SC2483

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF 1 OF 2021 (IECMS)

SPECIAL REFERENCE PURSUANT TO CONSTITUTION
SECTION 19

SPECIAL REFERENCE BY LESLIE MAMU
as the PUBLIC SOLICITOR of Papua New Guinea

In the matter of the Interpretation and Application
of sections 37 and 57 Constitution and the
constitutionality of the Claims By and
Against the State Act, 1996

Waigani: Kandakasi DCJ, Gavara Nanu J, Batari J, David J and Hartshorn J
2023: 25th April, 30th October

SUPREME COURT SPECIAL REFERENCE – constitutional reference filed by public solicitor under s19 constitution – reference raises 26 questions arising out of two decisions of the Supreme Court - questions are claimed by the referrer to concern amongst others, the interpretation of sections in the Constitution concerned with Basic Rights and their enforcement and the Administration of Justice – questions referred categorized as nature of human rights in Papua New Guinea and how they are placed in relation to other common law and statutory rights - How long does a reasonable time mean under s.37(3) in relation to criminal trials - the constitutionality of the Claims By and Against the State Act, 1996 (Claims Act) and provisions therein - whether this Reference is an abuse of process? – Reference seeks to have this Court review two final decisions of the Supreme Court - is an improper use of the processes of the court – referrer seeks relief which the Court does not have the power to grant - a review of a final Supreme Court decision – reference filed is without merit and is an abuse of process – questions posed are vexatious – court declines to answer

Cases Cited:
Regina v. Abia Tambule and Ors [1974] PNGLR 250
Premdas v. The State [1979] PNGLR 329 
Brown v. The State [1993] PNGLR 430
Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628
In re Constitution s.19(1) - Special Reference by Allan Marat; In re Constitution s.19(1) and 3(a) - Special Reference by the National Parliament (2012) SC1187 Paru Aihi v. Peter Isoaimo and Ors (2013) SC1276 
Eremas Wartoto v. The State (2015) SC1411
Michael Wilson v. Clement Kuburam (2016) SC1489 
Dekena v. Kuman (2018) SC1715 
Jacob Sanga Kumb v. Dr Nicholas Mann and Anor (2018) SC1710 
Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814
Kohu Morea v. The State (2020) SC1957
Special Reference by Leslie Mamu (2020) SC2091
Special Reference by the Honourable Davis Steven (2020) SC2041 
State v. Nimbituo (2020) SC1974
State v. Siune (2021) SC2070 
Independent State of Papua New Guinea v. Jim Wala Tamate (2021) SC2132
Philip Kaman v. The State (2022) SC2329 
Commander of Beon Correctional Institution v. Katherine Mal (2022) SC2186
Independent State of Papua New Guinea v. Uddin (2022) SC2312 
Special Reference by the Honourable Davis Steven (2023) SC2344
Kaluwin v. Haiveta (2023) SC2384 

Counsel:
Mr. L. Mamu, Mr. T Aisi and Mr. L. Giyomwanauri, for the Referrer
Mr. T. Tanuvasa and Mr. H. Wangi, for the Intervener

30th October 2023

1. KANDAKASI DCJ:	This is a constitutional reference filed by the Public Solicitor under s. 19 (1) of the Constitution.  The reference raises 26 questions (“questions”) following two Supreme Court decisions, namely The State v. Nimbituo (2020) SC1974, per Kirriwom J (as he then was), Hartshorn and Kariko JJ and The State v. Siune (2021) SC2070, per Kandakasi DCJ, Thompson J (as she then was) and Berrigan JJ.

2. The above cases went to the Supreme Court out of two different National Court decisions.  Those decisions upheld human rights applications under s. 57 of the Constitution with various reliefs which went against other equally important provisions of the Constitution and other written laws.   The above decisions arrived at the same conclusion that human rights are not superior but are subject to the Constitution and other written laws.  

The Questions Presented

3. The draft decision of my brother Judges, which I had the benefit of reading, correctly categorises the questions referred into three categories, which I rephrase as follows:

(a)	Human rights under the Papua New Guinea (PNG) Constitution are superior to other common law and statutory rights.

(b)	How long is a reasonable time under s.37 (3) of the Constitution in a criminal case?

