Papua New Guinea Law Reports - 1982
[1982] PNGLR 65
SC220
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 4 OF 1980 (NO. 2) IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA
AND IN THE MATTER OF A PETITION BY THE RIGHT HONOURABLE MICHAEL THOMAS SOMARE, UNDER S. 18(1) OF THE CONSTITUTION.
Waigani
Kidu CJ Kearney DCJ Greville Smith Kapi Miles JJ
29-30 September 1981
1 October 1981
1 March 1982
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Parliamentary resolutions - Validity of - Act of Parliament - Validity of - Defence forces - Committal of troops overseas - “International obligation” - Constitution, ss. 202, 205, 206(1) - Defence Force (Presence Abroad) Act 1980.
DEFENCE - Defence forces - Committal of troops overseas - Parliamentary resolution - Validity of - Validity of Act - “International obligation” - Constitution, ss. 202, 205, 206(1) - Defence Force (Presence Abroad) Act 1980.
In proceedings by way of petition the petitioner ultimately, in effect, sought the following rulings in relation to a resolution by the National Parliament on 6th August, 1980, made under s. 205(2)(b) of the Constitution, authorizing and approving the committal of troops forthwith to Vanuatu for peace-keeping purposes:
(a)      That s. 205(2) of the Constitution merely declares the procedure to be followed if and when the National Executive Council finds it necessary to commit troops abroad;
(b)      That s. 202 of the Constitution exhaustively specifies the functions of the defence force, and leaves no room for the committal of troops to execute functions other than those so specified;
(c)      That the term “international obligations” in s. 202(b) of the Constitution means international obligations recognized by international law;
and accordingly
(d)      That, because no relevant international obligation existed as required by s. 202(b) of the Constitution the authorization and approval by the National Parliament on 6th August, 1980, for the committal of troops to Vanuatu was unconstitutional, null and void.
The petitioner ultimately in effect also sought the following rulings in relation to the Defence Force (Presence Abroad) Act 1980:
(e)      That the Act envisaged by s. 206(1) of the Constitution should outline and establish the legal basis of the matters which should be negotiated into an agreement between Papua New Guinea and any other country; and as the Defence Force (Presence Abroad) Act 1980 fails to do so, it is unconstitutional, null and void;
(f)      That s. 1 of the Defence Force (Presence Abroad) Act 1980 gives the National Executive Council authority to commit troops outside the country for purposes other than those specified in s. 202 of the Constitution and, in doing so, establishes functions of the defence force additional to those exhaustively specified in s. 202 of the Constitution and is therefore unconstitutional, null and void.
Held
(1)      (Per Miles J.; Kearney Dep. C.J. and Greville Smith J. agreeing.) The petitioner as moving party bore the onus of establishing his entitlement to the relief sought; this entailed on the facts, his proving that there was no international obligation under s. 202 of the Constitution to support the resolution or the Act.
Meaning of “international obligation” in s. 202(b) of the Constitution discussed by Greville Smith J., Kapi J., and Miles J.
(2)      As to the resolution of the National Parliament.
(Kidu C.J. and Kapi J. dissenting): The petitioner had not established that at the relevant time there was no international obligation on Papua New Guinea of the type envisaged by s. 202 of the Constitution and relief should be refused.
(3)      (Per Miles J.; Kidu C.J.; Kearney Dep. C.J.; and Greville Smith J., agreeing); Parliament cannot assign to the defence force a function outside its Constitutional functions, which are exhaustively specified in s. 202 of the Constitution.
(4)      (Per Miles J.; Kidu C.J. and Greville Smith J. agreeing); Section 205 of the Constitution lays down mandatory procedures to be followed in certain instances when the defence force is to engage in certain activities in the course of carrying out one or more of its functions under s. 202.
(5)      (Per Miles J.; Kidu C.J. agreeing); The activities specified in s. 205 of the Constitution may be engaged in to carry out the functions specified in s. 202 but cannot enlarge those functions.
(6)      As to the validity of the Act.
(Per Miles J.; Kapi J. agreeing); The Defence Force (Presence Abroad) Act 1980 is valid insofar as the proposal in s. 1 of the Act is for the purpose of carrying out one or more of the functions in s. 202 of the Constitution.
Cases Cited
Adams v. Adams [1970] 3 W.L.R. 934.
A.-G. (N.S.W.) v. Brewery Employees Union of N.S.W. (1908) 6 C.L.R. 469.
Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1.
Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44.
Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853.
Eastern Greenland, Legal Status of (1933) P.C.I.J. Series A/B, No. 53. Referred to in D.P. O’Connell, International Law (2nd ed., London, 1970) vol. 1, p. 202.
Raphael Warakau v. The State (Unreported Supreme Court judgment SC 184, dated 3rd November, 1980).
Supreme Court Reference No. 4 of 1980; Re petition of Michael Thomas Somare [1981] P.N.G.L.R. 265.
Taumaku Morea v. Central Provincial Government [1978] P.N.G.L.R. 415.
Petition
This was a petition seeking declarations as to the validity of a resolution of the National Parliament committing defence force troops to Vanuatu for peace-keeping purposes and as to the validity of the Defence Force (Presence Abroad) Act 1980.
For earlier proceedings establishing the locus standi of the petitioner see Supreme Court Reference No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265.
Counsel
P. D. Donigi, for the petitioner (arguing the affirmative case).
C. Maino-Aoae and R. Gunson, for the Intervener (Principal Legal Adviser) by leave (arguing the negative case).
1 March 1982
KIDU CJ: I have read the judgment of Miles J. and I agree with everything his Honour says including the conclusion that no international obligation is shown to have existed on 6th August, 1980, by the material before the court. This material is contained in the Prime Minister’s affidavit which reads, inter alia, as follows:
“2.      that by letter dated the 17th day of July 1980 from the Honourable Fr. w. hadye lini, Chief Minister for the then condominium of the New Hebrides the Government of the New Hebrides requested the Papua New Guinea Government to provide the Government of the New Hebrides with military and police assistance as from the day of independence if necessary to maintain law and order.
3.       that on the 25th day of July 1980 I caused a telex to be sent to the Honourable Fr. w. hadye lini acknowledging receipt of the letter referred to in paragraph 2 above and expressing to the Honourable Chief Minister my regret at the sudden nature of his request but advising that it was necessary for my Government to make proper arrangements in accordance with our Constitution and laws before providing him with the assistance requested.
4.       that on the 25th day of July 1980 following my telex referred to in paragraph 3 above I caused a letter to be sent to the Honourable Fr. w. hadye lini confirming my telex aforementioned and I therein assured the Honourable Chief Minister that my Government was treating his request positively and that the National Executive Council had agreed to advise the Head of State to recall Parliament on the 5th day of August 1980. I also advised the Honourable Chief Minister that it was essential for his Government and mine to speed up the finalization of a formal agreement on the use of our Defence Force personnel in order to define any legal or administrative matters that could arise during the proposed operation.” (Emphasis mine.)
The Prime Minister’s letter of 25th July, 1980, contains only an assurance that the Papua New Guinea Government was treating the request positively.
It appears from the affidavit that the National Executive Council had met to discuss the request. The Prime Minister made the assurance thereafter. However, it was made clear to the Prime Minister of Vanuatu that it was essential that an agreement be finalized. This did not eventuate.
