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Application by Apeo Fuata Sione [2025] PGSC 2; SC2679 (6 January 2025)

SC2679

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCA NO 3 OF 2023

IN THE MATTER OF AN APPLICATION PURSUANT TO
CONSTITUTION, SECTION 18(1)

APPLICATION BY APEO FUATA SIONE

WAIGANI: SALIKA CJ, KANDAKASI DCJ,
CANNINGS J, HARTSHORN J, MAKAIL J

18 DECEMBER 2024; 6 JANUARY 2025

CONSTITUTIONAL LAW – BASIC RIGHTS – Constitution, s 50 (right to vote and stand for public office) – whether amendments to s 55 (persons who have resigned from the public service to become candidates at elections) of the Public Services (Management) Act 1995 are valid – whether laws amending s 55 were regulating the exercise of rights in s 50(1) of the Constitution and were reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind – Constitution, s 50(2).

PRACTICE & PROCEDURE – constitutional applications and references – burden of proof of invalidity of a law – whether laws amending Public Services (Management) Act are laws that regulate or restrict the exercise of rights in s 50(1) of the Constitution – whether a law regulating or restricting exercise of human rights has to meet requirements of s 38 of the Constitution.

The applicant sought declarations that two amendments to s 55 of the Public Services (Management) Act 1995 are unconstitutional as they unlawfully restrict the right of officers of the National Public Service under s 50(1)(d) of the Constitution to stand for elective public office. Section 55 in its original form gave officers who resigned to become a candidate at an election and failed to be elected, a right to be reappointed to the Public Service. The first amendment to s 55, made by the Public Services (Management) (Amendment) Act No 5 of 2020, removed the right of reappointment and replaced it with a right to apply for reappointment. The second amendment to s 55, made by the Public Services (Management) (Amendment) Act No 11 of 2021, qualified the right to apply for reappointment by providing that the officer may apply for reappointment after a period of five years from the date of the election they contested in. The applicant argued that the first amendment was made by a law that failed to comply with the manner and form requirements of s 38 (general qualifications on qualified rights) of the Constitution, and was invalid for that reason alone. He argued that the law by which the second amendment was made came closer to complying with the manner and form requirements of s 38 but gave insufficient reasons for the restriction on s 50 constitutional rights that it was imposing and therefore failed to comply with s 38, and was not a law that was reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind. The intervener, the Attorney-General, argued that both amendments were necessary to avoid politicisation of the Public Service and were reasonably justifiable and did not prohibit the exercise of the right of officers of the Public Service to be elected to elective public office.

Held:

(1) Laws which regulate or restrict the exercise of rights under s 50(1) of the Constitution do not have to comply with s 38 of the Constitution but must in accordance with s 50(2) be reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.

(2) The failure of the first amendment to comply with s 38 of the Constitution was inconsequential and its removal of the right of an officer who resigned to contest an election and was unsuccessful to be reappointed was reasonably justifiable. The first amendment was a valid regulation of the exercise of the right to be elected to elective public office.

(3) By requiring that an officer who resigned to contest an election and was unsuccessful wait five years after the election to apply to be reappointed to the Public Service, the second amendment was imposing an unwarranted and substantial disincentive to officers considering contesting an election which worked against the full and free exercise of the right of citizens to be elected to elective public office and was not reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind. The second amendment imposed an impermissible restriction on the exercise of the right conferred by s 50(1)(d) of the Constitution and was unconstitutional.

(4) Declared: the first amendment was valid; the second amendment was invalid.