(c)	The Claim By and Against the State Act 1996 (State Claims Act) is unconstitutional. 

Considerations of the law 

4. The third category of questions are dependent on a yes or affirmative answer to the first category of questions.  Hence, a discussion of the first category and a decision on that category of questions will apply to the third category.  In view of that, it will not be necessary to deal with the third category of questions separately. It will rise or fall with the first category.

5. Turn then to the questions or issues I agree with their Honours that, this reference is clearly an abuse of the special constitutional reference process under s. 19 (1) of the Constitution for the reasons given by their Honours.  It is also an abuse of process and the special privilege and or right given to the Public Solicitor under s. 19 (3) for an additional reason, which I will shortly give.  

6. It is important for us to consider the kinds of situations in which each of the persons listed under s. 19 (3) of the Constitution are authorised to file constitutional references.  The provisions relevantly read:

“19. Special references to the Supreme Court. 

(1)	Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law. 

(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court. 
(3) The following authorities only are entitled to make application under Subsection (1):-
(a) the Parliament; and 
(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and 
(c) the Law Officers of Papua New Guinea; and 
(d) the Law Reform Commission; and 
(e) the Ombudsman Commission; and 
(ea) a Provincial Assembly or a Local-level Government; and 
(eb) a provincial executive; and 
(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and 
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).” 

7. The first thing I notice is that the list is restricted by using the word “only” before going on to list the authorities that are authorised.  There is no room left for any court or anyone to extend the list to include any other authorities or person.  Those on this list therefore need to carefully consider what is that they wish to go to the Supreme Court with, under this provision.  This is necessary to ensure that the Supreme Court’s limited resources are not wasted on frivolous and vexatious matters.  

8. The answer to what kinds of cases should be referred to the Supreme Court by the authorities enumerated under s. 19 (3) is answered by s. 19 (1) of the Constitution.  Section 19 (1) restricts the kinds of cases that can be brought to the Supreme Court by any of the authorities under s. 19 (3) to cases in which:
“any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.”
arises, and not otherwise.

9. Having regard to the relevant decisions of the Supreme Court on point and the provisions s. 19 (1), (2) and (3) as well as s. 18 (1) and (2) of the Constitution, three kinds of cases can be brought under these provisions. Injia CJ (as he then was) in his decision in In re Constitution Section 19(1) - Special reference by Allan Marat & In re Constitution Section 19(1) and 3(a) - Special reference by the National Parliament (2012) SC1187 identified the three categories and the effect of a decision made as follows:

“70.	… there are three types of cases that may be brought under s19. An opinion given in any of those types of cases is a binding opinion. The first type is one that simply seeks an opinion as to the meaning of a provision of a Constitutional law, without its application to any particular actions of the legislature, executive or the judiciary….

71.	The second type involves determination of questions as to interpretation and application of a constitutional law, to a law or proposed law. The third type are those cases that involve application of that determination of constitutional principle to the facts before the Court, if any, real or hypothetical, as the case may be.”

10. Section 19 (2) clearly states that all, interpretations, opinions, and applications given by the Supreme Court are binding.  All persons concerned must thus, observe and act accordingly.  It should necessarily follow that, the process available under s. 19 (1), is only for the interpretation and or application of a Constitutional provision that has not yet been considered, interpreted and or applied by the Supreme Court.   Where that has already taken place, the relevant decisions of the Supreme Court are binding authorities. Consequently, they are not open for further argument or challenge except strictly in accordance with the principles which govern any departure from earlier decisions of the Supreme Court.

11. Thus, it should be clear that, before filing an application under s. 19 (1) or s. 18 (1), the applicant or the authorities under s. 19 (2) of the Constitution have a duty to ensure that the question or issue they wish to file with the Court is not one that has been the subject of a prior reference and or published decision of the Supreme Court.  If the provision in question has been the subject of a prior decision, the relevant applicant or the relevant authority is required to ensure the principles governing any departures from prior decisions of the Supreme Court are met. 