The Principal Legal Adviser relied on the exchange of letters in submitting that an international obligation existed at the relevant time. In his written submission he stated:
“I submit therefore that the letters exchanged by the Heads of the two Governments and the subsequent approval of Parliament ... did create an ‘obligation’ on the part of Papua New Guinea to assist.”
Counsel for the petitioner submitted the contrary.
If there were any other documents which might have assisted the court in deciding the question of existence or non-existence of an international obligation on the part of Papua New Guinea to furnish military assistance to Vanuatu, these are not before the court. But that is neither here nor there. The fact is that both the petitioner and the Principal Legal Adviser relied on the affidavit of the Prime Minister in urging the court to accept their respective submissions. I do not consider the Prime Minister’s speech in Parliament, evidenced by the certified copy of the unedited Hansard, of any relevance. The speech reveals no obligation as contemplated by s. 202(b) of the Constitution.
Parliament approved the commitment of troops to Vanuatu without considering whether there was an international obligation in existence, which obliged Papua New Guinea to render military assistance to Vanuatu. In my view, Parliament must consider this question before approving an Executive decision to send troops overseas on active service or peace-keeping missions.
Having decided that no international obligation obtained at the relevant time for Papua New Guinea to send troops for peace-keeping purposes in Vanuatu, it follows that I am of the view that the petitioner is entitled to a declaration that the decision to send troops to Vanuatu was not constitutionally sanctioned.
I would rule as follows:
(a)      Yes
(b)      Yes
(d)      Yes
(e)      Yes
(g)      No
(i)       No
It follows that the petitioner is entitled to the ruling that the sending of troops was unconstitutional.
KEARNEY DCJ: The court as presently constituted has ruled by majority that the petitioner has standing to seek a ruling by this Court on the constitutionality of two decisions of the National Parliament; see Supreme Court Reference No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265.
I had the misfortune to dissent from that ruling.
The question whether a judge who dissents on a preliminary point of law should later observe the majority ruling and embark upon a consideration of the merits, is discussed by Kapi J. in Avia Aihi v. The State (No. 2) [1982] P.N.G.L.R. 44 at p. 59. I respectfully agree with his Honour’s analysis and conclusions.
In this case, I consider that I should adhere to the opinion I expressed in Supreme Court Reference No. 4 of 1980 (supra), to the effect that the petitioner lacks standing. I do so because I think it is correct, the opinion of the majority of the court wrong, and the question one of great constitutional importance. Needless to say, I express that view with diffidence and great respect to the other members of the court.
I rely upon the reasons expressed in the earlier opinion; it is unnecessary to repeat them (see [1981] P.N.G.L.R. at pp. 274-276).
In deference to the arguments on the merits I make the following four observations.
First, I respectfully agree with the analysis and conclusion of Miles J. that the Constitution, s. 202, is an exhaustive statement of the functions of the defence force; with the corollary that the Constitution, s. 205, does not extend these functions.
Secondly, for the peace-keeping operation in Vanuatu to be warranted by the Constitution, it must be characterized as assisting in the fulfilment of this country’s “international obligations”; see the Constitution, s. 202(b).
Thirdly, what is involved in “international obligations” is such that it is highly undesirable that the judicial voice of the people and the executive voice of the people, should differ. It was not sought in this case to resolve the question whether this country had relevant international obligations, by resort to an executive certificate; but it seems to me that there is a case for resolving the question in that way. The matter was not argued, and I leave it open.
Fourthly, it is a fundamental principle that he who contends that an Act is unconstitutional, must prove it. In this case, it came to this, that the petitioner had to prove that no relevant “international obligations” existed to warrant the Vanuatu peace-keeping operation under the Constitution s. 202(b). It is of course usually difficult to prove a negative but the attempt must be made. In this case the petitioner did not seek access to any relevant materials either by consent of the State or through the compulsive power of the court. The affidavit by the Prime Minister of 10th September, 1981, cannot be relied on by the petitioner as proving what he has to prove. That affidavit certainly does not spell out any international obligation; but that it does not do so, is quite irrelevant. The affidavit makes it clear that certain relevant correspondence exists; it is for the petitioner to see that that correspondence and any other relevant materials are put before the court, or to demonstrate that he has made every reasonable attempt to do so. No such attempt has been made and the intervener cannot suffer from the petitioner’s failure to do what the law requires him to do.
In my opinion the petitioner lacks standing, and the petition should be struck out as incompetent. But if the petition is competent, I consider that the petitioner has not proved the absence of relevant international obligations under the Constitution, s. 202(b), and the relief sought in the petition should be refused.
GREVILLE SMITH J: The events leading to the present proceedings are set out in the judgment of Kapi J. in Supreme Court Reference No. 4 of 1980; Re petition of M. T. Somare [1981] P.N.G.L.R. 265. In these proceedings the Supreme Court, in an interlocutory decision in which I participated, decided by majority that the petitioner had “locus standi” to seek a declaration from the court that, in effect, as the petitioner contends, the committing of part of the defence force for operations in Vanuatu and, it follows, those operations themselves, were in breach of the Constitution and illegal.
I had the misfortune to disagree with the majority. With the greatest respect I find myself still unpersuaded. Were it otherwise, and there seemed to me substance in the petitioner’s contention, I should nevertheless have had the greatest misgivings about granting the declaration sought. The making of a declaration is discretionary. “The Court will not make a declaratory judgment where the question raised is purely academic, or the declaration would be useless or embarrassing ...” (Halsbury 4th ed., vol. 1, p. 174). And, in my view, the court should hesitate to make a declaration if one were sought upon motives of obtaining political advantage, or where the making of a declaration would not be in the national interest. The operations to which the defence force were committed have been long concluded. There is no suggestion of any similar operation pending or even remotely in sight. The operation was on an international scale, and sovereign nations other than Papua New Guinea were involved. There are no international proceedings challenging the validity of the operation. There is no one seeking a personal remedy on the basis of the unconstitutionality alleged. The total ramifications of a finding of illegality are unforeseeable, with the international standing of this nation undoubtedly involved. For the preservation and promotion of the integrity and welfare of Papua New Guinea the various branches of government must support one another as far as they legally and properly can, and there seems to me much to be said for the view that it would be, in the circumstances I have outlined, legal, proper and desirable for this Court to refuse a declaration. I would, myself, be inclined to take into account also the impression that may arise of this Court’s decision having been sought upon motives of purely political advantage. Mr. Donigi, counsel for the petitioner, did at one stage in the earlier proceedings, seek to support the petitioner’s claim to “locus standi” by an attempted analogy with custom, which I noted not only with interest but also, I must confess, with judicial apprehension. Mr. Donigi stated that in tribal society in this country armed warfare and oratorical argument between contending groups were both legitimate customary means of advancing political aims and he sought to liken the forum provided by this Court to the gatherings in which such customary oratorical argument between contending groups took place, with the suggestion that a Leader of the Opposition was therefore, by analogy, on a basis of custom, entitled to utilize this Court as a vehicle for the pursuit of his political aims which, one need hardly observe, would no doubt from time to time involve the discrediting of political opponents, and the accretion of political credit to oneself. That this Court might be perceived in such a role is, in my view, not to be encouraged.
