In the Matter of the Constiution of Papua New Guinea and In the Matter of the Organic Law on National Elections (Amendment) Act 1981 and In the Matter of a Special Reference by the Ombudsman Commission under s19 of the Constitution; Re the Election Deposit case [1982] PNGLR 214

• Jurisdiction: Papua New Guinea
• Citation: [1982] PNGLR 214
• Date: 05 March 1982
• Docket Number: Supreme Court Reference No 2 of 1982 (No 1)
• Court: Supreme Court
• Year: 1982

Full Title: Supreme Court Reference No 2 of 1982 (No 1); In the Matter of the Constiution of Papua New Guinea and In the Matter of the Organic Law on National Elections (Amendment) Act 1981 and In the Matter of a Special Reference by the Ombudsman Commission under s19 of the Constitution; Re the Election Deposit case [1982] PNGLR 214

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

Judgment Delivered: 5 March 1982 and 5 April 1982

1 Constitutional law—organic laws—procedure for amendment—not followed for Organic Law on National Elections (Amendment) Act 1981—a nullity—reference by the Ombudsman Commission under Constitution s19

2 CONSTITUTIONAL LAW—Organic laws—Validity—Amendment of—Validity of amendment—Manner and form requirements—Constitution s12(3), s14—Organic Law on National Elections (Amendment) Act 1981.

3 CONSTITUTIONAL LAW—Constitutional references—Evidence—Matters of common knowledge—Judicial notice of—Presentation of in open court.

4 CONSTITUTIONAL LAW—Constitutional references—Onus of proof on.

5 PRACTICE AND PROCEDURE—Onus of proof—Constitutional references on.

6 PARLIAMENT—Elections—Validity of legislation regulating—Candidate for election required to deposit K1,000—Denial of "reasonable opportunity" to stand for election—Not "reasonably justifiable"—Constitution, s50(1) and (2).

7 CONSTITUTIONAL LAW—Special rights of citizens—Right to vote and stand for election—Regulation of—Rights capable of restriction but not prohibition—Whether regulation "reasonably justifiable"—Standard of proof—Objective—Constitution, s50(1) and (2).

8 STATUTES—Validity—Whether "reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind"—Standard of proof—Objective—Constitution s50(2).

9 STATUTES—Validity—Manner and form—Organic laws—Amendment Act—Validity of amendment—Organic Law on National Elections (Amendment) Act 1981—Constitution, s12(3), s14.

10 STATUTES—Interpretation—"Subject to section (x)"—Words operative only where conflict—Constitution, s14(1).

On a reference under s19 of the Constitution, as to the validity of an Act of Parliament.

Held:

(1) An Organic Law of the type mentioned in s12(3) of the Constitution may be amended by a simple majority vote; but in all other respects an amendment to such an Organic Law must conform to the constitutional requirements for amending Organic Laws contained in s14 of the Constitution.

(2) The Organic Law on National Elections (Amendment) Act 1981 which was not made in the manner and form required by s14 of the Constitution, is accordingly, invalid.

(3) In constitutional cases the Court may take judicial notice of matters of common knowledge. Materials relevant to the matters of which the Court is asked to take such notice should be presented in open court as part of the brief.

(4) The Organic Law on National Elections (Amendment) Act 1981, by requiring a candidate for election to Parliament to validate his or her nomination with a deposit of K1,000 denies at this time to a majority of eligible citizens their "reasonable opportunity" to stand for election to Parliament, in terms of s50(1) of the Constitution.

(5) The exercise of rights under s50(1) of the Constitution, may be restricted but cannot be prohibited by a regulating law under s50(2), which is "reasonably justifiable for the rights and dignity of mankind".

(6) In deciding whether legislation is "reasonably justifiable" under the Constitution, the test is objective, in terms of the reasonable man.

(7) The Organic Law on National Elections (Amendment) Act 1981, by requiring a candidate for election to Parliament to validate his or her nomination with a deposit of K1,000 is not a law which is, at this time, "reasonably justifiable" in terms of s50(2) of the Constitution, in view of the manifest emphasis in the Constitution, on free and equal participation by citizens in the election process.