12. The principles governing any departure from any precedent or binding decisions of the Supreme Court are well settled.  In my decision in the matter of Paru Aihi v.  Peter Isoaimo & Ors (2013) SC1276, with his Honour, Yagi J., agreeing, I considered the relevant judgments on point such as the decision in Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission, (1999) SC628, per Amet CJ., Kapi DCJ., Woods, Los, Sheehan, Sakora and Sevua JJ. I then summarised the relevant principles at [27] in these terms:

“A careful consideration of the above authorities makes it clear that:

(a) the Supreme Court is not bound by its own earlier decisions;

(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;

(c) departures within a short space of time is undesirable and should not be encouraged; and

(d) departures are permissible only in exceptional circumstances where:
(i) the earlier decision clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction;
(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and
(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”

13. These summations of the relevant principles have been adopted and applied in several subsequent decisions of the Supreme Court. See for example Dekena v. Kuman (2018) SC1715, per Kandakasi DCJ, Geita and Lindsay JJ; Jacob Sanga Kumb v. Dr Nicholas Mann & Anor (2018) SC1710, per Kandakasi J (as I then was) and Yagi and Bona JJ; Independent State of Papua New Guinea v. Uddin (2022) SC2312, per Salika CJ, Murray and Anis JJ.

Application of the law to the present case

14. In the present case, the issue of human rights and where it sits in the Constitutional architecture of our Constitution has been the subject of numerous Supreme Court decisions.  The Human Rights Track of the National Court has adopted a practice that seems to place human rights higher and up above all laws of the land including, provisions of the Constitution.   The State brought a few appeals against that practice and succeeded in each of the cases.   Through those decisions, the Supreme Court has clearly and repeatedly answered the first two category of the questions presented in this reference.  

15. In respect of the first category the decisions in The State v. Siune (supra); Commander of Beon Correctional Institution v. Katherine Mal (2022) SC2186, per Kandakasi DCJ, Makail and Anis JJ; Independent State of Papua New Guinea v Jim Wala Tamate (2021) SC2132, per Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ; Eremas Wartoto v. The State (2015) SC1411, Injia CJ, Kirriwom, Sakora, Kandakasi JJ (as we then were) and Davani J, are relevant.  These decisions stand for the propositions that:

(a)	The power of the Court to make orders under s 57(3) of the Constitution for the enforcement of human rights are necessary or appropriate to enforce compliance with a person’s guaranteed rights and freedoms, but is not an unlimited power, and is one which must be exercised lawfully and in accordance with judicial principles. 

(b)	The powers vested in the Courts by s 57 are not absolute, superior or unlimited but are in addition to and not in derogation of powers and are therefore not superior to and or do not override the powers, functions and process provided for under the Constitution or an Act of Parliament, rules and regulations enacted and operating or functioning under a valid authorisation or empowerment by the Constitution.

(c)	Proceedings under s. 57 of the Constitution and O.23, r.8 of the Human Rights Rules are civil in nature and as such are not available and cannot be utilised outside the criminal justice process and procedure. Any proceedings issued outside the correct criminal process in criminal cases would amount to an abuse of process of the Court. Eremas Wartoto v. The State (2015) SC1411 adopted and applied.

(d)	A convicted prisoner can only seek a review of his decision on penalty and sentence through the processes of appeal or reviews.  No Judge or Court has any power to invoke the provisions of s. 57 to effectively review any sentence and order early release of prisoners.  That is the function of other authorities prescribed by law such as the Correction Services and Parole Board.

16. As for the second main category of questions in this reference, the phrase “trial within a reasonable time” has been considered, referred to and or applied in several cases.  This includes the decisions in Regina v. Abia Tambule & Ors [1974] PNGLR 250; Brown v. The State [1993] PNGLR 430; Premdas v. The State [1979] PNGLR 329; Kohu Morea v. The State (2020) SC1957and Kaluwin v. Haiveta (2023) SC2384. 

17. These decisions are binding and good law until the Supreme Court in a considered decision chooses to depart from all or any of these precedents. Such departures of course, can only happen through a properly pleaded reference or application either under s. 18 (1) or 19 (1) of the Constitution, which meets the requirements for the Court to depart from its prior decisions or precedent.  