I would be inclined to regard as superficial any contention that it is right that governments in future should have the pronounced guidance of this Court as to what is legal and what is illegal in circumstances such as those here in question. That the legality of what has been done has been called in question should prompt any government of even minimal prudence to re-examine the questions involved with the utmost care and with the most expert advice against possible needs of the future and I think there would be much to be said for this Court leaving it at that. In any event future like situations, if they arise, will depend on their own particular facts and circumstances, and those of the Vanuatu operation are unlikely ever to be exactly repeated.
It happens, as will appear hereafter, that I do not have to resolve the question as to whether a declaration should be withheld, as a matter of discretion.
A question which I do have to resolve is whether, taking the dissenting view that I do on the initial question of “locus standi”, I should pursue matters further, or simply rest my judgment upon my views, already expressed, on the “locus standi” question. In my view, this is a discretionary matter and in this case, having regard to the view I shall hereinafter express, I am of opinion that I should proceed further.
I have had the advantage of reading in draft the judgment of my brother Miles J. His Honour said, inter alia, as follows:
“The submission put on behalf of the petitioner is essentially as follows:
(1)      that the functions of the defence force are confined to those set out in the Constitution, s. 202,
(2)      that the only such function which the defence force could colourably carry out pursuant to the resolution of Parliament and pursuant to the Act was to assist in the fulfilment by the nation of its international obligations under s. 202, and
(3)      that no international obligation existed, the fulfilment of which could have been assisted by the committing of troops pursuant to the resolution or to the Act.
…
The Principal Legal Adviser who appeared to argue the case in support of the validity of the resolution and of the Act joined issue on the petitioner’s initial argument (namely that the Constitution, s. 202, was exhaustive of the functions of the defence force) by submitting that the Constitution, s. 205, extends those functions to include the sort of activity that the resolution and the Act purported to authorize, namely an international peace-keeping operation.
…
In my view the Constitution, s. 205, is not intended to enlarge upon the functions of the defence force as set out in the Constitution, s. 202, and the Constitution, s. 205, does have that effect. What the Constitution, s. 205, does is to lay down mandatory procedures which are to be followed in certain instances when the defence force is called upon to carry out one or more of its functions.”
I am, with respect, in agreement with what his Honour has had to say and, generally, with the reasons given in his Honour’s judgment. Where then, does that leave the essential submissions of the petitioner as set out above by his Honour?
It is necessary to say at this point that I do not infer, from the fact that the Principal Legal Adviser chose to rely upon his argument involving s. 205, any concession that, as submitted on behalf of the petitioner, no international obligation existed. The course he chose may well have arisen from a disinclination to disclose, in this possibly sensitive realm of international relations, communications upon which such an obligation rested, together with either an over-confidence in his s. 205 argument, or a resolve to draw for Mr. Donigi a “red herring”, which, indeed, he may successfully have done. The fact of the matter is that it is the petitioner who is asserting illegality, and it is a fundamental rule that he who asserts must prove. It would be an intolerable situation if the reverse were true; if a petitioner simply by alleging illegality could put the intervener in a case like this to proof of legality.
At this point I would refer to the words which I hereinafter set out, of Isaacs J. (as he then was) in Attorney-General for N.S.W. v. Brewery Employees Union of N.S.W. (1908) 6 C.L.R. 469 at pp. 553-554, the first two paragraphs of which are relevant to the question of onus of proof, and the general tenor of which supports, I would add, by analogy what I have said earlier about discretionary refusal of a declaration in this case. His Honour said:
“The plaintiffs contend that Part VII of the Trade Marks Act 1905 is unconstitutional and void as being beyond the power of the Federal Parliament to enact.
They cannot succeed without establishing two things, first, their right to challenge the validity of the Act, and then its invalidity.
As to the first, the court cannot be called on, or with propriety assume, to question the legality of what Parliament has enacted as the will of the nation unless such a determination is absolutely necessary. It is a duty that has to be discharged when necessity arises as fearlessly and fully as the lightest that presents itself, and is in one respect the special function of this Court, but the interference must be essential. The paramount law of the Constitution must be upheld whenever a judicial controversy in which it is involved comes properly before the court, but this exercise of judicial power is only legitimate in the last resort: See Bruce v. Commonwealth Trade Marks Label Association (4 C.L.R. 1569); Chicago and Grand Trunk Railway Co. v. Wellman (143 U.S. 339, at p. 345); and the learned Editor’s note in the report of Webb v. Outtrim ((1907) A.C. 81 at p. 88).”
Assuming that the crucial question is whether the necessary international obligation existed, has the petitioner established that none did?
It is at this point necessary to formulate a tentative basic definition of the expression “international obligation”. This it seems to me should be done by taking the plain and ordinary meaning of the words used. In my view such an obligation, in the circumstances of this case, would have arisen if the Government of Papua New Guinea had so conducted itself as to have given rise to a reasonable expectation in the Government of Vanuatu that if that government so desired, a peace-keeping force would be despatched.
The petitioner must establish that no factual basis existed from which such an international obligation within the meaning of s. 202 of the Constitution arose. In this connexion the petitioner relied upon an affidavit sworn on 10th September, 1981, by the Prime Minister Sir Julius Chan.
In this affidavit the Prime Minister deposed as follows:
“2.      that by letter dated the 17th day of July 1980 from the Honourable Fr. w. hadye lini, Chief Minister for the then condominium of the New Hebrides the Government of the New Hebrides requested the Papua New Guinea Government to provide the Government of the New Hebrides with military and police assistance as from the day of independence if necessary to maintain law and order.
3.       that on the 25th day of July 1980 I caused a telex to be sent to the Honourable Fr. w. hadye lini acknowledging receipt of the letter referred to in paragraph 2 above and expressing to the Honourable Chief Minister my regret at the sudden nature of his request but advising that it was necessary for my Government to make proper arrangements in accordance with our Constitution and laws before providing him with the assistance requested.
4.       that on the 25th day of July 1980 following my telex referred to in paragraph 3 above I caused a letter to be sent to the Honourable Fr. w. hadye lini confirming my telex aforementioned and I therein assured the Honourable Chief Minister that my Government was treating his request positively and that the National Executive Council had agreed to advise the Head of State to recall Parliament on the 5th day of August 1980. I also advised the Honourable Chief Minister that it was essential for his Government and mine to speed up the finalization of a formal agreement on the use of our defence force personnel in order to define any legal or administrative matters that could arise during the proposed operation.”
It will be noted that the communications referred to took place before the date upon which, as agreed upon by counsel and as, I think, this Court can take judicial notice, Vanuatu came into existence, namely 31st July, 1980. This to my mind is not conclusive as to whether there was an existent international obligation at all relevant times, especially as no material was adduced upon which a decision might be made as to the status and powers, if any, of the Hon. Fr. W. Hadye Lini and the Government of the New Hebrides in relation to the nascent nation of Vanuatu, or of any constitutional provisions of the emergent Vanuatu relating to the activities of the pre-existing government and their consequences.
The affidavit discloses only a request and a non-committal reply—nothing, it might be strongly argued, upon which an international obligation could arise. But this affidavit which was filed by the Principal Legal Adviser, quite clearly does not purport to be a complete disclosure of all relevant communications. Indeed, counsel for the petitioner during argument said he understood that there had been other communications in respect of which the State would claim privilege. For reasons best known to himself he did not seek to test whether there were other communications or, if there were, whether privilege would be claimed, or whether if claimed, such a claim would have been upheld, either by subpoena duces tecum or by requiring the Prime Minister to attend for cross-examination upon his affidavit, as he might have done as a condition of the reading of the affidavit. Perhaps if he had objected to its admissibility except subject to cross-examination of the deponent it would not have been before the court, and he considered that half a loaf was better than no bread at all. He could, of course, himself have subpoenaed the Prime Minister.