Cases cited

Application by Hon Bill Skate MP (2001) SC678
Danaya v Wobiro [2013] 2 PNGLR 87
Namah v Pato (2016) SC1497
Premdas v The State [1979] PNGLR 329
Re Petition of M T Somare [1982] PNGLR 65
SC Ref No 1 of 1986, Re Vagrancy Act [1988] PNGLR 1
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319
SC Ref No 1 of 2024, Reference by National Court re Section 21(2) of the Cybercrime Code Act (2024) SC2608
SC Ref No 2 of 1984, Re New Ireland Provincial Constitution [1984] PNGLR 81
SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944
SC Ref No 2 of 2020, Reference by Bougainville Executive Re ss 89(2) and 91(4)(f) of the Bougainville Constitution (2020) SC1952
SC Ref No 6 of 1984, Reference by National Court re Provocation & Summary Offences Act 1977 [1985] PNGLR 31
SC Ref Nos 1 & 2 of 2012, Re Prime Minister and National Executive Council Act Amendments [2012] 1 PNGLR 74
Shaw v Commonwealth of Australia [1963] PNGLR 119
The State v NTN Pty Ltd [1992] PNGLR 1

Counsel

R M Simbil for the applicant
G Nindil & S Ako for the intervener

1. BY THE COURT: The applicant Apeo Fuata Sione is Chairman of the Public Services Commission. He has been declared to have standing to make an application under s 18(1) of the Constitution for declarations that two amendments to s 55 of the Public Services (Management) Act 1995 are unconstitutional as they unlawfully restrict the right under s 50(1)(d) of the Constitution of officers of the National Public Service to stand for elective public office.
   
2. Section 55 in its original form gave officers who resigned to become a candidate at an election and failed to be elected, a right to be reappointed to the Public Service. The first amendment to s 55, made by the Public Services (Management) (Amendment) Act No 5 of 2020, removed the right of reappointment and replaced it with a right to apply for reappointment. The second amendment to s 55, made by the Public Services (Management) (Amendment) Act No 11 of 2021, qualified the right to apply for reappointment by providing that the officer may apply for reappointment after a period of five years from the date of the election they contested in.
   
3. The applicant argues that the first amendment was made by a law that failed to comply with the manner and form requirements of s 38 (general qualifications on qualified rights) of the Constitution, and was invalid for that reason alone.
   
4. He argues that the law by which the second amendment was made came closer to complying with the manner and form requirements of s 38 but gave insufficient reasons for the restriction on s 50 constitutional rights that it was imposing and therefore failed to comply with s 38, and was not a law that was reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.
   
5. The Attorney-General, the Honourable Pila Niningi MP, has been granted leave to intervene in the proceedings. He argues that both amendments are necessary to avoid politicisation of the Public Service and are reasonably justifiable and do not prohibit the exercise of the right of officers of the Public Service to be elected to elective public office.
   

SECTION 50 OF THE CONSTITUTION

6. Section 50 (right to vote and stand for public office) is one of the human rights provisions contained in Division III.3 (Basic Rights) of the Constitution. It states:
   

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—

(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country,

has the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.

(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

7. Like all the human rights provisions in the Constitution (including those conferring fundamental rights, viz the right to life (s 35), the right to freedom from inhuman treatment (s 36) and the right to full protection of the law (s 37), s 50 does not confer absolute rights.
   
8. Section 50 confers on certain persons, certain rights, and provides for limitations on the exercise of those rights.
   
9. The rights conferred by s 50 are only enjoyed by persons who have all the following characteristics (prescribed by ss 50(1)(a), (b) and (c)):
   

• is a PNG citizen;
• is of full capacity (ie he or she is not of unsound mind, as per Schedule 1.2(1) of the Constitution);
• has reached voting age (which is 18 years of age, per s 126(3) (elections) of the Constitution);
• is not under sentence of death;
• is not under a sentence of imprisonment for a period of more than nine months;
• has not been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections (that is prescribed by an Organic Law or an Act of the Parliament for the purposes of s 50(1)(b));
• does not have dual citizenship of another country.
  