18. The reference before us fails to plead with sufficient particulars and clarity the basis on which the Applicant is inviting this Court to depart from the earlier decisions. The pleadings fail to provide any foundation either expressly or by implication as to why the Court should effectively revisit and depart from its earlier decisions.  In the absence of any pleadings and submissions to the contrary, I repeat the same questions I asked in Special Reference by the Ombudsman Commission of Papua New Guinea (2019) SC1814, at [111]:

“…Secondly, the question of failing an election was the subject of the Supreme Court decision in the Reference by Francis Damem. Hence, the question necessarily arises as to how there can be a reference on the same question. Has there been a change in the law or the circumstances that warrants a repeat reference? How, is this reference different to the earlier reference? What is it that is not clear from the decision in the earlier reference that a further reference is warranted?”

19. It is obvious therefore that, the applicant has failed to properly invoke the jurisdiction of this Court under s. 19 (1) of the Constitution to interpret and or apply a Constitutional provision or question that has not yet been answered by the Supreme Court.

Final decision and orders

20. For these reasons I would order a dismissal of the proceedings for an abuse of process and order costs against the referrer to be taxed, if not agreed. 

21. GAVARA NANU J, BATARI J, DAVID J and HARTSHORN J: In this Special Reference (Reference) brought pursuant to s.19 Constitution, the Public Solicitor of Papua New Guinea is the referrer. The Attorney General of Papua New Guinea is the only intervener. The referrer requests this Court to provide an opinion on 26 stated questions (questions). These questions are claimed by the referrer to concern amongst others, the interpretation of sections in the Constitution concerned with Basic Rights and their enforcement and the Administration of Justice.

22. The referrer submits that the questions fall into three broad categories being:

a)	The nature of human rights in Papua New Guinea and how they are placed in relation to other common law and statutory rights;

b)	How long does a reasonable time mean under s.37(3) in relation to criminal trials;

c)	The constitutionality of the Claims By and Against the State Act, 1996 (Claims Act) and provisions therein.

23. The intervener submits amongst others, that the questions are frivolous, vexatious, hypothetical and superfluous. Further, the intervener submits that the Reference is an abuse of process. Consequently, it is submitted that the Court should decline to answer the questions.

24. The referrer submits that the Reference is prompted by two judgments in two appeals of the Supreme Court. Those appeals are State v. Nimbituo (2020) SC1974 and State v. Siune (2021) SC2070. In Nimbituo, the State appealed against a National Court decision which awarded damages for infringements of human rights to be paid by the State. The Supreme Court upheld the appeal as the National Court proceeding was prima facie incompetent because of a failure to comply with s. 5(1) Claims Act. The referrer represented the respondents in Nimbituo. In Siune, the Supreme Court made several interpretations concerning the jurisdiction of the courts in respect of ss. 37 and 57 Constitution. The referrer represented the respondent in Siune.

Abuse of process

25. We consider first whether this Reference is an abuse of process.

26. The intervener submits that the Reference is an abuse of process as it is an attempt to in effect review two final decisions of the Supreme Court. This is demonstrated by submissions of the referrer which are adversely critical of the decisions in Nimbituo and Siune. Section 19 Constitution does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders. Further, the questions in the Reference are vexatious and the referrer does not have a genuine need for their clarification.

27. The referrer submits that it is not his intention to seek to review the decisions in Nimbituo and Siune. Further, he is entitled to bring this Reference pursuant to s.19(3)(c) Constitution.

Consideration

28. It is not controversial that this Reference was filed because of the decisions in Nimbituo and Siune. The Reference at [2] sets out the facts and decision in Nimbituo and then comments on the decision in Siune. Further, in submissions the referrer states that the Reference is prompted by the judgments in Nimbituo and Siune.

29. At [2(g)] of the Reference, concerning the decision in Nimbituo, it is stated:

“No order was made by the Supreme Court to ensure the human rights of the Accused’s were protected and enforced.”

30. In his submissions, the referrer states in regard to Nimbituo at [18]:

“On appeal to the Supreme Court against the award of damages, the Court upheld the argument that a statute law was not complied with, and quashed the National Court decision leaving the prisoner without remedy although he had proven his case of breach of his constitutional rights.”

31. At [112] in his submissions, the referrer states:

“A clear example of the effect of this regulation or restriction is the unfortunate outcome of Roger Bai Nimbituo’s human rights application in Nimbituo.”