However all this may be, whilst the statement of counsel for the petitioner as to his understanding that there were those other communications cannot in my view be regarded as any evidence that there were, or any concession that there were, other relevant communications, such statement does alert the court, if such alerting were needed, to the substantial possibility, if not in all the circumstances the probability, of other relevant and cogent communications. I would add that in my opinion the evidentiary deficiencies of the petitioner’s case cannot be supplied by the attempt made by Mr. Maino to construct an argument that on the contents of the affidavit and other material before the court there was indeed an international agreement. In my opinion it would be dangerous, in a case such as this, to infer from such an attempt that there were no other communications or events of significance. In this situation I am not satisfied that the movement of part of the defence force to Vanuatu and other activities ancillary thereto, and the acts and matters which set them in motion, were not within the function to assist in the fulfilment by Papua New Guinea of its international obligations, either within the tentative definition abovementioned, or any reasonably tenable variation thereof. I would therefore for this reason also, dismiss the application with costs against the petitioner both on this hearing and upon the earlier hearing relating to “locus standi”.
KAPI J: I have had the advantage of reading the draft judgment of Miles J. His Honour has fully set out the major issues and the arguments put forward by the parties.
In relation to the functions of the defence force, I entirely agree with his Honour that the functions of the defence force are as set out under s. 202 of the Constitution and s. 205 was not intended to enlarge upon those functions. Section 205 can be best described as procedural provision.
I now turn to the next major issue contested in this case. The issue is whether the resolution by the Parliament to send the troops to Vanuatu was within the functions of the defence force “to assist in the fulfilment by Papua New Guinea of its “international obligations” pursuant to s. 202(b) of the Constitution.
WHAT IS AN INTERNATIONAL OBLIGATION?
No attempt can be made to define the phrase until it is established what principles of law are applicable. There is no definition of the term “international obligation” in the Constitution. Section 202 of the Constitution gives no assistance in indicating to what source of law one should turn to define the term.
Consideration of other provisions of the Constitution may throw some light on determining what is an “international obligation”.
Section 2(2) of the Constitution speaks of “obligations at international law”.
In my opinion, s. 2(2) of the Constitution speaks of the same subject as in s. 202(b) of the Constitution. This leads to the conclusion that the definition of the term “international obligation” is determined with reference to public international law.
This conclusion can be further supported by s. 117 of the Constitution. This provision deals with treaties.
Both counsel are agreed that a treaty amongst other forms of relationships recognized at public international law, may give rise to an “international obligation” under s. 202(b) of the Constitution. With this I agree. The point I wish to make is that a treaty under s. 117 of the Constitution is governed by international law. It would be inconsistent to suggest that “international obligation” under s. 202(b) should be determined other than with reference to public international law. International obligation can be defined as obligation freely accepted by the Papua New Guinea Government (according to the Constitution) by means or transactions recognized at public international law.
WHAT IS INTERNATIONAL LAW?
International law is not defined by the Constitution. This is not the proper place to discuss it in any detail. This can be obtained from the numerous texts written on the subject. It is only necessary to refer to a definition provided by a text writer. This is not intended to be the authoritative definition of international law but it simply gives an idea of the nature of international law.
“International law may be defined as that body of law which is composed for its greater part of the principles and rules of conduct which States feel themselves bound to observe, and therefore, do commonly observe in their relations with each other, and which includes also:
(a)      the rules of law relating to the functioning of international institutions or organisations, their relations with each other, and their relations with States and individuals; and
(b)      certain rules of law relating to individuals and non-State entities so far as the rights or duties of such individuals and non-State entities are the concern of the international community.”
(See Starke Introduction to International Law (7th ed., 1972), p. 1.)
This presents no easy task to anyone who wishes to establish a principle of public international law. It is apparent from the textbooks that principles of international law may differ on the basis of regions (e.g. Latin American States as opposed to African States) or ideology (communist and non-communist) or functional groupings such as European Economic Community. A system of international law which can be said to be applicable to Papua New Guinea depends on the way Papua New Guinea develops in the international community.
In this regard I agree with Miles J. that the judiciary can play very little part in its development. It will only be involved in making findings of principles of international law from sources recognized at international law.
Papua New Guinea may accept different international obligations through various means recognized at international law. It is not necessary in this case to discuss all of them. A significant method by which Papua New Guinea may accept international obligations is by treaty. In this regard s. 117 of the Constitution is significant. The parties are agreed that there is no formal treaty in this case as defined at international law and s. 117 of the Constitution.
The specific issue is, does Papua New Guinea have an international obligation at international law “to assist the people of Vanuatu in the attainment of their independence and in their desire to consolidate their independence and unity”. If there is such an obligation then Papua New Guinea may use its defence force to assist in the fulfilment of such an obligation. The existence of the obligation is a condition precedent to the use of the defence force in a situation such as the one in question. That is the requirement of s. 202(b) of the Constitution. Approval by Parliament under s. 205 cannot remedy the absence of an international obligation.
As I understand the alternative argument by the Principal Legal Adviser, he argued that there was evidence of international obligation. This evidence he submitted is contained in the letters between the two Prime Ministers. He has not relied on the submission that the court should not grant the declaration because of lack of evidence by the petitioner.
On the contrary, he supplied the evidence of what went on between the Prime Ministers and relied on this for the existence of the international obligation. There is no suggestion of the existence of the international obligation through any other means. For instance there is no suggestion that there is a treaty under s. 117 of the Constitution, or treaty binding under s. 273 of the Constitution or any obligation that may have been accepted by a resolution of the United Nations or South Pacific Forum of which Papua New Guinea is a member. In fact counsel for the petitioner in his submission went through some of these areas on the creation of international obligations. This is also covered in the affidavit of the petitioner.
The Principal Legal Advisor, having confined himself to the letters and telex, whether or not there is an international obligation depends on how the court views this evidence.
What took place between the parties is summarized in the affidavit of Sir Julius Chan, the Prime Minister of Papua New Guinea. In a letter dated 17th July, 1980, Fr. Walter Lini requested the assistance of Papua New Guinea to provide military and police assistance from the day of independence to maintain law and order. There is no recognized principle of international law which recognizes a creation of an international obligation by a mere request of this nature.
Then the Prime Minister of Papua New Guinea by a telex dated 25th July, 1980, acknowledged the letter and expressed regret at the sudden nature of the request and advised that it was necessary to make proper arrangements in accordance with the Constitution.
On the same date the Prime Minister in a letter confirmed the telex and advised that Parliament would be recalled to consider the request. The Prime Minister also made reference to an agreement to be entered into.
The letters and telex have not been tendered in court but I do not doubt the contents as summarized in the Prime Minister’s affidavit. I do not think the Prime Minister has misrepresented any fact or withheld any facts regarding the question or acceptance of an international obligation.
Could it be said that these exchanges of letters amounted to an agreement, or arrangement by which it was agreed that Papua New Guinea would provide military assistance as from independence to maintain law and order. If there was such an agreement, did this give rise to an international obligation (at international law) to provide military assistance.
