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In the Matter of the Organic Law on National Elections (Amendment) Act 1981 [1982] PGSC 25 (5 March 1982)

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

S.C.R. 2 OF 1982 (No.1)

IN THE MATTER of the Constitution of Papua New Guinea

AND

IN THE MATTER of the Organic Law on National Elections (Amendment) Act 1981

AND

IN THE MATTER of a Special Reference by the Ombudsman Commission under s.19 of the Constitution.

Kidu, C.J.
Kearney, Dep. C.J.
Greville Smith, J.
Kapi, J.

Friday 5th March 1982

Constitution- special reference under s. 19(3) –

whether the Organic Law on National Elections

(Amendment) Act 1981 is invalid

Constitution – s.14

Question referred:

"Is the Organic Law on National Elections (Amendment) Act 1981, invalid, in that it was not made in the manner and form required by Section 14(1)(2)(4) and (5) of the Constitution?"

ORDER OF THE COURT:

That the question be answered: "Yes".

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

WAIGANI NATIONAL CAPITAL DISTRICT

S.C.R. 2 OF 1982 (No.1)

IN THE MATTER of the Constitution of Papua New Guinea

AND

IN THE MATTER of the Organic Law on National Elections (Amendment) Act 1981

AND

IN THE MATTER of a Special Reference by the Ombudsman Commission under s.19 of the Constitution.

Kidu, C.J.
Kearney, Dep. C.J.
Greville Smith, J.
Kapi, J.
3, 4 & Friday 5th March 1982

BY THE COURT: The Ombudsman Commission seeks an advisory opinion from this Court under the provisions of Constitution s.19 (3) whether a certain law recently made by the National Parliament is valid under the Constitution.

The law in question is Act No. 46 of 1981; its short title is "Organic Law on National Elections (Amendment) Act 1981". The National Parliament made this law on 24 November 1981. The Act amends s.86(c) of the Organic Law on National Elections. It has the effect that a candidate for election to the National Parliament must deposit K1000. Previously the deposit required was K100.

The Ombudsman Commission has raised 3 questions each one of which queries the validity of this Act for a different reason. We heard argument from counsel for the Ombudsman Commission, the Principal Legal Adviser, and counsel for the National Parliament over the last 3 days.

One question queries whether the Act infringes the special right of citizens under Constitution s.50 to stand for elective public office, by denying them reasonable opportunity to stand. The second question queries whether the Act discriminates amongst citizens on the basis of wealth, amounts to denying them an equal right to stand for Parliament, and is therefore contrary to Constitution s.55 which provides for all citizens to have the same rights. The arguments on these questions have been wide-ranging, require careful consideration, and cannot be resolved quickly.

The third question is whether the Act is invalid because it was not made in the manner and form which the Constitution requires. Here the argument has bee much more confined, and the answer is, in the opinion of all the members of the Court, very clear.

Quite simply s.86(c) is a provision of an Organic Law. Whether or not s.86(c) may be altered by a simple majority or only by a special majority, it must, like any Organic Law, be altered only by the special procedure laid down in Constitution s.14. This procedure was not followed when the Parliament made Act No.46 of 1981. It follows that Act No.46 of 1981 is a nullity, and has no legal effect, because it was made in a manner not allowed by the Constitution.

The result of the Court's decision is that an intending candidate for election cannot be required to pay K1000 as a deposit on nomination; he has to pay K100 as a deposit, as required by s.86(c) of the Organic Law.

The Court has taken the unusual step today of giving an opinion under Constitution s.19 (3) immediately, without detailed reasons, and without answering all the questions posed. That is for 2 reasons. First, the answer to the third question is sufficient to show that Act No.46 of 1981 is invalid as unconstitutional. Second, the general election is to be held very soon, and it is clearly in the public interest that it be known at the earliest possible date that an intending candidate does not need to deposit K1000.

The Court will answer in due course with full reasons, all the questions posed.