In Re an application Pursuant to Constitution, Section 18(1) Application by Apeo Fuata Sione

• Jurisdiction: Papua New Guinea
• Court: Supreme Court
• Judge: Salika CJ,Kandakasi DCJ,Cannings J,Hartshorn J,Makail J
• Judgment Date: 06 January 2025
• Neutral Citation: SC2679
• Citation: SC2679, 2025-08-13
• Docket Number: SCCA NO 3 OF 2023
• Date: 06 January 2025
• Counsel: R M Simbil for the applicant,Counsel,G Nindil & S Ako for the intervener

SC2679

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCCA NO 3 OF 2023

In the Matter of an application Pursuant to Constitution, Section 18(1)

Application by Apeo Fuata Sione

WAIGANI: Salika CJ, Kandakasi DCJ, Cannings J, Hartshorn J, Makail J

18 December 2024; 6 January 2025

CONSTITUTIONAL LAW — BASIC RIGHTS — Constitution, s 50 (right to vote and stand for public office) — whether amendments to s 55 (persons who have resigned from the public service to become candidates at elections) of the Public Services (Management) Act 1995 are valid — whether laws amending s 55 were regulating the exercise of rights in s 50(1) of the Constitution and were reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind — Constitution, s 50(2).

PRACTICE & PROCEDURE — constitutional applications and references — burden of proof of invalidity of a law — whether laws amending Public Services (Management) Act are laws that regulate or restrict the exercise of rights in s 50(1) of the Constitution — whether a law regulating or restricting exercise of human rights has to meet requirements of s 38 of the Constitution.

The applicant sought declarations that two amendments to s 55 of the Public Services (Management) Act 1995 are unconstitutional as they unlawfully restrict the right of officers of the National Public Service under s 50(1)(d) of the Constitution to stand for elective public office. Section 55 in its original form gave officers who resigned to become a candidate at an election and failed to be elected, a right to be reappointed to the Public Service. The first amendment to s 55, made by the Public Services (Management) (Amendment) Act No 5 of 2020, removed the right of reappointment and replaced it with a right to apply for reappointment. The second amendment to s 55, made by the Public Services (Management) (Amendment) Act No 11 of 2021, qualified the right to apply for reappointment by providing that the officer may apply for reappointment after a period of five years from the date of the election they contested in. The applicant argued that the first amendment was made by a law that failed to comply with the manner and form requirements of s 38 (general qualifications on qualified rights) of the Constitution, and was invalid for that reason alone. He argued that the law by which the second amendment was made came closer to complying with the manner and form requirements of s 38 but gave insufficient reasons for the restriction on s 50 constitutional rights that it was imposing and therefore failed to comply with s 38, and was not a law that was reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind. The intervener, the Attorney-General, argued that both amendments were necessary to avoid politicisation of the Public Service and were reasonably justifiable and did not prohibit the exercise of the right of officers of the Public Service to be elected to elective public office.

Held:

(1) Laws which regulate or restrict the exercise of rights under s 50(1) of the Constitution do not have to comply with s 38 of the Constitution but must in accordance with s 50(2) be reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.

(2) The failure of the first amendment to comply with s 38 of the Constitution was inconsequential and its removal of the right of an officer who resigned to contest an election and was unsuccessful to be reappointed was reasonably justifiable. The first amendment was a valid regulation of the exercise of the right to be elected to elective public office.

(3) By requiring that an officer who resigned to contest an election and was unsuccessful wait five years after the election to apply to be reappointed to the Public Service, the second amendment was imposing an unwarranted and substantial disincentive to officers considering contesting an election which worked against the full and free exercise of the right of citizens to be elected to elective public office and was not reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind. The second amendment imposed an impermissible restriction on the exercise of the right conferred by s 50(1)(d) of the Constitution and was unconstitutional.

(4) Declared: the first amendment was valid; the second amendment was invalid.

Cases cited

Application by Hon Bill Skate MP (2001) SC678

Danaya v Wobiro [2013] 2 PNGLR 87

Namah v Pato (2016) SC1497

Premdas v The State [1979] PNGLR 329

Re Petition of M T Somare [1982] PNGLR 65

SC Ref No 1 of 1986, Re Vagrancy Act [1988] PNGLR 1

SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319

SC Ref No 1 of 2024, Reference by National Court re Section 21(2) of the Cybercrime Code Act (2024) SC2608

SC Ref No 2 of 1984, Re New Ireland Provincial Constitution [1984] PNGLR 81

SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944

SC Ref No 2 of 2020, Reference by Bougainville Executive Re ss 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952

SC Ref No 6 of 1984, Reference by National Court re Provocation & Summary Offences Act 1977 [1985] PNGLR 31

SC Ref Nos 1 & 2 of 2012, Re Prime Minister and National Executive Council Act Amendments [2012] 1 PNGLR 74

Shaw v Commonwealth of Australia [1963] PNGLR 119

The State v NTN Pty Ltd [1992] PNGLR 1

Counsel

R M Simbil for the applicant

G Nindil & S Ako for the intervener

Lawyers for the applicant: R M Simbil

Lawyer for the intervener: Solicitor-General

1. BY THE COURT: The applicant Apeo Fuata Sione is Chairman of the Public Services Commission. He has been declared to have standing to make an application under s 18(1) of the Constitution for declarations that two amendments to s 55 of the Public Services (Management) Act 1995 are unconstitutional as they unlawfully restrict the right under s 50(1)(d) of the Constitution of officers of the National Public Service to stand for elective public office.

2. Section 55 in its original form gave officers who resigned to become a candidate at an election and failed to be elected, a right to be reappointed to the Public Service. The first amendment to s 55, made by the Public Services (Management) (Amendment) Act No 5 of 2020, removed the right of reappointment and replaced it with a right to apply for reappointment. The second amendment to s 55, made by the Public Services (Management) (Amendment) Act No 11 of 2021, qualified the right to apply for reappointment by providing that the officer may apply for reappointment after a period of five years from the date of the election they contested in.

3. The applicant argues that the first amendment was made by a law that failed to comply with the manner and form requirements of s 38 (general qualifications on qualified rights) of the Constitution, and was invalid for that reason alone.

4. He argues that the law by which the second amendment was made came closer to complying with the manner and form requirements of s 38 but gave insufficient reasons for the restriction on s 50 constitutional rights that it was imposing and therefore failed to comply with s 38, and was not a law that was reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.

5. The Attorney-General, the Honourable Pila Niningi MP, has been granted leave to intervene in the proceedings. He argues that both amendments are necessary to avoid politicisation of the Public Service and are reasonably justifiable and do not prohibit the exercise of the right of officers of the Public Service to be elected to elective public office.

SECTION 50 OF THE CONSTITUTION

6. Section 50 (right to vote and stand for public office) is one of the human rights provisions contained in Division III.3 (Basic Rights) of the Constitution. It states:

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

7. Like all the human rights provisions in the Constitution (including those conferring fundamental rights, viz the right to life (s 35), the right to freedom from inhuman treatment (s 36) and the right to full protection of the law (s 37), s 50 does not confer absolute rights.

8. Section 50 confers on certain persons, certain rights, and provides for limitations on the exercise of those rights.

9. The rights conferred by s 50 are only enjoyed by persons who have all the following characteristics (prescribed by ss 50(1)(a), (b) and (c)):

• is a PNG citizen;

• is of full capacity (ie he or she is not of unsound mind, as per Schedule 1.2(1) of the Constitution);

• has reached voting age (which is 18 years of age, per s 126(3) (elections) of the Constitution);

• is not under sentence of death;

• is not under a sentence of imprisonment for a period of more...