Titi Christian v Rabbie Namaliu and The Independent State of Papua New Guinea (1995) OS No 2 of 1995

• Jurisdiction: Papua New Guinea
• Judge: Sevua J:
• Judgment Date: 18 July 1996
• Court: Supreme Court

Full Title: Titi Christian v Rabbie Namaliu and The Independent State of Papua New Guinea (1995) OS No 2 of 1995

Supreme Court: Amet CJ, Kapi DCJ, Los J, Salika J, Doherty J, Andrew J, Sevua J

Judgment Delivered: 18 July 1996

1 Res Judicata—Issue estoppel—State decisis—Supreme Court—overruling of earlier decisions

2 Validity of Constitutional Amendment No 16—Provincial Governments and Local–level Governments and Organic Law on Provincial Governments and Local–level Governments

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Amet CJ:

This is an application by Titi Christian the former Premier of the Morobe Provincial Government, pursuant to s18(1) of the Constitution, seeking interpretation of several provisions of the Constitution and consequential declarations on the basis that two constitutional laws enacted by Parliament are unconstitutional and invalid.

Chronology of historical facts

On 27 June 1995 the National Parliament enacted the following constitutional laws:

(a) Constitutional Amendment No 16—Provincial Governments and Local–level Governments 1995. (Constitutional Amendment)

(b) Organic Law on Provincial Governments and Local–level Governments 1995. (Organic Law).

The Constitutional Amendment No 16—Provincial Governments and Local–level Governments 1995 repealed and replaced Part VIA of the Constitution that provided for Provincial Governments and Local–level Governments. The Organic Law on Provincial Governments and Local–level Governments 1995 consequently also repealed and replaced the Organic Law on Provincial Governments.

Part VI Division 3 of the Organic Law on Provincial Governments and Local–level Governments 1995 provided for Interim Savings and Transitional Arrangements. S122 thereunder abolished all previously constituted Provincial Governments under the repealed Organic Law on Provincial Governments. S123 established in each province an Interim Provincial Government, the composition of which was established by s125 to include: (a) all members of the National Parliament from that province; and (b) the person occupying the office of Premier in the previous Provincial Government. S125(5) provided that the Premier of the previous Provincial Government shall become the interim Deputy Governor of the Province and the interim Deputy Chairman of the Interim Provincial Executive Council unless he decides not to be a member within 21 days from the date of the establishment of the Interim Provincial Assembly.

The constitutional laws were certified by the Speaker of the National Parliament on 19 July 1995. On 11 July 1995 Isidore Kaseng, the then Premier of the Western Province filed an application pursuant to s18(1) of the Constitution seeking the following declarations:

(1) that the Constitutional Amendment (Provincial Governments and Local–level Governments) Law 1995) enacted by the National Parliament of Papua New Guinea on 27 June 1995 is unconstitutional and null and void;

(2) that the Organic Law on Provincial Governments and Local–level Governments 1995 enacted by the National Parliament of Papua New Guinea on 27 June 1995 is unconstitutional and null and void;

(3) that the other laws purportedly passed under the Organic Law on Provincial Governments and Local–level Governments 1995 be declared invalid. These include:

(i) Local–level Governments System (Interim and Transitional Arrangements) Law 1995;

(ii) Provincial Governments and Local–level Governments (Consequential Amendment) Law 1995;

(iii) Provincial Governments and Local–level Governments (Consequential) (Repealed) Law 1995;

(iv) National Capital District (Amendment) Law 1995.

These declarations were sought on the following grounds:

(1) That the Constitutional Amendment (Provincial Governments and Local–Level Governments) Law 1995 was not passed in accordance with the requirements of the provisions of s14 of the Constitution of Papua New Guinea in that:

(a) There was no debate on the merits of the proposed law;

(b) The gazetted proposed law was circulated to the members of Parliament less than one month before the proposed law was formally introduced into the Parliament on 28 March 1995.

(2) That the Organic Law on Provincial Governments and Local–level Governments Law 1995 was not passed and or enacted in accordance with the requirements of s12 and s14 of the Constitution of Papua New Guinea in that:

(a) The Organic Law on Provincial Governments and Local–level Governments 1995 is not an "Organic Law [that is] expressly authorised by [the] Constitution" within the meaning of s12(1)(a) of the Constitution. That is, the Organic Law on Provincial Governments and Local–level Governments 1995 was purportedly passed pursuant to s187B and s187C of the Constitutional Amendment (Provincial Governments and Local–Level Governments Law) 1995 which was at the time a proposed law or still are (b) and not yet constitutional laws.

(b) There was no debate on the merits of the proposed law contrary to s14 of the Constitution.

(c) The gazetted proposed law was circulated to the members of Parliament less than one month before the proposed law was formerly introduced into the Parliament on 28 March 1995 contrary to the mandatory requirements of s14 of the Constitution.

That application was ruled upon by this Court on 20 September 1995 in Isidore Kaseng v Rabbie Namaliu and The Independent State of Papua New Guinea (No 1) [1995] PNGLR 481. The Court by a majority of three to two ruled that the amendments to the Constitution and the Organic Law on Provincial Governments and Local–level Governments 1995 were validly enacted and were not unconstitutional. By a majority of four to one the Court also held that the requirement by s14 of the Constitution, that circulation of proposed amendments to the Constitution and the Organic Laws to members of the Parliament be made not less than one month prior to their introduction into the Parliament is mandatory, but s14 was not fully in effect as the Standing Orders for the manner of circulation were not in existence as required and that in these circumstances s14 could only be directory. There had been sufficient compliance with s14 in these circumstances although circulation had been less than one month. Thirdly, the Court by a majority of four to one also ruled that the constitutional requirements that there be opportunity to debate a proposed law to alter the Constitution and an Organic Law (s14(2)) had been complied with and the amendments were not unconstitutional. And finally the Court by a majority of three to two held that the Constitutional requirement by s12(1)(a) that an Organic Law may be made by the Parliament that is for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by the Constitution, had been complied with, as the amendment to the Constitution had been passed which had expressly authorised the Organic Law at the time that it was made.

The unsuccessful applicant Isidore Kaseng, not being satisfied with the Supreme Court's ruling filed another application purportedly pursuant to Sch2.9(1) of the Constitution seeking a review by the Supreme Court of that earlier ruling. The basis for the second application was pleaded in the following terms:

(1) Such a small split decision of the Supreme Court by three to two still leaves the interpretation ascribed to the Constitution by the Court in uncertainty and doubt. As such, the applicant seeks a differently constituted Supreme Court to review the decision to have the issues raised conclusively determined and put to rest.

(2) The applicant, Isidore Kaseng seeks to have the decision reviewed, and possibly...