Special reference pursuant to Constitution, Section 19(1) Reference by the Bougainville Executive re Sections 89(2) and 91(4) (f) of the Bougainville Constitution (2020) SC1952

• Jurisdiction: Papua New Guinea
• Judge: Salika CJ, Kandakasi DCJ, Kirriwom J, Gavara-Nanu J, Cannings J
• Judgment Date: 29 May 2020
• Citation: (2020) SC1952
• Docket Number: SC REF No 2 of 2020
• Court: Supreme Court
• Year: 2020
• Judgement Number: SC1952

Full Title: SC REF No 2 of 2020; Special reference pursuant to Constitution, Section 19(1) Reference by the Bougainville Executive re Sections 89(2) and 91(4) (f) of the Bougainville Constitution (2020) SC1952

Supreme Court: Salika CJ, Kandakasi DCJ, Kirriwom J, Gavara-Nanu J, Cannings J

Judgment Delivered: 29 May 2020

SC1952

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 2 OF 2020

SPECIAL REFERENCE PURSUANT TO

CONSTITUTION, SECTION 19(1)

REFERENCE BY THE BOUGAINVILLE EXECUTIVE

RE SECTIONS 89(2) AND 91(4)(f)

OF THEBOUGAINVILLE CONSTITUTION

Waigani: Salika CJ, Kandakasi DCJ,

Kirriwom J, Gavara-Nanu J, Cannings J

2020: 7th, 29th May

CONSTITUTIONAL LAW – Basic Rights – National Constitution, s 50 (right to vote and stand for public office) –Bougainville Constitution, ss89(2) (election of President) and 91(4)(f) (qualifications and disqualifications from election as President) –whether laws that prevent a person being elected President on more than two occasions are inconsistent with s 50 of National Constitution– whether Bougainville Constitution, ss 89(2) and 91(4)(f), prohibit exercise of the right to be elected to elective public office or are a reasonable regulation of it.

The Bougainville Executive (the referrer) referred two questions of constitutional interpretation to the Supreme Court under s 19 of the National Constitution.The questions concern two provisions of the Bougainville Constitution, ss 89(2) and 91(4)(f), which provide that a person cannot be elected as President of the Autonomous Region of Bougainville on more than two occasions. The questions are whether those provisions are inconsistent with s 50(right to vote and stand for public office) of the National Constitution due to them preventing a person who has been President on two occasions being re-elected as President. Two persons were granted leave to appear as interveners in the proceedings: the Speaker of the Bougainville House of Representatives (first intervener) and the Attorney-General of Papua New Guinea (second intervener).

The referrer argued that ss 89(2) and 91(4)(f) of the Bougainville Constitution are inconsistent with s 50 of the National Constitution and should be declared to be unconstitutional, invalid and of no effect. The first intervener argued that the Court should decline to give an opinion as the question of operation of the BougainvilleConstitution should be left to the Bougainville House of Representatives to determine, and in the alternative argued that there was no inconsistency between ss 89(2) and 91(4)(f) of the Bougainville Constitution and s 50 of the National Constitution. The second intervener took no clear position.

Held:

(1) (Per Salika CJ, Kandakasi DCJ, Kirriwom J & Cannings J; Gavara-Nanu J deciding otherwise): Sections 89(2) and 91(4)(f) of the Bougainville Constitution are not inconsistent with s 50 of the National Constitution, and are not unconstitutional.

(2) (Per Salika CJ): The Supreme Court must not be seen to be derailing the efforts of the Bougainville people and stopping them to progress. Sections 89(2) and 91(4)(f) of the Bougainville Constitution are a reasonable regulation of the rights of all citizens under s 50 of the National Constitution, and are not unconstitutional.

(3) (Per Kandakasi DCJ): A person claiming a law is not “reasonably justified in a democratic society” must establish it with appropriate evidence. The referrer failed to establish that the restrictions imposed by ss 89(2) and 91(4)(f) of the Bougainville Constitution are unreasonable and not justified in a democratic society like Papua New Guinea’s.

