Reference pursuant to Constitution, Section 18 (1); In the Matter of Forestry Act 199; Reference by Ken Norae Mondiai, John Mavramantz, Francis Demo, Pastor Lala Amsing, Johannes Awep and Jimmy Sina; In the Matter of the Forestry Act 1991 and the Forestry (Timber Permits Validation) Act 2007 (2010) SC1087

• Jurisdiction: Papua New Guinea
• Citation: (2010) SC1087
• Date: 17 December 2010
• Docket Number: SCR NO. 7 OF 2008
• Court: Supreme Court
• Year: 2010

Full Title: SCR NO. 7 OF 2008; Reference pursuant to Constitution, Section 18 (1); In the Matter of Forestry Act 199; Reference by Ken Norae Mondiai, John Mavramantz, Francis Demo, Pastor Lala Amsing, Johannes Awep and Jimmy Sina; In the Matter of the Forestry Act 1991 and the Forestry (Timber Permits Validation) Act 2007 (2010) SC1087

Supreme Court: Injia, CJ, Salika DCJ, Sevua J, Kirriwom & Davani J

Judgment Delivered: 17 December 2010

CONSTITUTIONAL LAW—Constitutional Reference—Validity of Reference - Whether a Reference may be brought under s 18 (1) of the Constitution—Whether a private citizen may bring a Reference under s 18 (1)

Facts:

This is a Reference brought by private citizens under s18 (1) of the Constitution, seeking the Court’s opinion on the interpretation and application of various provisions of the Constitution to the Forestry Act 1991 and the Forestry (Timber Permits Validation) Act 2007.

Held (by majority decision with Davani J dissenting):

1. s18 (1) of the Constitution does not grant the Supreme Court jurisdiction to entertain a Constitutional Reference brought by a private citizen: Jim Kas, Governor of Madang (2001) SC670 followed.

2. s18 (1) of the Constitution gives jurisdiction to the Supreme Court to entertain a cause of action in a case which involves Constitutional issues, brought by a private citizen who has the necessary standing to bring the proceedings: Application of Jim Kas, Governor of Madang (2001) SC670 followed.

3. Pursuant to s11 and s184 (1) of the Constitution, to the extent that O4 r1 and Form 1 of the Supreme Court Rules 1984 allow a Reference to be filed by a private citizen under s 18(1) of the Constitution, those rules of court are inconsistent with s18 (1) and therefore invalid.

Davani J (dissenting):

4. A private citizen who has the necessary standing may bring a Constitutional Reference under s 18(1). Reference under s.18 (1) will be guided by rules as to how they should proceed. In the absence of rules, a Court on being satisfied that the referrer has locus standi and the Court has jurisdiction to hear the matter, should be allowed to proceed relying on O 4 r1 of the Supreme Court Rules and Agreed Issues for hearing and final determination.

5. In the absence of specific and clear rules as to how a s 18(1) Reference should proceed, that at the pre -trial directions hearing stages, if the directions Judge finds there to be no disputed facts, the Reference should be allowed to proceed to hearing

6. The Reference brought by private citizens in these proceedings is invalid and is dismissed.

Cases cited in the judgment:

Re Application by Anderson Agiru (2001) SC671; Re Jim Kas, Governor of Madang (2001) SC670; Application by Francis Gem to enforce Constitutional Rights (2010) SC1065; Andrew Trawen v Steven Pirika Kamma (2008) SC915; Bill Skate and Peter O'Neil v Jeffrey Nape, Speaker of Parliament (2004) SC754; Isidore Kaseng v Rabbie Namaliu (No 1) [1995] PNGLR 481; Re Validity of National Capital District Commission Amendment Acts (2001) SC678; Re s18(1) of the Constitution and Bill Skate [2002] PNGLR 678; Re Election of Governor–General (No 1) (2003) SC721; Re Election of Governor–General (No 3) (2004) SC752; Re Petition of MT Somare [1981] PNGLR 265; Re s18(1) of the Constitution and Bill Skate [2002] PNGLR 678; Special Reference by the Ombudsman Commission (2010) SC1027; Re 2006 Amendments to the Organic Law on Provincial Governments and Local-level Government (2010) SC1058; The Honourable John Momis & The Bougainville Provincial Government in Suspension v. The National Executive Council & The Right Honourable Bill Skate, Prime Minister, SC OS 1 of 1999 (Unnumbered and Unreported judgment of the Supreme Court dated 26 November 1999;