10. Those persons who hold s 50 rights have the following rights, and shall be given a reasonable opportunity to exercise them:
    

• to directly take part in the conduct of public affairs (s 50(1)(c)); and
• to take part in the conduct of public affairs through freely chosen representatives (s 50(1)(c)); and
• to vote for elective public office at genuine, periodic, free elections (s 50(1)(d)); and
• to be elected to elective public office at genuine, periodic, free elections (s 50(1)(d));
• to hold public office (s 50(1)(e)) and
• to exercise public functions (s 50(1)(e)).
  

11. It is the exercise of the right to be elected to elective public office at genuine, periodic, free elections under s 50(1)(d) that the applicant argues has been unlawfully restricted by amendments to s 55 of the Public Services (Management) Act 1995.
    

SECTION 55 OF THE PUBLIC SERVICES (MANAGEMENT) ACT 1995

12. In its original form s 55 stated:
    
    • (1) An officer–
      

(a) who resigned or retired from the Public Service in order to become a candidate for election to–

(i) the National Parliament; or

(ii) a Provincial Assembly; and

(b) whose resignation or retiral was effected–

(i) in the case of a general election to be held at the expiry of the normal term specified for the Parliament or Provincial Assembly–at least six months before and not more than 12 months before the issue of writs for the election; or

(ii) in the case of a general election other than one referred to in Subparagraph (i)–within two weeks of the vote occasioning the election; or

(iii) in the case of a by-election–within two weeks [of] the event occasioning the by-election; and

(c) who was a candidate at the election; and

(d) who failed to be elected,

shall, upon application by him within two months after the declaration of the result of the election, and subject to the results of any medical examination under Subsection (3), be re-appointed to the Public Service in such office as the Departmental Head of the Department of Personnel Management directs.

(2) An officer–

(a) who resigned from the Public Service in order to become a candidate for election to–

(i) the National Parliament; or

(ii) a Provincial Assembly; and

(b) whose resignation or retiral was effected other than in accordance with Subsection (1)(b),

shall not be re-appointed to the Public Service.

(3) A person to be re-appointed under Subsection (1) may, at the discretion of the Departmental Head of the Department of Personnel Management, be required to undergo medical examination.

(4) A person re-appointed under Subsection (1) shall be deemed to have continued in the Public Service as if he had not resigned or retired but had been on leave without pay during the period from the day on which his resignation became effective to and including the day immediately preceding the day on which he was re-appointed.

(5) The period referred to in Subsection (4) shall not be deemed to affect the continuity of the officer’s service but, unless otherwise determined by the Departmental Head of the Department of Personnel Management, shall not, for any purpose, form part of any officer’s service.

(6) The provisions of Part IX do not apply in respect of the re-appointment of a person under Subsection (1).

13. It will be observed that an officer who resigned from the Public Service to become a candidate at an election within the times prescribed by s 55(1) and failed to be elected, had a right (provided that they applied for reappointment within two months after the declaration of the result of the election and subject to the results of a medical examination) to be re-appointed to the Public Service in such office as the Departmental Head of the Department of Personnel Management directed.
    

THE FIRST AMENDMENT: THE PUBLIC SERVICES (MANAGEMENT) (AMENDMENT) ACT NO 5 OF 2020

14. Section 11 of Act No 5 of 2020 repealed the original s 55 and replaced it with the following new section:
    

(1) An officer (including a Departmental Head) who wishes to contest in a National or Local-level Government election must resign in order to stand as a candidate in the election by giving the required notice under this Act and the General Orders.

(2) An officer exercising the right to resign and stand for election must resign —

(a) in the case of a National Election, not less than six months before the writs are issued for the election; and

(b) in the case of a Local-level Government election, not less than one month before the issuance of the writs for the election.

(3) The office held by the officer at the time of resignation under this section becomes vacant and may be filled substantively or in an acting capacity by another officer.

(4) If the officer fails to win a seat in the election, the officer has no automatic right to be re-admitted to the Public Service but may apply for reappointment.

(5) The officer may exercise the option to leave the Service without receiving his service related terminated benefits and if re-admitted to the Public Service, having failed to win a seat, the period of absence is taken to be leave without pay.