The facts as provided in the affidavit of the Prime Minister hardly evidence any agreement or arrangement. There was simply a request and the Prime Minister said he would consider the request pursuant to the Constitution and caused the National Executive Council to agree to recall Parliament to consider the request. It could not be said from the Prime Minister’s telex and letter that he committed Papua New Guinea to assist the people of Vanuatu in the attainment of its independence and maintenance of law and order.
As far as I can see there was no international obligation on the part of Papua New Guinea to provide military assistance arising out of these letters. The approval given by Parliament was given without the existence of an international obligation at international law.
It is apparent that the Government approached this matter on the legal opinion that s. 205(2) was an additional function of the defence force. This view is evident in the Prime Minister’s speech during the debate in the Parliament and the Principal Legal Adviser’s submissions. This view has been held to be wrong. Parliament cannot use the defence force apart from the functions set out under s. 202.
There is no evidence of an “international obligation” in the letters between the Prime Ministers.
Some reliance may be placed on the Eastern Greenland case (1933) P.C.I.J. Reports, Ser. A/B No. 53 referred to in D. P. O’Connell International Law (2nd ed., London, 1970), vol. 1, p. 202, to support the argument that the exchange of notes between the two Prime Ministers gave rise to an international obligation. The Eastern Greenland case can be distinguished from the present case on two grounds:
(a)      that the Norwegian Minister made an undertaking or agreement that Norway would not make difficulties in relation to Danish interests with respect to Greenland.
In this case, our Prime Minister in a telex dated 25th July, 1980, expressed his regret at the sudden nature of the request and advised that it was necessary to make proper arrangements in accordance with the Constitution and laws before providing with assistance requested.
His letter of the same date adds nothing except to advise further that advice has been given to the Head of State to recall Parliament. It is also significant that reference was made to a formal agreement on the proposed operations.
There is no evidence of undertaking or commitment of the troops to Vanuatu. All that the Prime Minister was saying was that no assistance could be provided before approval by the Parliament in accordance with s. 205 of the Constitution and the passing of the Defence Force (Presence Abroad) Act 1980. There is no agreement or undertaking for committal of troops by the Prime Minister which could give rise to an international obligation.
(b)      The International Court of Justice considered:
“beyond all dispute that a reply of this nature given by the Minister for Foreign Affairs on behalf of his Government in response to a request by the diplomatic representative of a foreign Power, in regard to a question falling within his province, is binding upon the country to which the Minister belongs.” (Emphasis mine.) (D. P. O’Connell International Law, vol. 1, p. 203.)
The question to ask is does the Prime Minister have any power to commit the troops overseas. Only the Head of State may, and, with the approval of the Parliament. (See s. 205 of the Constitution.) If they came to any agreement (which I do not find) then this would have no binding effect on Papua New Guinea as the Prime Minister has no power of control over the defence force. The Constitutional Planning Committee recommended that the Prime Minister be the Commander-in-Chief of the defence force but this was rejected by the Constituent Assembly. Under s. 201 of the Constitution, there is no office of Commander-in-Chief. The defence force is controlled by the collective responsibility of the National Executive Council, through the Ministry of Defence (see s. 201(2) of the Constitution).
At international law, whether an agreement is treated as formal (treaty) or informal such as notes verbal and oral, depends on the gravity of the problems and its political implications (see D. P. O’Connell International Law (2nd ed., London, 1970) vol. 1, p. 195).
Our Constitution under s. 117 deals with formal treaties as understood at international law. I would expect that our Government will use these provisions to commit Papua New Guinea in international agreements in matters which are of great importance. I would consider that the use of our defence force on foreign soil for purposes of maintaining law and order is of the greatest importance. International commitment or obligation of this nature ought to be entered into by way of treaty under s. 117. This is clearly envisaged by s. 117 only with the exception of agreement entered under s. 206 of the Constitution (see s. 117(1) of the Constitution).
Less important matters are best left to less informal agreements recognized at international law.
The debates in the Parliament can take the matter no further. The debates contain statements of moral and political considerations. These are not sufficient to create international obligations. These may form the basis or the motive for creation of international obligations through relationships recognized at international law. These involve the conscious and free acceptance of obligations at international law by Papua New Guinea through means recognized at international law and the Constitution. It is this type of obligation which s. 2(2) of the Constitution speaks of. The approval was given by the Parliament without there being an existing international obligation towards Vanuatu. This is an approval contrary to the requirement of s. 202(b).
If the application was made before the troops left or during their stay in Vanuatu, I would have no hesitation in making the declaration that approval to commit troops was given contrary to s. 202(b) of the Constitution and declare that the resolution was null and void.
However, the troops have gone and have come back. There is until now no further proceedings or action to be taken on the decision. Is this a ground upon which I can decline to make a declaration? Order IV r. 11 of the Rules of the Supreme Court is relevant on this. Under this rule the fact that no consequential relief is sought is not a good ground for declining to make the declaration. (See also Taumaku Morea v. Central Provincial Government [1978] P.N.G.L.R. 415.
It would follow from my reasoning that I would grant the declaration.
In relation to the validation of the Defence Force (Presence Abroad) Act 1980 I agree with the conclusions and reasons given by Miles J.
MILES J: The matters leading to the present proceedings are set out in the judgment of Kapi J. in Supreme Court Reference No. 4 of 1980 [1981] P.N.G.L.R. 265. The majority of the court decided that the petitioner had legal standing to seek a ruling from this Court as to the matters raised in the petition and that the matters raised are solely for determination by this Court.
In the light of the majority decision the case has now been fully argued before the court and the questions which have eventually been formulated as those on which the court should deliver its opinion are as follows:
1.       Whether the motion passed by Parliament on 6th August, 1980 was valid;
2.       Whether the Defence Force (Presence Abroad) Act 1980 is valid.
The submission put on behalf of the petitioner is essentially as follows:
(1)      that the functions of the defence force are confined to those set out in the Constitution, s. 202,
(2)      that the only such function which the defence force could colourably carry out pursuant to the resolution of Parliament and pursuant to the Act was to assist in the fulfilment by the nation of its international obligations under s. 202, and
(3)      that no international obligation existed, the fulfilment of which could have been assisted by the committing of troops pursuant to the resolution or to the Act.
For those reasons so it is submitted both resolution and Act are invalid.
The Principal Legal Adviser who appeared to argue the case in support of the validity of the resolution and of the Act joined issue on the petitioner’s initial argument (namely that the Constitution, s. 202, was exhaustive of the functions of the defence force) by submitting that the Constitution, s. 205, extends those functions to include the sort of activity that the resolution and the Act purported to authorize, namely an international peace-keeping operation.
In my view this objection to the petitioner’s first argument may not be sustained. The Constitution, s. 202, bears the heading “Functions of the Defence Force”. The provisions of the section commence with the assertion that “The functions of the Defence Force are—” and continue with the enumeration of those functions by reference to the four infinitives: “(a) to defend ... (b) to assist ...(c) to provide ... and (d) to perform ....” The carrying out of all those functions is expressed in terms of taking place “either within the country or outside it” and “in accordance with this Constitution and Acts of Parliament”. The term “international peace-keeping operation” does not appear in the Constitution, s. 202.