32. The statements in the Reference and submissions are in effect questioning and impugning the decision in Nimbituo. Similar statements which impugn Nimbituo are contained in [29] to [31], [49] and [107]. There are also statements in the submissions which impugn the decision in Siune at [42], [49], [62], [63], [82], [83], [85] to [87], [96] and [107].

33. By making the statements referred to which impugn the decisions in Nimbituo and Siune, together with seeking answers to the questions, which answers are in some respects, contrary to the decisions in Nimbituo and Siune, the referrer is requiring this Court to review the decisions in Nimbituo and Siune and make orders contrary to Nimbituo and Siune.

34. That the Supreme Court does not have the jurisdiction to hear an appeal from another Supreme Court and does not have the inherent power to review all or any judicial acts of the Supreme Court was referred to in Special Reference by the Honourable Davis Steven (2020) SC2041 by Hartshorn J (whose decision was unanimously agreed to by Salika CJ, Manuhu, Makail and Anis JJ at [11] to [13]) and Special Reference by the Honourable Davis Steven (2023) SC2344 at [14]. Further, in Philip Kaman v. The State (2022) SC2329, the Supreme Court (Manuhu, Kariko and Murray JJ), in a purported application brought pursuant to s.  155(4) Constitution, held that the Supreme Court cannot review a final decision of another Supreme Court. 

35. At [10] of Special Reference by the Honourable Davis Steven (2020) SC2041 it is stated:

 “10. There are no Constitutional or any other laws that have conferred other jurisdiction or power on the Supreme Court which affect or are superior to those conferred by s. 155 (2)(a) and (b). Section 19, for instance, pursuant to which this Special Reference is brought, confers jurisdiction to the Supreme Court to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, but it does not confer a superior jurisdiction to that provided in s.155 (2)(a) and (b). Section 19 does not confer upon the Supreme Court the jurisdiction or power to hear an appeal or a review of final Supreme Court judgments and orders.”

36. To improperly use the processes of the court has been held to be an abuse of process. In Michael Wilson v. Clement Kuburam (2016) SC1489, Gavara Nanu J stated at [35] that:

“The types of abuses of process may vary from case to case but to establish an abuse of process there must be evidence showing that the processes of the court have been improperly used; or have been used for an improper purpose; or have been used in an improper way; or that such abuse of process have resulted in the right of the other party being denied, defeated or prejudiced: National Executive Council v. Public Employees Association [1993] PNGLR 264 and The State v. Peter Painke [1976] PNGLR 210.”

37. The remarks of Gavara-Nanu J have been cited with approval in numerous Supreme Court cases including in Special Reference by Leslie Mamu (2020) SC2091 (Kandakasi DCJ, Manuhu, Makail, Kariko and Miviri JJ) in which the Court found that the Reference before it had been incorrectly invoked and was an abuse of process. The remarks of Gavara-Nanu J were also cited in Special reference by the Honourable Davis Steven (2023) SC2344 at [15]. In that case the Court found that the Special Reference in seeking to in effect, review or appeal final decisions of the Supreme Court was an improper use of the processes of the court and was an abuse of process.
38. In this instance, we are of the view that this Reference, in seeking to in effect, have this Court review two final decisions of the Supreme Court, is an improper use of the processes of the court and is an abuse of process. This is particularly so when what in effect is sought is relief which this Court does not have the power to grant - that is a review of a final Supreme Court decision.
39. Further, we are of the view that the referrer has an ulterior or improper motive in prosecuting this Reference which is to seek to impugn two final decisions of the Supreme Court. The questions are vexatious and so pursuant to Order 4 Rule 18 Supreme Court Rules this Court should decline to give an opinion on the questions. Given the above it is not necessary to consider the other submissions of counsel.

Orders
a)	This Reference is an abuse of process.
b)	The questions posed are vexatious and this Court declines to answer them.
c)	The referrer shall pay the costs of the intervener of and incidental to this 	Reference to be taxed if not otherwise agreed.
__________________________________________________________________
Public Solicitor: Lawyers for the Referrer 
Solicitor General: Lawyers for the Intervener