15. It will be observed that the new s 55 removed the right of an officer who resigned from the Public Service and was an unsuccessful candidate for election, to be reappointed to the Public Service. It also provided that the office of the resigned officer becomes vacant and may be filled substantively or in an acting capacity by another officer.
    

THE SECOND AMENDMENT: THE PUBLIC SERVICES (MANAGEMENT) (AMENDMENT) ACT NO 11 OF 2021

16. Section 2 of Act No 11 of 2021 stated:
    

Section 55 of the Principal Act is amended –

(a) in Section 2(a) by deleting the word “six” and replacing it with the following: “twelve”; and

(b) in Subsection (4) by repealing the words “has no automatic right to be re-admitted to the Public Service but may apply for reappointment” and replacing it with the following:

“may apply to the Public Service after a period of 5 years from the National General Election he contested in”; and

(c) by repealing Subsection (5).

17. Section 55 now states (with the 2021 amendments in italics):
    

(1) An officer (including a Departmental Head) who wishes to contest in a National or Local-level Government election must resign in order to stand as a candidate in the election by giving the required notice under this Act and the General Orders.

(2) An officer exercising the right to resign and stand for election must resign —

(a) in the case of a National Election, not less than twelve months before the writs are issued for the election; and

(b) in the case of a Local-level Government election, not less than one month before the issuance of the writs for the election.

(3) The office held by the officer at the time of resignation under this section becomes vacant and may be filled substantively or in an acting capacity by another officer.

(4) If the officer fails to win a seat in the election, the officer may apply to the Public Service after a period of 5 years from the National General Election he contested in.

(5) [Repealed].

18. It will be observed that the 2021 amendments to s 55:
    

• increase from six months to 12 months the period before the writs for a national election are issued by which an officer who wishes to contest an election must resign;
  
• in effect suspend for five years the right of an officer who resigned to contest an election and failed to be elected, to apply for reappointment to the Public Service; and
  
• remove the right of an officer under s 55(5) who resigned to contest an election and failed to be elected and is reappointed to the Public Service, to have the period of absence after their resignation regarded as leave without pay.
  

THE APPLICANT’S ARGUMENT THAT THE 2020 AMENDMENTS ARE UNCONSTITUTIONAL

19. The applicant argues that the Public Services (Management) (Amendment) Act No 5 of 2020 fails to comply with the manner and form requirements of s 38 (general qualifications on qualified rights) of the Constitution, and is invalid for that reason alone.
    
20. He argues that the 2020 amendments to s 55 of the Public Services (Management) Act 1995 restrict or regulate the exercise by officers of the Public Service of the right in s 50(1)(d) of the Constitution to stand for elective public office and could only be made by a law that complies with s 38 of the Constitution.
    
21. He asserts that though there is no express reference to s 38 of the Constitution in s 50(2) of the Constitution, the requirement that the exercise of s 50 rights may only be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind means that there is an implied obligation to comply with s 38.
    
22. Section 38 (general qualification on qualified rights) states:
    

(1) For the purposes of this Subdivision, a law that complies with the requirements of this section is a law that is made and certified in accordance with Subsection (2), and that—

(a) regulates or restricts the exercise of a right or freedom referred to in this Subdivision to the extent that the regulation or restriction is necessary—

(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and persons under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others; or

(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,

to the extent that the law is reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind.

(2) For the purposes of Subsection (1), a law must—

(a) be expressed to be a law that is made for that purpose; and

(b) specify the right or freedom that it regulates or restricts; and

(c) be made, and certified by the Speaker in his certificate under Section 110 (certification as to making of laws) to have been made, by an absolute majority.

(3) The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

23. There are a number of cases in which the Supreme Court has been required to assess whether a law complies with s 38.
    
24. In The State v NTN Pty Ltd [1992] PNGLR 1 the Court found that the Television (Prohibition and Control) Act 1986, which prohibited television broadcasting in PNG until 31 January 1988, had to, but failed to comply with s 38.
    