The Constitution does not authorize Parliament to assign to the defence force a function which is outside those functions enumerated in the Constitution. The words “in accordance with this Constitution” indicate, I think, the intention that other provisions of the Constitution which bear on the functions of the defence force should be regarded as procedural or facilitating provisions and not as adding to the functions laid down in the Constitution, s. 202, unless the words used elsewhere in the Constitution clearly indicate that those functions are to be enlarged beyond the provisions of the Constitution, s. 202, and despite the provisions of that section. The word “function” is a word in common use and is not define or given any special meaning. It has as far as I am aware no particular meaning in Papua New Guinean usage. Its dictionary meaning (Shorter Oxford English Dictionary, 3rd ed.) includes “the special kind of activity proper to anything; the mode of action by which it fulfils its purpose” and I take this to be its meaning as employed in the Constitution, s. 202.
In its Final Report the Constitutional Planning Committee stated its belief “that the functions of the defence force should be clearly set out and that they be exercised in accordance with the Constitution” (p. 13/4 par. 32). The Committee proposed that the defence force should have “four basic functions” which were set out in the Report in terms similar to those adopted in the Constitution. I do not think that by the term “basic” the Committee intended that the force should carry out additional non-basic functions, functions which did not fall within the four basic functions as set out. The Committee acknowledged that some activities of the force might be seen as involving one or more of these “broad functions”: (p. 13/4 par. 33). This seems to imply that whilst a particular activity might have been seen to fall within more than one of the four functions, it is necessary that any legitimate defence force activity fall within at least one of those functions and not altogether outside them.
The Constitution, s. 205, is headed “Active Service”, yet its provisions seem to go beyond the subject matter of that term as it is employed in the section. “Active service” is not defined in the Constitution. Webster’s New International Dictionary (2nd ed.) defines the term as “service in the field against an enemy”. Section 205(1) seems to imply that active service includes service for the purposes of defence against attack and service for other undefined purposes. It is consistent with active service being performed either inside or outside the country. Section 205(2) seems to distinguish between active service on the one hand and an international peace-keeping or relief operation on the other hand, and being expressed in the negative prohibits the commitment of the defence force to active service or to an international peace-keeping or relief operation without the prior approval of the Parliament. It is not clear whether s. 205(3) distinguishes between “war or warlike operations” on the one hand and “defence against attack” on the other, although “active service” is conceivably included in both. Section 205(4) implies a distinction between “normal administrative or training purposes” and “an international peace-keeping or relief operation”, but does not relate the former expression to “active service”. The term “active service” is not easy to relate either to the other terms and expressions used in the Constitution, s. 205, nor to the provisions of the Constitution, s. 202.
The proposals of the Constitutional Planning Committee in p. 13/5 paras. 36-38 and p. 13/9 par. 17 as to active service outside Papua New Guinea are clear in themselves but the provisions of the Constitution, s. 205, as they finally emerged indicate certain modification of the original recommendations together with considerable amplification. Consideration of the Committee’s Final Report does not assist in the construction of the Constitution, s. 205. In my view the Constitution, s. 205, is not intended to enlarge upon the functions of the defence force as set out in the Constitution, s. 202, and the Constitution, s. 205, does not have that effect. What the Constitution, s. 205, does is to lay down mandatory procedures which are to be followed in certain instances when the defence force is called upon to carry out one or more of its functions. Those procedures will need to be followed where the function or functions are to be carried out extra-territorially under the Constitution, s. 205 (1)(b), or under the Constitution, s. 205(2) (apart from the exceptions mentioned in the Constitution, s. 205(4)). Certain other procedures are to be followed when the defence force becomes engaged in war or warlike operations or in defence against attack under the Constitution, s. 205(3), regardless of whether the engagement is at home or abroad. The various procedural requirements are prescribed in relation to a variety of activities carried out within the functions of the defence force. But none of those activities may enlarge any one or more of those functions and the defence force may be ordered on, or committed to, an international peace-keeping operation only insofar as such operation is to be performed as part of the function of the defence force to defend Papua New Guinea under s. 202(a), to assist in the fulfilment of the country’s international obligations under s. 202(b), and so on under s. 202(c) and s. 202(d) of the Constitution.
The Principal Legal Adviser’s initial objection to the petitioner’s submission is therefore rejected, and the issue as it has been debated by counsel becomes a clear one. The petitioner says that neither the resolution nor the Act can be supported by reference to any international obligation which has been incurred by this country. The Principal Legal Adviser on the other hand submits that there is such an obligation and that that obligation is identified as that which arises from the exchange of letters between Fr. Walter Lini and Sir Julius Chan in July 1980 referred to in the affidavit sworn by Sir Julius Chan on 10th September, 1981.
The petitioner’s task is not made easier by the fact that he is the moving party and bears the onus of establishing his entitlement to the relief sought. However the executive arm of the State has appeared through the Principal Legal Adviser and the Prime Minister has furnished the affidavit referred to. There is a general principle of law that if the knowledge as to the existence or non-existence of a disputed fact lies within the particular knowledge of a party, then the failure of that party to adduce evidence as to the fact is a proper ground for inferring that the evidence, if adduced, would not be favourable to that party: see Raphael Warakau v. The State (Unreported Supreme Court judgment SC184, dated 3rd November, 1980).
Whether there is or was an international obligation is a matter of mixed law and fact. What is meant by “international obligation”? On the one hand it was suggested by the Principal Legal Adviser that an obligation of this nature fell short of a legally enforceable obligation and that a moral or political obligation of an international character was sufficient. On the other hand counsel for the petitioner submitted that the obligation had to be one that was recognized in international law. In my view the word “obligation” should not be construed in the sense in which it is normally used in the municipal law of Papua New Guinea, for instance where the State enters into contracts to employ foreign nationals within Papua New Guinea and thereby acquires certain obligations under the law of Papua New Guinea to abide by the terms of those contracts. Equally the word does not in my view connote an obligation such as may be incurred in private international law, for instance where Papua New Guinea borrows money abroad and is committed to repayment under the law of another country. It would be inappropriate for the defence force to be used to assist in the fulfilment of the sorts of obligations just mentioned. The obligation must in my view be of a public kind and the commitment of troops to assist in its fulfilment must be appropriate to the character of that obligation.
It is not correct to say that the obligation need be no more than a moral or political obligation. If this were so the court could really play no role in determining whether or not an obligation had been incurred. The acceptance of an obligation would become indistinguishable from the assertion of political policy.
Weight too has to be given to the word “international” which in my view indicates something more than merely foreign or external to Papua New Guinea. It encompasses something of the relationship between nations, between Papua New Guinea as a nation and similar national entities outside Papua New Guinea.
Counsel for the petitioner submitted that an international obligation arose under s. 202 only if there was an agreement recognizable in international law between Papua New Guinea as a sovereign nation and some other sovereign nation. He conceded that such agreement need not be formalized as a treaty (as to which see the Constitution, s. 117) and I would agree that an international obligation within s. 202 does not have to arise from a treaty. The recommendation of the Constitutional Planning Committee referred to “international or treaty” obligation (p. 13/9 par. 16) and the dropping of the word “treaty” from the final draft was in my view no more than a recognition that treaty obligations are one type of a wider range of international obligations. In this respect it may be of relevance to record that in the official Memorandum on the Legality of United States Participation in the Defence of Vietnam ((1966) 54 Department of State Bulletin 474, 488-489 quoted in Holder & Brennan The International Legal System: Cases and Materials (Sydney, 1972), p. 819), the United States justified its action in Vietnam in terms of “commitments”, “undertakings”, “international obligations” and “assurances”, although the use of the term “international obligation” was reserved for the situation which had arisen under treaty.
