Papua New Guinea Law Reports - 1982
[1982] PNGLR 405
SC242
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 3 OF 1982. IN THE MATTER OF AN APPLICATION BY THE PUBLIC SOLICITOR PURSUANT TO SS. 57 AND 155(4) OF THE CONSTITUTION
AND IN THE COMMISSIONER OF CORRECTIONAL SERVICES
Waigani
Kidu CJ Kapi DCJ Bredmeyer J
17 July 1982
17 December 1982
CONSTITUTIONAL LAW - Constitutional reference - “When” any question of interpretation or application of any Constitutional Law arises - Findings of fact to be made by court or tribunal referring question - Constitution, s. 18(2).
PRACTICE AND PROCEDURE - Constitutional reference - Interpretation or application of any Constitutional Law - “When” question arises - Findings of fact to be made by court or tribunal referring question - Constitution, s. 18(2).
Section 18(2) of the Constitution, provides that where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal, shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of the proceedings) is appropriate.
Held
In matters referred under s. 18 all findings of fact necessary for the interpretation or application of a Constitutional Law must be made by the court or tribunal before making the reference; until this is done it cannot be said that any question relating to the interpretation or application of any provision of a Constitutional Law has arisen in any court or tribunal.
Cases Cited
S.C.R. No. 5 of 1982; Re petition of Hugo Berghauser (1982) P.N.G.L.R. 379.
Reference
This was a reference to the Supreme Court, purporting to be made under s. 18(2) of the Constitution, of matters raised by virtue of ss. 57 and 155(4).
Counsel
N. R. P. Kirrowom and S. J. Cox, to argue the affirmative case.
G. M. H. Delaney, to argue the negative case.
P. V. Young, for the State Solicitor.
Cur. adv. vult.
17 December 1982
KIDU CJ KAPI DCJ BREDMEYER J: This Reference was heard in July, 1982. We adjourned sine die to consider the questions referred to us by the National Court.
It is unfortunate that parties had to wait for four months for the decision of the court. However, we have been extremely busy this year because of extra work that we had not expected both in the National Court and in the Supreme Court.
The Reference, in our opinion, was premature because we hold the view that certain findings of fact should have been made by the National Court before the Reference was embarked upon.
There is no evidence or finding of fact as to what the detainees mentioned in the petition of the Public Solicitor wanted to see him about. The Public Solicitor should have had some or all of these detainees called under s. 21 of the Corrective Institutions Act 1957 to give evidence as to why they wanted to see him. For all we know some of them, or all of them, might have been seeking legal advice because they had been charged with V.J. offences under the Corrective Institutions Act. If that was so, then there is no question about their right to have access to lawyers. This right is guaranteed by s. 42 of the Constitution.
It might also have been that some or all of these detainees wanted to see the Public Solicitor to give instructions in order to appeal against decisions either by the National Court or the District and Local Courts. If this were so then there is no question about their right to appeal to a higher court. This right is entrenched by s. 37(15) of the Constitution. It might be, as was boldly put to us from the bar table by counsel, that these people all wanted to talk to the Public Solicitor to give instructions on non-criminal and non-appeal matters. We simply do not know why they wanted to see the Public Solicitor.
The Constitution has laid down two different procedures for interpretation of the Constitutional Laws by the Supreme Court. One is a request for an advisory opinion by certain authorities under s. 19 of the Constitution. In references made under this section, questions asked may be hypothetical. And this is made quite clear by the Constitutional Planning Committee Report. We quote from Ch. 8 of the Constitutional Planning Committee Report, pp. 8/16 and 8/17:
150.    ADVISORY OPINIONS.
A common device to get round the technical rules which restrict access to courts (as well as for other objectives) is to vest the jurisdiction to give advisory opinions on Constitutional issues in the Courts. Under such a procedure specified bodies are authorised to refer a matter to the court for its opinion. It is not always necessary that a dispute should have arisen; an institution may wish to have an authoritative ruling on a constitutional point before embarking on a particular piece of legislation or a certain policy. It is flexible in that a party or parties can define clearly and precisely the issues on which they need a ruling, and yet the ruling is, strictly speaking, not binding.
152.    Experience in countries which do permit Judicial advisory opinions shows that such criticisms are not justified. In any case, we consider that the advantages out-weigh disadvantages and we recommend that provision be made for the Supreme Court to give an advisory opinion on any matter concerning any provision of the Constitution, including its implementation and enforcement.
153.    We envisaged advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a Constitutional provision or the executive to establish what a law on a particular Constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravative and the parties take strong and inflexible positions. It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.
Section 18(1) of the Constitution provides that the Supreme Court has original jurisdiction to the exclusion of any other courts as to the questions relative to interpretation or application of Constitutional laws. It also provides in s. 18(2) that where a question relating to interpretation or application of a Constitutional Law arises in a court or a tribunal other than the Supreme Court itself, unless the question is trivial, vexatious or irrelevant, the court or tribunal is to refer that question to the Supreme Court for a ruling.
We do not consider that s. 18(2) allows hypothetical questions to be referred by lower tribunals to the Supreme Court. This situation is within the ambit, as we have stated, of s. 19.
We are of the opinion that a question which is referred to the Supreme Court must arise out of a factual situation established by the lower court or tribunal. We refer to S.C.R. No. 5 of 1982; Re petition of Hugo Berghauser [1982] P.N.G.L.R. 379. This was a case referred by the National Court to the Supreme Court relating to certain constitutional questions which arose during the course of hearing of an election petition. The question referred related to the age of a candidate for election. In that case, there had been no finding of facts by the National Court as to whether the man involved had in fact been under the age of twenty-five or more than the age of twenty-five. In that case, the matter was sent back to the National Court for findings of fact to be made and if necessary to refer the question back to the Supreme Court.
In this case there are no established facts as to whether the detainees who had requested the Public Solicitor wanted to appeal against their convictions; nor is there evidence whether they wanted to give instructions to the Public Solicitor because they had been charged with further criminal offences or whether they wanted to see the Public Solicitor to give instructions to take action on non-appeal or non-criminal matters. If this Court were to consider the questions referred, a lot of speculation would have to be made by the court or assumptions made by the court as to what the actual state of facts are in this Reference. For instance, we would have to speculate or guess that what the prisoners wanted to see the Public Solicitor about are non-criminal and non-appeal matters. There is absolutely no evidence that that is so.
In Constitutional matters referred under s. 18 of the Constitution, it is our view that all findings of fact necessary for interpretation or application of a Constitutional Law must be made by the court or tribunal before making the reference. Until this is determined, it cannot be said that any question relating to the interpretation or application of any provision of a Constitutional Law has arisen in any court or tribunal. In this case no such findings have been made and we propose to remit this matter back to the National Court.
Matter referred back to the National Court.
Solicitor for the affirmative case: Public Solicitor.
Solicitor for the negative case: The Principal Legal Adviser of the National Executive.
State Solicitor: B. O. Emos.