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
• Judge: Injia, CJ; Salika Dep.CJ; Sakora J; Kirriwom J & Gavara-Nanu J
• Judgment Date: 07 July 2010
• Citation: (2010) SC1057
• Judgement Number: SC1057

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

SC1057

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO. 11 of 2008

SPECIAL REFERENCE PURSUANT TO CONSTITUTION, SECTION 19.

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 -

AND:

THE REGISTRAR OF POLITICAL PARTIES

- First Intervener-

AND:

THE INTERGRITY 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-

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

2010: 7th July

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 s 19 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 s 50 (1)(e) (qualified right) of the Constitution is affected by amendments made to ss12, 111, 127 and 130 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 s 50 (1) (e) of the Constitution, they are inconsistent with the existing qualification under s 50 (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 s 50 right, OLIPPAC complies with the formal requirements of s12, s127 and s130A of the Constitution.

2. Specific questions:

· Question 7: Yes. OLIPPAC, s 57 is unconstitutional.

· Question 8: Yes. OLIPPAC, s 58 is unconstitutional.

· Question 9: Yes. OLIPPAC, s 59 is unconstitutional.

· Question 10: Yes. OLIPPAC, s 60 is unconstitutional.

· Question 11: Yes. OLIPPAC, s 61 is unconstitutional.

· Question 12: Yes. OLIPPAC, s 69 is unconstitutional.

· Question 13: Yes. OLIPPAC, s 70 is unconstitutional.

· Question 14: Yes. OLIPPAC, s 72 is unconstitutional.

· Question 15: Yes. OLIPPAC, s 73 (1)(b) is unconstitutional.

· Question 16: Yes. OLIPPAC, s 81 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, ss12 (4) and 114, only to the extent that they authorise an Organic Law to restrict and prohibit the exercise of a Member of Parliament’s right under s 50 (1)(e) of the Constitution.

· OLIPPAC, ss 65, 66, 67, 70 (3), 72 (2) and 73 (1) (a) & (2)

Cases Cited:

Papua New Guinea Cases

Enforcement of Rights Pursuant to Constitution, s 57 Application of Karingu [1988-89] PNGLR 276

Haiveta v Wingti (No 1) [1994] PNGLR 160

Iambakey Okuk v Gerald Sidney Fallscheer [1980] PNGLR 274

Isidore Kaseng v Rabbie Namaliu (No. 1) [1995] PNGLR 481

Kila Wari v Gabriel Ramoi and Another [1986] PNGLR 112

Kuberi Epi v Tony Farapo (1983) SC 247

Madaha Resena and Others v The State (Re Fisherman’s Island) [1991] PNGLR 174

SCOS No 2 of 2003; Re Election of Governor-General (No 1) [1995] PNGLR 481

SCR No. 1 of 1976; Rakatani Peter v South Pacific Brewery Ltd. [1976] PNGLR 537

SCR No. 1 of 1992: Re Constitutional Amendment No. 15 – Elections and Organic Law on National Elections (Amendment No 1) 1991 [1992] PNGLR 73

SCR No. 2 of 1981; Re Electoral Boundaries [1981] PNGLR 518

SCR No. 2 of 1982 Re Organic Law on National Elections (Amendment) Act of 1981 [1982] PNGLR 214

SCR No. 2 of 1985; Kevin Masive v Iambakey Okuk & Johhannes Kenderop [1985] PNGLR 263

SCR No. 2 of 1995; Reference by the Western Highlands Provincial Executive (1995) SC 486

SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151

SCR No. 3 of 2006; Fly River Provincial Executive (2007) SC 917

SCR No 4 of 1981; Re Petition of MT Somare [1981] PNGLR 265

SCR No. 4 of 1985; Omaro Garo v The Police [1985] PNGLR 320

SCR No. 4 of 1987 Special Reference by Central Provincial Government v NCDIC [1987] PNGLR 249

SC Rev. No. 5 of 1987 Re Central Bank Regulations [1987] PNGLR 433

Southern Highlands Provincial Government v Sir Michael Somare and the National Executive Council (2007) SC859

State v John Mogo Wonom [1975] PNGLR 311

The Chief Collector of Taxes v Blaisius 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 SC 1643

Keshavanada Bharati v State of Kerala AIR 1973 SC 146

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)

Counsel:

L Henao, for...