“The United States has commitments to assist South Vietnam in defending itself against Communist aggression from the North. The United States gave undertakings to this effect at the conclusion of the Geneva conference in 1954. Later that year the United States undertook an international obligation in the SEATO treaty to defend South Vietnam against Communist armed aggression. And during the past decade the United States has given additional assurances to the South Vietnamese Government.”
Whilst it may not be necessary for the source of an international obligation to be found in a treaty, it was necessary, according to the submission of petitioner’s counsel, that the matter had to go as far as the exchange of notes verbales between duly accredited representatives of sovereign states, and counsel cited the Eastern Greenland case ((1933) P.C.I.J. Reports, Ser. A/B, No. 53 referred to in D. P. O’Connell International Law (2nd ed., London, 1970) vol. 1, p. 202), in order to distinguish it from the case before us. In that case the majority of the Permanent International Court of Justice recognized as binding an exchange of notes between the Foreign Ministers of Norway and Denmark. The distinction between that case and the facts with which we are dealing is that the exchange of letters between Fr. Walter Lini and Sir Julius Chan took place at a time when the Condominium of the New Hebrides was self-governing but not independent and when the Republic of Vanuatu had not yet come into existence as a sovereign state. Hence so it is submitted the exchange of letters did not rise to an obligation as between nations.
It is common ground between the petitioner and the Principal Legal Adviser, and I think that this Court would take judicial notice of the fact that Vanuatu came into existence on 31st July, 1980. However it is a very different matter for this Court to deliberate on the status of the prime minister of the pre-independence government of the New Hebrides and on the power of that prime minister or his government to enter into relations with foreign countries.
The meaning of the term “international obligation” in s. 202, so it seems to me, is to be governed by the principles of public international law—that is to say public international law as it is perceived and recognized in Papua New Guinea. International law for Papua New Guinea is not necessarily the same as it may be for the United Kingdom or for the United States or for the People’s Republic of China. It is widely recognized by textwriters that there is not one indivisible law of nations, but several systems existing side by side. Papua New Guinea will develop its own system of international law. It will be developed over the years out of the international situations in which Papua New Guinea may involve itself or in which it may find itself. It will develop out of treaties and the international practices of Papua New Guinean statesmen and diplomats. It will be influenced no doubt by decisions of the United Nations and other international bodies. It is of the nature of public international law unlikely that the courts within Papua New Guinea will play a very significant part in its development. But there may be occasions in which a Papua New Guinean court will have to make a finding on a matter involving public international law. I think this case is one of them. Although international law does not rate a mention in the Constitution, s. 9, which exhaustively states those elements of which the law of Papua New Guinea consists, there will be instances when the underlying law will have to accommodate situations involving a public international law element where neither custom nor the common law-equity principles furnish a rule. It seems to me that the meaning of “international obligation” in s. 202 may be determined only by developing the underlying law so as to incorporate a Papua New Guinean view of public international law.
The ultimate question then becomes thus: did the exchange of letters between Fr. Lini and Sir Julius Chan create a relationship which, under the public international law as recognized by Papua New Guinea, cast an obligation on this country, an obligation the fulfilment of which was likely to be assisted by the deployment of the defence force? It appears that the Government considered that there was, at the least, some sort of obligation. The motion put to Parliament speaks, inter alia, of the request made to the Government of Papua New Guinea by the lawfully elected government of the Republic of Vanuatu, formerly the New Hebrides, to assist in peace-keeping operations and of “our need and duty to assist the people of Vanuatu in the attainment of their independence and in their desire to consolidate their independence and unity”. It is in the light of those considerations that the resolution authorizes the sending of part of the defence force “forthwith to Vanuatu for peace-keeping purposes”.
There was put in evidence a certified but unedited copy of Hansard covering the debates on the motion. In his speech to the Parliament in support of the motion, the Prime Minister made several statements upon which the Principal Legal Adviser relied. Such statements included the following:
“The policy of Papua New Guinea in the South Pacific which implies ‘that Papua New Guinea could be called upon either individually or jointly with another country, to support one of its island neighbours in a situation where, otherwise an outside power could intervene ...” (par. 11/2/5);
“The responsibilities and moral commitments arising out of our foreign policies and our good fortune in achieving a peaceful transition to independence” and “the regional responsibilities which we have talked of since the first days of Independence” (par. 12/2/1);
“Father Lini can ask with confidence for help knowing that we will abide by his wishes ...” (par. 12/2/5);
“Since we became independent it has always been possible that Papua New Guinea some day would have to support one of its island neighbours with action. Much as we might like to think that making commitments to keeping the South Pacific peaceful will cost us only words, this cannot always be”. (par. 13/2/5-6).
Whilst these statements, and others, carry a sense of what might be best described as strong commitment, it is not so clear that they acknowledge an international obligation. The limits of the arrangement between the two countries was recognized by the Prime Minister’s reference to a future draft agreement which was to be tabled in Parliament and to which it was intended that each government become a party.
It is worth mentioning that the petitioner unsuccessfully sought to take this point by moving in the Parliament that the Bill for the Act be referred to this Court because it did not envisage the implementation of any of the functions of the defence force as defined in the Constitution, s. 202, and because the committal of troops was for a purpose other than the fulfilment of the nation’s international obligations. The motion was ruled out of order.
The terminology of the resolution and these speeches of the Prime Minister do not in my view carry the matter very far at all. At the least they are statements of principles of foreign policy based on moral and political considerations; at the most they may amount to a recognition by the Government of some sort of legal or quasi-legal obligation to Vanuatu. Taken as a whole they fall somewhere between the two. What could have been done to inform the court on this issue was for the Prime Minister or the Minister for Foreign Affairs to furnish to the court an official executive certificate stating that it was the view of the National Government (assuming that such was its view) that as a result of the exchange of letters between the two Prime Ministers, Papua New Guinea was obliged as a matter of international law to render assistance to the Government of Vanuatu in the nature of peace-keeping operations and by way of the commitment of members of the defence force to that end. Such a certificate might appropriately have included particulars of the material from which the obligation was believed to have arisen. The furnishing of such certificates is the practice in the United Kingdom and in Australia. What the practice is in other countries of the world I do not know, but I think it is a practice that is worthy of consideration for this country.
The English practice is described by Brownlie in Principles of Public International Law, (2nd ed., Oxford 1973), p. 54 as follows:
“In the realm of international relations the English courts seek the guidance of the appropriate department of government on the determination of a variety of issues, including the status of entities claiming to be independent states, the recognition of governments, the existence of a state of war, and the incidence of diplomatic immunity. This is formally a matter of evidence, a procedure for taking judicial notice of material facts, but the certificate of the Secretary of State is conclusive of the matter, unless the certificate deliberately leaves the court free to construe a particular word or phrase, for example, ‘war’ in a time charter-party. The effect of this procedure is where necessary to subject the courts to the determination of important legal issues by the executive and so avoid the embarrassment of a conflict of opinions.”
