SC REF NO. 11 of 2008; Special reference pursuant to Constitution, s19. In The Matter of the Organic Law on the Integrity of Political Parties and Candidates Reference by the Provincial Executive Council of the Fly River Provincial Government of Western Province (Referrer) v The Registrar of Political Parties (first intervener) and the Integrity of Political Parties Commission (second intervener) and Dr Allan Marat, MP, Attorney General (third intervener) and The Hon. Jeffrey Nape, MP; Speaker of the National Parliament (fourth intervener) and the National Parliament (fifth intervener) and The Hon. Francis Awesa, MP (sixth intervener) and The Hon. Bart Philemon, MP (seventh intervener) (2010) SC1057

• Jurisdiction: Papua New Guinea
• Citation: (2010) SC1057
• Date: 07 July 2010
• Court: Supreme Court
• Year: 2010

Full Title: SC REF NO. 11 of 2008; Special reference pursuant to Constitution, s19. In The Matter of the Organic Law on the Integrity of Political Parties and Candidates Reference by the Provincial Executive Council of the Fly River Provincial Government of Western Province (Referrer) v The Registrar of Political Parties (first intervener) and the Integrity of Political Parties Commission (second intervener) and Dr Allan Marat, MP, Attorney General (third intervener) and The Hon. Jeffrey Nape, MP; Speaker of the National Parliament (fourth intervener) and the National Parliament (fifth intervener) and The Hon. Francis Awesa, MP (sixth intervener) and The Hon. Bart Philemon, MP (seventh intervener) (2010) SC1057

Supreme Court: Injia, CJ; Salika Dep.CJ; Sakora J; Kirriwom J & Gavara-Nanu J

Judgment Delivered: 7 July 2010

CONSTITUTIONAL LAW - Validity of an Organic Law - Whether certain provisions of the Organic Law on Integrity of Political Parties and Candidates are inconsistent with certain provisions of the Constitution.

CONSTITUTIONAL LAW—Validity of amendments to certain provisions of the Constitution made to authorize the enactment of an Organic Law - Whether certain amendments of the Constitution are inconsistent with the basic structure of the Constitution.

Facts:

The Executive of the Fly River Provincial Government filed a special Reference under s19 of the Constitution seeking the Supreme Court’s opinion on the interpretation and application of various provisions of the Constitution and the Organic Law on the Integrity of Political Parties and Candidates (OLIPPAC).

Held:

1. General questions - Question 6 & 17:

(1) Except to the extent that s50 (1)(e) (qualified right) of the Constitution is affected by amendments made to s12, s111, s127 and s130 of the Constitution, those amendments are authorized by the Constitution.

(2) To the extent that those amendments of the Constitution restrict and prohibit the exercise of the right given to Members of Parliament by s50 (1) (e) of the Constitution, they are inconsistent with the existing qualification under s50 (2) and are therefore of no force and effect.

(3) Except to the extent that OLIPPAC provisions, the subject of this reference restrict the exercise of s50 right, OLIPPAC complies with the formal requirements of s12, s127 and s130A of the Constitution.

2. Specific questions:

• Question 7: Yes. OLIPPAC, s57 is unconstitutional.

• Question 8: Yes. OLIPPAC, s58 is unconstitutional.

• Question 9: Yes. OLIPPAC, s59 is unconstitutional.

• Question 10: Yes. OLIPPAC, s60 is unconstitutional.

• Question 11: Yes. OLIPPAC, s61 is unconstitutional.

• Question 12: Yes. OLIPPAC, s69 is unconstitutional.

• Question 13: Yes. OLIPPAC, s70 is unconstitutional.

• Question 14: Yes. OLIPPAC, s72 is unconstitutional.

• Question 15: Yes. OLIPPAC, s73 (1)(b) is unconstitutional.

• Question 16: Yes. OLIPPAC, s81 is unconstitutional.

3. The answers given to questions 6 to 17 also affect other provisions of the Constitution and OLIPPAC that are not mentioned in the Reference but are directly related to those provisions. The effect of the answers given to the questions in the Reference is that those provisions are also rendered invalid. Those provisions are as follows:

• Constitution, s12 (4) and s114, only to the extent that they authorise an Organic Law to restrict and prohibit the exercise of a Member of Parliament’s right under s50 (1)(e) of the Constitution.