25. In Application by Hon Bill Skate MP (2001) SC678 the Court found that amendments in 2001 to the National Capital District Commission Act 1990, which abolished the ex officio membership of the Commission of all members of Parliament including the applicant, Mr Skate, had to, but failed to comply with s 38.
    
26. In SC Ref No 1 of 1993 Reference by the Principal Legal Adviser re Section 365 of the Income Tax Act (1995) SC482 the Court found that s 365 of the Income Tax Act 1959, which authorised the Chief Collector of Taxes or authorised officers to have full and free access to all buildings, places, books documents and other papers for the purposes of the Act and seize, retain and remove or copy such books, documents or papers, did not have to comply with s 38; and this conclusion was driven by the wording of s 44 of the Constitution, which confers the right on all persons in PNG to freedom from arbitrary search and entry.
    
27. Those cases show that for a law to comply with s 38, it must satisfy three requirements arising from s 38(1).
    
28. First, the law must be made and certified in accordance with s 38(2).
    
29. Secondly, the law must:
    

(a) regulate or restrict the exercise of a right or freedom, only to the extent that the regulation or restriction is “necessary”—

“(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) defence; or

(B) public safety; or

(C) public order; or

(D) public welfare; or

(E) public health (including animal and plant health); or

(F) the protection of children and person under disability (whether legal or practical); or

(G) the development of under-privileged or less advanced groups or areas; or

(ii) in order to protect the exercise of the rights and freedoms of others”; or

(b) make “reasonable provision for cases where the exercise of one such right may conflict with the exercise of another”.

30. Thirdly, the regulation or restriction of the exercise of rights or freedoms (s 38(1)(a)) or the provision for cases where the exercise of one right may conflict with the exercise of another right (s 38(1)(b)) must only be to the extent that is “reasonably justifiable in a democratic society having a proper respect for the rights and dignity of mankind”.
    
31. The applicant’s counsel Mr Simbil acknowledges that s 38 is not mentioned in the provision that provides for regulation of the rights in s 50(1) of the Constitution. Section 50(2) states:
    

The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.

32. Mr Simbil points out that in Application by Hon Bill Skate MP (2001) SC678 the Supreme Court held that a law that regulates the exercise of s 50(1) rights does have to comply with s 38. We have carefully considered the decision in that case. Each of the three Judges who constituted the Court (Amet CJ, Injia J and Sawong J) did indeed indicate that a law regulating s 50(1) rights had to comply with s 38. We are not, however, bound by their Honours’ reasoning. It is a decision of the Supreme Court and is naturally of persuasive authority. However, under Schedule 2.9(1) of the Constitution a decision of the Supreme Court is not binding on itself and we respectfully decline to adopt that decision and the reasoning underlying it in this case.
    
33. It is not the case that every law that restricts or regulates the exercise of the human rights conferred by Division III.3 of the Constitution has to comply with s 38 of the Constitution (Premdas v The State [1979] PNGLR 329, SC Ref No 2 of 2018, Re Public Money Management Regularisation Act 2017 (2020) SC1944). It is only necessary to invoke s 38 when a section of the Constitution that confers a right expressly provides for its regulation or restriction by a law that complies with s 38.
    
34. It is clear in our view that effect must be given to the absence of any reference to s 38 in s 50, especially when it is considered that many of the other human rights provisions in Division III.3 of the Constitution expressly refer to it. For example, the following sections confer human rights but state that the exercise of the right may be regulated or restricted by a law that complies with s 38:
    

s 43 (freedom from forced labour),
s 44 (freedom from arbitrary search and entry),
s 45 (freedom of conscience, thought and religion),
s 46 (freedom of expression),
s 47 (freedom of assembly and association),
s 48 (freedom of employment),
s 49 (right to privacy),
s 51 (freedom of information); and
s 52 (right to freedom of movement).