(8) As to the onus of proof in a reference under s19 of the Constitution;

(a) (Per Kidu CJ, Andrew J agreeing) The question of onus of proof does not arise.

(b) (Per Kearney DCJ) A referring authority alleging invalidity of an Act, in general, bears the onus of proof.

(c) (Per Kapi J) A party who alleges invalidity or unconstitutionality of an Act must show a prima facie case of infringement of his right; the party who relies on the validity or constitutionality of the law then bears the onus of proving that the law is within the limitations provided by the Constitution.

(9) (Per Kidu CJ and Kapi J) The words "subject to s12 and s15(3)" when used in s14(1) of the Constitution merely subject the provisions of the subject sections to the provisions of the master section; where there is no conflict the phrase does nothing; if there is conflict, the phrase shows which is to prevail.

Michael Ayakamp v Guringng B [1981] PNGLR 531 followed.

A–G for Alberta v A–G for Canada [1939] AC 117, A–G for Ontario v A–G for the Dominion [1896] AC 348, Australian Communist Party v Commonwealth (1951) 83 CLR 1, Boardman v Duddington (1959) 104 CLR 456, Brajnandan Sharma v The State of Bihar AIR (37) 1950, Patna 322, Breen v Sneddon (1961) 106 CLR 406, Cheranci v Cheranci [1960] NRNLR 24, C & J Clark Ltd v Inland Revenue Commissioners [1973] 2 All ER 513, Commonwealth Freighters Pty Ltd v Sneddon (1959) 102 CLR 280, Dr Chike Oke v DPP (1961) Unreported FSC 56 referred to in Nwabueze Constitutional Law of the Nigerian Republic, p 396, Ffrost v Stevenson (1937) 58 CLR 528, The State of Madras v VG Row (1952) AIR SC196, McCulloch v Maryland (1819) 4 Wheat 316; 4 L Ed 579, Michael Ayakamp v Guringng B [1981] PNGLR 531, Muller v Oregon (1908) 208 US 412; 52 L Ed 551, Saraswati Industrial Syndicate Ltd v Union of India AIR (1972) Delhi 159, Smith v London Transport Executive [1951] AC 555, SCR No 4 of 1980; Re Petition of MT Somare (No 2) [1982] PNGLR 65, SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178, Uebergang v Wheat Board (1980) 32 ALR 1, Uganda v Commissioner of Prisons; Ex parte Matobu [1966] EALR 514 and Zorach v Clauson (1952) 343 US 306; 96 L Ed 954 referred to

Reference.

This was a reference under s19 of the Constitution, by the Ombudsman Commission of three questions (see pp 217–218 of reasons for judgment of Kidu CJ hereunder) relating to the validity of the Organic Law on National Elections (Amendment) Act 1981. On 5 March 1982, the Court held that the Act was invalid (see first judgment hereunder) and undertook to deliver full reasons later, (see second judgment).

___________________________

5 March 1982

By the Court: The Ombudsman Commission seeks an advisory opinion from this Court under the provisions of the Constitution, s19(3), whether a certain law recently made by the National Parliament is valid under the Constitution.

The law in question is Act No 46 of 1981; its short title is "Organic Law on National Elections (Amendment) Act 1981". The National Parliament made this law on 24 November 1981. The Act amends s86(c) of the Organic Law on National Elections. It has the effect that a candidate for election to the National Parliament must deposit K1,000. Previously the deposit required was K100.

The Ombudsman Commission has raised three questions, each one of which queries the validity of this Act for a different reason. We have heard argument from counsel for the Ombudsman Commission, the Principal Legal Adviser, and counsel for the National Parliament over the last three days.

One question queries whether the Act infringes the special right of citizens under the Constitution, s50, to stand for elective public office, by denying them a reasonable opportunity to stand. The second question queries whether the Act discriminates amongst citizens on the basis of wealth, amounts to denying them an equal right to stand for Parliament, and is therefore contrary to the Constitution...