Freedom for arbitrary search or entry

6. The right to protection of Law

7. Freedom of conscience, thought and religion

8. Freedom of expression and publication

9. Freedom of assembly and association

10. Freedom of employment

11. Freedom of movement

12. The right of privacy

13. The right to stand for election to public office and to vote

14. Freedom of information

15. Freedom from deprivation of property

There is absolutely no doubt that s 41 does not provide for a human right.

Section 57 was quite clearly meant to be used by the Supreme Court, the National Court and any other court designated by an Act of the Parliament to remedy breaches of human rights. That this is so is quite explicity stated in Ch V of the CPC Report. Pages 5/1/8 — 5/1/18 — 5/1/9 then explain the need for enforcement of these rights:

"On Balance, we have concluded that the human rights...