Two recent cases in which the Foreign Secretary’s certificate was accepted as conclusive, were Carl Zeiss Stiftung v. Rayner & Keeler Ltd. (No. 2) [1967] 1 A.C. 853 (status of government of East Germany) and Adams v. Adams [1970] 3 W.L.R. 934 (status of government of then Southern Rhodesia).
There may be room for the view that in Papua New Guinea the certificate of the executive, although strongly persuasive, should not be regarded as necessarily conclusive in all cases. The executive should not be in a position to create an international obligation merely by saying that one exists. The court should be able to reserve unto itself a residual fund of judicial knowledge which may not be set aside by the say-so of the executive (or even of the legislature). An example of such judicial reservation elsewhere was Australian Communist Party v. Commonwealth (1951) 83 C.L.R. 1, where the majority of the High Court of Australia was not prepared to say that the State of international relations as it then existed to the judicial knowledge of the court was such that an Act to outlaw the Communist Party was incidental to the country’s defence: and this despite the clearest assertions to the contrary in the preamble to the Act.
In the present case however I do not think that the judicial knowledge of the court is sufficient to assist in recognizing any obligation owed by Papua New Guinea to Vanuatu relevant to the matter before the court.
The State has chosen (despite invitation from the court) not to assist by way of furnishing an official certificate. Indeed it was suggested that if the petitioner sought to subpoena any relevant documents, then a claim of State privilege would be made. The material on which the court is left to decide the case consists of first, the Prime Minister’s summary of the correspondence between himself and Fr. Lini and secondly, the speeches in Parliament where some of the correspondence was read out. I think that this leads to the conclusion that the government did consider itself obliged, on its view of what constituted international obligation (and subject to the approval of Parliament), to commit the defence force in accordance with the understanding reached between the two Prime Ministers. This sense of obligation derives not merely from what was seen as in Papua New Guinea’s own interest: a similar obligation would have been seen by the Government to rest on any nation in Papua New Guinea’s position in the light of the relationship between the two countries concerned and of the understanding reached between their leaders. To that extent I think it would be impossible for this Court to be satisfied that no international obligation existed. If there was such an obligation it was, on the terms of the correspondence between the two Prime Ministers, of such a nature that its fulfilment was at least likely to be assisted by the commitment of the defence force. At the highest it might be said that the very obligation was to the commitment of troops.
The fact that the understanding between the two Prime Ministers was reached prior to Vanuatu achieving its independence, is not in the end of any great relevance. By the time of the Parliamentary resolution and of the passing of the Act the understanding (which must be inferred as having continued in the meantime) became an understanding between the leaders of two sovereign nations. In his International Law and the New African States (London, 1972) the Nigerian lawyer, F. C. Okoye, has written that in Africa “the more advanced colonies had some personality in international law to the extent that they were accorded capacity for international rights and obligations” (pp. 7, 8). Upon the attainment of independence there has been “a trend in favour of acceptance among the overwhelming majority of the African States that the new State succeeds to the international rights and obligations entered into by its successor insofar as those concern the new State” and this provides “a basis on which third States can presume the maintenance or novation of pre-existing rights and obligations” (p. 118).
It was also submitted on behalf of the petitioner that no obligation involving the commitment of troops to Vanuatu could be recognized in international law having regard to Papua New Guinea’s position as a member of the United Nations. It was submitted that Chapter VI and other provisions of the Charter of the United Nations provide for collective measures through the United Nations rather than for unilateral approaches by member states. General Assembly Resolution 2131 (xxx) declaring that “no state has the right to intervene directly or indirectly for any reason whatsoever in the internal or external affairs of any other state” was also relied upon. However neither the Charter nor the declaration of non-intervention expressly precludes bilateral arrangements of the type entered into between Fr. Lini and Sir Julius Chan. At this stage of the development of international law for Papua New Guinea I do not think that this Court should accept without reservation the statement quoted from an American, Q. Wright, (and relied upon by the petitioner) that “the handling of insurrection, rebellion, civil strife or other forms of internal violence is presumed to be within the domestic jurisdiction of the State, and neither a foreign state nor the United Nations can intervene to suppress it, even on the invitation of the Government, in case the revolt is so serious that the result is uncertain” (my emphasis). That there are two schools of thought is clearly explained by Prof. D. P. O’Connell in his authoritative International Law (2nd ed., London, 1970) who summarizes the argument and his own conclusion as follows:
“One school of opinion considers that inter-position in pursuance of an invitation or treaty of guarantee is illegal because it influences the political destiny of another country and thereby its sovereign right to determine its own political institutions. On the other hand, the established government of a country is alone competent to exercise the sovereign rights thereof, and among those sovereign rights is the right to maintain political order: an invitation to a foreign nation to assist in maintaining order is not an abrogation of sovereignty. The solution to the question may depend upon concrete circumstances, and no general condemnation of aid to a foreign government is fruitful or possible.” (Vol. 1, p. 301.)
For the petitioner to succeed on this argument he would have to show on the facts that the commitment of the Papua New Guinean Defence Force to service in Vanuatu was such an intervention in the affairs of Vanuatu as to amount to an invasion of Vanuatu’s sovereignty. This has not been shown.
Although I am unable on the material before the court to arrive at an affirmative conclusion that at the relevant time there was a positive international obligation on Papua New Guinea of the type envisaged by the Constitution, s. 202, that does not mean that the petitioner is entitled to relief. The onus is on the petitioner to make out his case and that has not been done. I am conscious that this is a not entirely satisfactory way in which to dispose of the matter but there must be a finding that the petitioner has not established that there was an absence of international obligation. Although the granting of declaratory relief is discretionary once the ground for relief is made out, this finding precludes the making of any order which will nullify the resolution of Parliament on 6th August, 1980.
It is necessary to turn only briefly to the second order sought, namely that the Defence Force (Presence Abroad) Act is invalid. The only ground argued in support of this order was the same as that relating to the resolution of Parliament. The Act is not limited, as was the resolution, to the situation which had arisen in relation to Vanuatu and the proposal to send members of the defence force there. The Act makes provision for the particular procedures to be followed on all cases when the approval of Parliament is to be sought for the presence of the defence force in another country. It goes on to provide for procedures to be followed subsequent to the grant of Parliamentary approval. It implements the Constitution, ss. 205 and 206. The Act is governed by the provisions of s. 1 which section is not effective until such time as there is a National Executive Council proposal which needs Parliamentary approval. Counsel for the petitioner conceded that if such a proposal were made in circumstances where the defence force was being sent out of the country in order to carry out one of the functions enumerated in s. 202, then the constitutional validity of the Act could not be impugned. He therefore sought some alternative form of declaration to the effect that the Act did not authorize Parliament to approve the commitment of the defence force abroad unless it was for the purpose of carrying out one or more of the functions under s. 202. I would decline to make such a declaratory order, in the exercise of discretion, it not being clear exactly what order is sought, to whom it is addressed (if anyone) and what purpose it is to achieve. The court’s expression of its views as to the law are to be read in and from its judgments and do not need necessarily to be embodied in the form of declaratory orders.
(By majority) The ultimate relief sought in the petition, namely, a declaration that the committal of the troops to Vanuatu was unconstitutional, is refused.
Solicitor for the petitioner: Peter D. Donigi.
(arguing the affirmative case)
Intervener, by leave, as Principal Legal Adviser: C. Maino-Aoae.
(arguing the negative case)