Constitution In the matter of the Interpretation and Application of sections 37 and 57 Constitution and the constitutionality of the Claims By and Against the State Act, 1996 Constitution Claims By and Against the State Act, 1996

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ,Gavara Nanu J,Batari J,David J,Hartshorn J
• Judgment Date: 30 October 2023
• Neutral Citation: SC2483
• Citation: SC2483, 2023-10-30
• Counsel: Mr. L. Mamu, Mr. T Aisi and Mr. L. Giyomwanauri, for the Referrer,Mr. T. Tanuvasa and Mr. H. Wangi, for the Intervener
• Docket Number: SC REF 1 OF 2021 (IECMS)
• Hearing Date: 25 April 2023,30 October 2023
• Court: Supreme Court

SC2483

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF 1 OF 2021 (IECMS)

Special Reference Pursuant to Constitution Section 19

Special Reference by Leslie Mamu as the Public Solicitor of Papua New Guinea

In the matter of the Interpretation and Application of sections 37 and 57 Constitution and the constitutionality of the Claims By and Against the State Act, 1996

Waigani: Kandakasi DCJ, Gavara Nanu J, Batari J, David J and Hartshorn J

2023: 25^th April, 30^th October

SUPREME COURT SPECIAL REFERENCE — constitutional reference filed by public solicitor under s19 constitution — reference raises 26 questions arising out of two decisions of the Supreme Court — questions are claimed by the referrer to concern amongst others, the interpretation of sections in the Constitution concerned with Basic Rights and their enforcement and the Administration of Justice — questions referred categorized as nature of human rights in Papua New Guinea and how they are placed in relation to other common law and statutory rights — How long does a reasonable time mean under s.37(3) in relation to criminal trials — the constitutionality of the Claims By and Against the State Act, 1996 (Claims Act) and provisions therein — whether this Reference is an abuse of process? — Reference seeks to have this Court review two final decisions of the Supreme Court — is an improper use of the processes of the court — referrer seeks relief which the Court does not have the power to grant — a review of a final Supreme Court decision — reference filed is without merit and is an abuse of process — questions posed are vexatious — court declines to answer

Cases Cited:

Regina v. Abia Tambule and Ors [1974] PNGLR 250

Premdas v. The State [1979] PNGLR 329

Brown v. The State [1993] PNGLR 430

Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628

In re Constitution s.19(1) — Special Reference by Allan Marat; In re Constitution s.19(1) and 3(a) — Special Reference by the National Parliament (2012) SC1187 Paru Aihi v. Peter Isoaimo and Ors (2013) SC1276

Eremas Wartoto v. The State (2015) SC1411

Michael Wilson v. Clement Kuburam (2016) SC1489

Dekena v. Kuman (2018) SC1715

Jacob Sanga Kumb v. Dr Nicholas Mann and Anor (2018) SC1710

Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814

Kohu Morea v. The State (2020) SC1957

Special Reference by Leslie Mamu (2020) SC2091

Special Reference by the Honourable Davis Steven (2020) SC2041

State v. Nimbituo (2020) SC1974

State v. Siune (2021) SC2070

Independent State of Papua New Guinea v. Jim Wala Tamate (2021) SC213

Philip Kaman v. The State (2022) SC2329

Commander of Beon Correctional Institution v. Katherine Mal (2022) SC2186

Independent State of Papua New Guinea v. Uddin (2022) SC2312

Special Reference by the Honourable Davis Steven (2023) SC2344

Kaluwin v. Haiveta (2023) SC2384

Counsel:

Mr. L. Mamu, Mr. T Aisi and Mr. L. Giyomwanauri, for the Referrer

Mr. T. Tanuvasa and Mr. H. Wangi, for the Intervener

Public Solicitor: Lawyers for the Referrer

Solicitor General: Lawyers for the Intervener

30^th October 2023

1. Kandakasi DCJ: This is a constitutional reference filed by the Public Solicitor under s. 19 (1) of the Constitution. The reference raises 26 questions (“questions”) following two Supreme Court decisions, namely The State v. Nimbituo (2020) SC1974, per Kirriwom J (as he then was), Hartshorn and Kariko JJ and The State v. Siune (2021) SC2070, per Kandakasi DCJ, Thompson J (as she then was) and Berrigan JJ.