17th December, 2010

1. INJIA, CJ: The Referrers are customary forest resource owners who claim their interests are affected by the application of certain provisions of the Forestry Act 1991 and Constitution to the Forestry (Timber Permits Validation) Act 2007. They bring this Reference under s18 (1) of the Constitution, seeking the Supreme Court’s opinion on the interpretation and application of various provisions of the Constitution to those Acts of the Parliament. The Court is invited to find that certain provisions of those Acts are inconsistent or in conflict with certain provisions of the Constitution and declare them unconstitutional.

2. The questions in the Reference are as follows:

(a) Is the Forestry (Timber Permits Validation) Act 2007 unconstitutional and invalid for the reasons that it was enacted in breach of s114(1) of the Constitution?

(b) Is the Forestry (Timber permits Validation) Act 2007 unconstitutional and invalid for the reasons that its enactment is in breach of s38 and s53(1) of the Constitution?

(c) Is the Forestry (Timber Permits Validation) Act 2007 in breach of the National Goals and Directive Principles and a breach of a constitutional duty under Section 25(2) and (3) and its enactment and enforcement invalid for those reasons?

(d) If the Forestry (Timber Permits Validation) Act 2007 is not unconstitutional and therefore valid, is a permit or grant issued or made under the Forestry Act 1991 without a valid National Forest Plan or valid National Forest Inventory unlawful for the reasons that such permit or grant:-

(i) is harsh or oppressive;

(ii) is not warranted by, or is disproportionate to, the requirements of

the particular circumstances, or of the particular case; or

(iii) is otherwise not, in the particular circumstances, reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind

within the meaning of Section 41 of the Constitution?

(e) Is the Forestry Act 1991 unconstitutional and invalid for the reason that its enactment is in breach of Sections 38 and 53(1) of the Constitution?

3. The Reference is brought by private citizens named in the Reference and signed by Mrs T. G Nonggorr of Tiffany Nonggor Lawyers, in her capacity as “Lawyer for the Referrors”

4. At the hearing counsel for the first intervener objected to the competency of the Reference on two (2) grounds as follows:

(a) The Reference is inappropriately brought under s18 (1) of the Constitution. Even if a Reference could be brought under s18 (1), the Referrers lack standing to bring the Reference.

(b) If the Reference is not dismissed in its entirety, then certain paragraphs should be struck out for raising issues which are non justiciable: paragraphs 2 (a) & 3(a), (voting in Parliament); paragraphs 2 (1)(b) & 3 ( c ) (National Goals and Directive Principles); paragraph 3 (d) ( s 41 does not raise Constitutional issues).

5. Counsel for the first intervener also argued that the Reference is incompetent because it offends O 4 rule 1, Form 1 of the Supreme Court Rules 1983 (SCR) in that the Reference is not signed by the referrers.

6. It is agreed between the parties that those grounds of challenge raise a threshold issue which could determine the Reference if this Court were to uphold the application on those grounds. Counsel made submissions and we reserved our decision which we now deliver.

7. I deal with the ground of objection on the Court’s jurisdiction under s18 (1) of the Constitution, first. The issue for determination is whether s18 (1) grants the Supreme Court jurisdiction to entertain a Constitutional Reference brought by a private citizen. The same issue put differently, is whether s18(1) grants a right to a private citizen to bring a Constitutional Reference before the Supreme Court.

8. The second and fourth interveners support the first intervener’s application. The referrers oppose the application.

9. The third intervener conceded that the Reference was inappropriately brought by the referrers under s18 (1) but it sought leave for it to be substituted as the referrer and to be allowed to continue with the Reference.

10. In my view the answer to the question lies in the construction of s18 of the Constitution, which states:

Subdivision C.—Constitutional Interpretation.

18. Original interpretative jurisdiction of the Supreme Court.

(1) 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.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the...