Re the Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214; (the Election Deposit case)

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Kapi J
• Judgment Date: 05 March 1982
• Court: Supreme Court
• Docket Number: Supreme Court Reference No 2 of 1982 (No 1)
• Judgement Number: SC222

Full Title: Supreme Court Reference No 2 of 1982 (No 1); Re the Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214; (the Election Deposit case)

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

Judgment Delivered: 5 March 1982

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SUPREME COURT REFERENCE NO. 2 OF 1982 IN THE MATTER OF THE CONSTITUTION 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 S. 19 OF THE CONSTITUTION

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Kapi JJ

3-5 March 1982

5 April 1982

CONSTITUTIONAL LAW — Organic laws — Validity — Amendment of — Validity of amendment — Manner and form requirements — Constitution s. 12 (3) Infra p. 218.1, s. 14Infra p. 220.2 — Organic Law on National Elections (Amendment) Act 1981.

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

CONSTITUTIONAL LAW — Constitutional references — Onus of proof on.

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

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, s. 50 (1) Infra p. 224.3 and (2) Infra p. 225.4.

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, s. 50 (1) Infra p. 224.5 and (2) Infra p. 225.6.

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 s. 50 (2) Infra p. 225.7.

STATUTES — Validity — Manner and form — Organic laws — Amendment Act — Validity of amendment — Organic Law on National Elections (Amendment) Act 1981 — Constitution, s. 12 (3) Infra p. 218.8, s. 14Infra p. 220.9.

STATUTES — Interpretation — "Subject to section (x) " — Words operative only where conflict — Constitution, s. 14 (1) Infra p. 220.10.

On a reference under s. 19 of the Constitution, as to the validity of an Act of Parliament.

Held

(1) An Organic Law of the type mentioned in s. 12 (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 s. 14 of the Constitution.

(2) The Organic Law on National Elections (Amendment) Act 1981 which was not made in the manner and form required by s. 14 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 s. 50 (1) of the Constitution.

(5) The exercise of rights under s. 50 (1) of the Constitution, may be restricted but cannot be prohibited by a regulating law under s. 50 (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 s. 50 (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 s. 19 of the Constitution:

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

(b) (Per Kearney Dep. C.J.) 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 C.J. and Kapi J.) The words "subject to sections 12 and 15 (3) " when used in s. 14 (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] P.N.G.L.R. 531 followed.

Cases Cited

A.-G. for Alberta v. A.G. for Canada [1939] A.C. 117.

A.-G. for Ontario v. A.-G. for the Dominion [1896] A.C. 348.

Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1.

Boardman v. Duddington (1959) 104 C.L.R. 456.

Brajnandan Sharma v. The State of Bihar A.I.R. (37) 1950. Patna 322.

Breen v. Sneddon (1961) 106 C.L.R. 406.

Cheranci v. Cheranci (1960) N.R.N.L.R. 24.

Clark (C. & J.) Ltd. v. Inland Revenue Commissioners [1973] 2 All E.R. 513.

Commonwealth Freighters Pty. Ltd. v. Sneddon (1959) 102 C.L.R. 280.

Dr. Chike Oke v. D.P.P. (1961) Unreported F.S.C. 56 referred to in Nwabueze Constitutional Law of the Nigerian Republic, p. 396.

Ffrost v. Stevenson (1937) 58 C.L.R. 528.

Madras, The State of v. V. G. Row A.I.R. (1952) S.C. 196.

McCulloch v. Maryland (1819) 4 Wheat. 316; 4 L. Ed. 579.

Michael Ayakamp v. Guringng B. [1981] P.N.G.L.R. 531.

Muller v. Oregon (1908) 208 U.S. 412; 52 L. Ed. 551.

Saraswati Industrial Syndicate Ltd. v. Union of India A.I.R. (1972) Delhi 159.

Smith v. London Transport Executive [1951] A.C. 555.

S.C.R. No. 4 of 1980; Re petition of M. T. Somare (No. 2) [1982] P.N.G.L.R. 65.

S.C.R. No. 1 of 1982; Re Bouraga [1982] P.N.G.L.R. 178.

Uebergang v. Wheat Board (1980) 32 A.L.R. 1.

Uganda v. Commissioner of Prisons; Ex parte Matobu (1966) E.A.L.R. 514.

Zorach v. Clauson (1952) 343 U.S. 306; 96 L. Ed. 954.

Reference

This was a reference under s. 19 of the Constitution, by the Ombudsman Commission of three questions (see pp. 217-218 of reasons for judgment of Kidu C.J. hereunder) relating to the validity of the Organic Law on National Elections (Amendment) Act 1981. On 5th March, 1982, the Court held that the Act was invalid (see first judgment hereunder) and undertook to deliver full reasons later, (see p. 217).

Counsel

P. Donigi, to argue the affirmative case.

C. Maino-Aoae, (Principal Legal Adviser) intervening, to argue the negative case as amicus curiae.

Cur. adv. vult.

5 March 1982

KIDU CJ KEARNEY DCJ GREVILLE SMITH ANDREW KAPI JJ: The Ombudsman Commission seeks an advisory opinion from this Court under the provisions of the Constitution, s. 19 (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 24th November, 1981. The Act amends s. 86 (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, s. 50, 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, s. 55, which provides for all citizens to have the same rights. The arguments on these questions have been wide-ranging, require careful consideration, and cannot be resolved quickly.

The third question is whether the Act is invalid because it was not made in the manner and form which the Constitution requires. Here the argument has been much more confined, and the answer is, in the opinion of all the members of the court, very...