(4) (Per Kirriwom J): The doctrine of separation of powers requires that law-making powers vest in the legislature. If the Bougainvilleans think that the Bougainville Constitution deprives them of voting for a person as president who is the right person for the job and they want to keep voting for that person to serve more than two terms, the Bougainville House of Representatives is the only forum in which the Bougainvillean laws should be changed. The Supreme Court is not the right forum in which to change the Bougainville Constitution.

(5) (Per Gavara-Nanu J: Sections 89(2) and 91(4)(f) of the Bougainville Constitution are an impermissible restriction of the rights of all citizens under s 50 of the National Constitution, and are unconstitutional.

(6) (Per Cannings J): the two-term limit imposed by ss 89(2) and 91(4)(f) of the Bougainville Constitution is a reasonably justifiable regulation of the rights of all PNG citizens under s 50(1) of the National Constitution.

(7) By 4:1 majority: both questions the subject of the Special Reference are answered No. Sections 89(2) and 91(4)(f) of the Bougainville Constitution are not unconstitutional.

Cases Cited

The following cases are cited in the judgment:

In re Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126

In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (2001) SC678

Namah v Pato (2016) SC1497

Re Alleged Brutal Treatment of Suspects (2014) N5512

Re Human Rights of Prisoners Sentenced to Death (2017) N6939

Re Release of Prisoners on Licence (2008) N3421

SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 176

SC Ref No 1 of 1984 Re Minimum Penalties Legislation [1984] PNGLR 314

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 1A of 1981, Re Motor Traffic Act [1982] PNGLR 122

SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214

SC Ref No 5 of 1992, Re Organic Law on National Elections [1992] PNGLR 114

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

Special Reference by the Morobe Provincial Executive (2005) SC785

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

The State v NTN Pty Ltd [1992] PNGLR 1

The State v Paul Pokolou (1983) N404

REFERENCE

This was the determination of a Special Reference under s 19 of the National Constitution.

Counsel

L R Henao & R Raka, for the Referrer, the Bougainville Executive

G J Sheppard & P Tabuchi, for the First Intervener, the Speaker of the Bougainville House of Representatives

T Tanuvasa, for the Second Intervener, the Attorney-General of

Papua New Guinea

29th May, 2020

1. SALIKA CJ: I have read the draft judgments of Kandakasi DCJ and Kirriwom J and Cannings J and agree with the reasons for the answers they arrived at.The greater issues relating to the Autonomous Region of Bougainville at this stage of Bougainville’s political development are not settled yet. A referendum was conducted in 2019 and a result announced. There are important processes of Bougainville’s aspirations for self-determination yet to be completed.

2. At this stage, the status of the Bougainville Constitution should be maintained, in my respectful view. This Court must not be seen to be derailing the efforts of the Bougainville people and stopping them to progress. Bougainville is part of PNG. PNG agreed for it to be granted autonomy. The People of Bougainville have observed and learnt from their experiences as Papua New Guineans,

3. They have also observed governments globally and made a conscious decision to have a presidential type of government. Is selecting a presidential type of government unconstitutional too? The referrer is not seeking to have the system of government chosen by Bougainville to be declared unconstitutional.

4. They made a considered decision for a presidential style of government, which is a different style of government from PNG. Under a presidential style of government, the entire population of Bougainville elects the President. In PNG, the Parliament elects the Prime Minister, and the Prime Minister can be replaced or removed by a vote of no confidence according to the relevant provisions of the Constitution. Bougainville has deliberately decided against the election of the President by its Parliament, and has also decided that a President can only serve two terms. There are good reasons for a very powerful person, namely the head of government of a country, to have two terms only, one of which is the corruptive nature of power. In my respectful opinion, a limit of two terms of service as President is reasonable.

5. I do not consider ss 89(2) and 91(4)(f) of the Bougainville Constitution to be inconsistent with s 50 of the National Constitution. My answer to both questions in this Special Reference, for the reasons given above and for the reasons articulated by Kandakasi DCJ and Kirriwom J and Cannings J, is No.

6. KANDAKASI DCJ: The Bougainville Executive Council has referred two identical constitutional questions pursuant to the combined provisions of ss 19 and 301 of the National Constitution and s 209(b) of the Bougainville Constitution. These provisions authorise the Bougainville Executive Council to refer and grants this Court the necessary...