• OLIPPAC, s65, s66, s67, s70 (3), s72 (2) and s73 (1) (a) & (2)

Cases Cited:

Papua New Guinea Cases

Enforcement of Rights Pursuant Constitution s57; Application by Karingu [1988–89] PNGLR 276; Haiveta v Wingti (No 1) [1994] PNGLR 160; Iambakey Okuk and The Independent State of Papua New Guinea v Gerald Sidney Fallscheer [1980] PNGLR 274; Isidore Kaseng v Rabbie Namaliu (No 1) [1995] PNGLR 481; Kila Wari v Gabriel Ramoi and Kingsford Dibela [1986] PNGLR 112; Kuberi Epi v Tony Farapo (1983) SC247; Madaha Resena v The Independent State of Papua New Guinea (Re Fisherman's Island) [1991] PNGLR 174; Isidore Kaseng v Rabbie Namaliu (No 1) [1995] PNGLR 481; Rakatani Peter v South Pacific Brewery Ltd [1976] PNGLR 537; Re Constitutional Amendment No 15—Elections and Organic Law on National Elections (Amendment No 1) Law 1991; Special Reference by the Ombudsman Commission under s19 of the Constitution [1992] PNGLR 73; SCR No. 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518; SCR No 2 of 1982; Re the Organic Law on National Elections (Amendment) Act 1981 (No 1) [1982] PNGLR 214; SCR No 2 of 1985; Masive v Okuk and Kenderop [1985] PNGLR 263; SCR No 2 of 1995; Reference by Western Highlands Provincial Executive (1995) SC486; SCR No 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151; In the Matter of s19 of the Constitution; Reference by Fly River Provincial Executive (2007) SC917; Re Petition of MT Somare [1981] PNGLR 265; Omaro Garo v The Police [1985] PNGLR 320; Central Provincial Government v NCDIC [1987] PNGLR 249; Re Central Banking (Foreign Exchange and Gold) Regulations (Ch138) [1987] PNGLR 433; In the Matter Pursuant to Section 18(1) of The Constitution, Southern Highlands Provincial Government v Sir Michael T Somare; Sir Matiabe Yuwi v Sir Michael T Somare (2007) SC854; The State v John Mogo Wonom [1975] PNGLR 311; Chief Collector of Taxes v Blasius Dilon [1990] PNGLR 414; The Ship "Federal Huron" v Ok Tedi Mining Ltd [1986] PNGLR 5; The State v NTN Pty Ltd and NBN Ltd [1992] PNGLR 1

Overseas cases

Aldred Case (1987 - 9) VP 1695-8; PP 498 (1989); Butadroka v Attorney General of Fiji (1990) FJHC 55; Edwards v AG Canada [1930] AC 124; Hunter v Southam [1984] 2 SCR 145; IC Golaknath v State of Punjap AIR 1967 SC1643; Keshavanada Bharati v State of Kerala AIR 1973 SC146; McGrath Case (1913) VP 151; (1914- 17) VP 181; Polyukhovich v The Commonwealth (199) 172 CLR 501; Reg. v Foster; Ex parte Eastern and Australian Steamships Co. Ltd. [1959] HCA 10; (1959) CLR 256; Sabaroche v Speaker of the House of Assembly & Anor [1999] I CHRL 79; Saijan Singh v State of Rajasthan (1965) 1 SCR 933; Shankiari Prasad v Union of India (1952) SCR 89; Tuckey Case (1987) VP 1985-87 1467-8

PNG Statutes and subordinate legislation referred to:

Constitution of the Independent State of Papua New Guinea; Constitutional Amendment No. 26; Organic Law on the Integrity of the Political Parties and Candidates 2003; Organic Law on the Duties and Responsibilities of Leadership; Organic Law on National and Local-Level Government Elections; Associations Incorporations Act (Ch.142); Criminal Code Act, (Ch.No. 262); Parliamentary Powers and Privileges Act (Chapter 24); Standing Orders of the National Parliament(Ch. No. 1);

PNG Books, articles, and reports referred to

Final Report of the Constitutional Planning Committee 1974

Overseas statutes, sub-ordinate legislations and Conventions referred to:

Commonwealth (Latimer House) Principles on the Three Branches of Government (1988); International Bill of Human Rights (1988); International Convention on Civil and Political Rights (1966); Standing Orders of the Commonwealth Parliament, Australia; The Standing Orders of the House of Commons in the United Kingdom; US Congress House Rule No. 3

Overseas Books, articles and reports referred to:

Erskine May’s Treatise on The Law, Privileges, Proceedings and Usage of Parliament, 18th ed. Butterworths, London, (1971); Joel Asher, Australian Protocol and Procedures, (2nd ed), Angus & Robertson, Melbourne, (1988); J. R. Odgers Australian Senate Practice (4th ed), Australian Government Publishing Service, Canberra (1972); P.S. Pachauri, The Law of Parliamentary Privilege in UK and India, Oceana Publications, New Delhi (1970); Sir Barnet Cocks, Erkine May’s Parliamentary Practices (18th ed.), Butterworths, London (1971); Sir Ivor Jennings, Parliament, (2nd ed) Cambridge University Press, London (1969); Wikipedia Encyclopedia; Y.P Ghai & J.P.W.B Mac Auslan, Public Law and Political Change in Kenya. A Study of the Legal Framework of Governments from Colonial Times to the Present, Oxford University Press, London (1970)

7th July, 2010

1. BY THE COURT: This is a Reference by the Executive of the Fly River Provincial Government, an authority entitled to bring this Reference under s19(3)(eb) of the Constitution. The reference seeks an opinion on questions relating to interpretation or application of various provisions of the Constitution and various provisions of the Organic Law on the Integrity of the...