2. The above cases went to the Supreme Court out of two different National Court decisions. Those decisions upheld human rights applications under s. 57 of the Constitution with various reliefs which went against other equally important provisions of the Constitution and other written laws. The above decisions arrived at the same conclusion that human rights are not superior but are subject to the Constitution and other written laws.

The Questions Presented

3. The draft decision of my brother Judges, which I had the benefit of reading, correctly categorises the questions referred into three categories, which I rephrase as follows:

(a) Human rights under the Papua New Guinea (PNG) Constitution are superior to other common law and statutory rights.

(b) How long is a reasonable time under s.37 (3) of the Constitution in a criminal case?

(c) The Claim By and Against the State Act 1996 (State Claims Act) is unconstitutional.

Considerations of the law

4. The third category of questions are dependent on a yes or affirmative answer to the first category of questions. Hence, a discussion of the first category and a decision on that category of questions will apply to the third category. In view of that, it will not be necessary to deal with the third category of questions separately. It will rise or fall with the first category.

5. Turn then to the questions or issues I agree with their Honours that, this reference is clearly an abuse of the special constitutional reference process under s. 19 (1) of the Constitution for the reasons given by their Honours. It is also an abuse of process and the special privilege and or right given to the Public Solicitor under s. 19 (3) for an additional reason, which I will shortly give.

6. It is important for us to consider the kinds of situations in which each of the persons listed under s. 19 (3) of the Constitution are authorised to file constitutional references. The provisions relevantly read:

“19. Special references to the Supreme Court.

(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.

(3) The following authorities only are entitled to make application under Subsection (1):-

(a) the Parliament; and

(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c) the Law Officers of Papua New Guinea; and

(d) the Law Reform Commission; and

(e) the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and

(eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).”

7. The first thing I notice is that the list is restricted by using the word “only” before going on to list the authorities that are authorised. There is no room left for any court or anyone to extend the list to include any other authorities or person. Those on this list therefore need to carefully consider what is that they wish to go to the Supreme Court with, under this provision. This is necessary to ensure that the Supreme Court's limited resources are not wasted on frivolous and vexatious matters.

8. The answer to what kinds of cases should be referred to the Supreme Court by the authorities enumerated under s. 19 (3) is answered by s. 19 (1) of the Constitution. Section 19 (1) restricts the kinds of cases that can be brought to the Supreme Court by any of the authorities under s. 19 (3) to cases in which:

“any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.”

arises, and not otherwise.

9. Having regard to the relevant decisions of the Supreme Court on point and the provisions s. 19 (1), (2) and (3) as well as s. 18 (1) and (2) of the Constitution, three kinds of cases can be brought under these provisions. Injia CJ (as he then was) in his decision in In re Constitution Section 19(1) — Special reference by Allan Marat & In re Constitution Section 19(1) and 3(a) — Special reference by the National Parliament (2012) SC1187 identified the three categories and the effect of a decision made as follows:

“70. … there are three types of cases that may be brought under s19. An opinion given in any of those types of cases is a binding opinion. The first type is one that simply seeks an opinion as to the meaning of a provision of a Constitutional law, without its application to any particular actions of the legislature, executive or the judiciary….

71. The second type involves determination of questions as to interpretation and application of a constitutional law, to a law or proposed law. The third type are those cases that involve application of that determination of constitutional principle to the facts before the Court, if any, real or hypothetical, as the case may be.”

10. Section 19 (2) clearly states that all, interpretations, opinions, and applications given by the Supreme Court are binding. All persons concerned must thus, observe and act accordingly. It should necessarily follow that, the process available under s. 19 (1), is only for the interpretation and or application of a Constitutional provision that has not yet been considered, interpreted and or applied by the Supreme Court. Where that has already taken place, the relevant decisions of the Supreme Court are binding authorities. Consequently, they are not open for further argument or challenge except strictly in accordance with the principles which govern any departure from earlier decisions of the Supreme Court.

11. Thus, it should be clear that, before...