35. We invoke the maxim of statutory interpretation expressio unius est exclusio alterius: the express mention of a thing (s 38) in some provisions (ss 43 to 49 and 51 and 52) implies that its absence in another provision (s 50) is deliberate (SC Ref No 6 of 1984, Reference by National Court re Provocation & Summary Offences Act 1977 [1985] PNGLR 31).
    
36. We find that a law that regulates the rights conferred by s 50(1) of the Constitution does not have to comply with s 38 of the Constitution.
    
37. Such a law, however, must satisfy the requirement, specified by s 50(2), that it be “reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind”.
    
38. In determining the issue of reasonable justifiability it is necessary to refer to s 39 (“reasonably justifiable in a democratic society”, etc) of the Constitution, which states:
    

(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.

(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.

(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—

(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the country; and

(g) laws, practices and judicial decisions and opinions in other countries; and

(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other similar organizations; and

(j) any other material that the court considers relevant.

39. It is also useful to consider how the issue of reasonable justifiability has been determined in previous cases, summarised in the following table.
    

CASES IN WHICH THE SUPREME COURT HAS DETERMINED WHETHER A LAW IS REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY HAVING A PROPER RESPECT FOR RIGHTS AND DIGNITY OF MANKIND

Principles to apply in determining the question of reasonable justifiability

40. When the express requirements of s 39 of the Constitution are read together with dicta of the Supreme Court in the above cases, the following principles emerge as to how the question, ‘are the restrictions on the right under s 50(1)(d) of the Constitution of officers of the Public Service to stand for elective public office imposed by the new s 55 of the Public Services (Management) Act introduced by the 2020 amendments to that Act, reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind?’, is to be determined:
    

• the question is to be determined in the light of the circumstances obtaining at the time when the question is being decided (Constitution, s 39(1));
  
• the test is an objective one in that the question whether the law is reasonably justifiable etc is asked of the reasonable person (SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214);
  
• the Court is not bound by the assessment of the Parliament or other legislative body that made the contentious law that the law is reasonably justifiable, rather the Court must make its own independent assessment of the question of reasonably justifiability (Namah v Pato (2016) SC1497);
  
• evidence as to the factual circumstances at the time the law was made will be relevant to understanding why the law was made and the assessment of its reasonably justifiability (SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319);
  
• the Court has discretion, but is not obliged, to have regard to the matters set out in s 39(3) of the Constitution (Constitution, s 39(3)).
  

41. As to the burden of proof, does the applicant bear the onus of proving that the 2020 amendment to s 55 of the Public Services (Management) Act is not reasonably justifiable? Or does the party relying on the validity of that law (the intervener) have the burden of proving that the law complies with that requirement?
    
42. The applicant argues that he is obliged only to establish a prima facie case and once he does that, the onus shifts to the intervener to prove, by adducing supporting evidence, that the law is reasonably justifiable; and the applicant emphasises that he is the only party who has adduced any evidence in this case, as the intervener has adduced no evidence at all.
    
43. We note that there is support for that approach in a number of cases. However, they are cases that involved s 38 of the Constitution, and s 38 contains subsection (3), which states:
    

The burden of showing that a law is a law that complies with the requirements of Subsection (1) is on the party relying on its validity.

44. We have decided that s 38 has no application in the present case, and that means that s 38(3) does not apply. The burden of proof is determined by the general principle that ‘the party who asserts must prove’ (Shaw v Commonwealth of Australia [1963] PNGLR 119, Re Petition of M T Somare [1982] PNGLR 65, Danaya v Wobiro [2013] 2 PNGLR 87). The applicant bears the onus of proving that the 2020 amendment is not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
    
45. We consider that that onus of proof has not been discharged. Resignation from any position necessarily entails a risk. In most situations, where an employee resigns, they will not automatically be reappointed to the position they held earlier if they change their mind and wish to be reemployed. Instead the employee will be required to apply to be re-employed in the same position they resigned from or in some vacant position in the organisation. The employer will have the right to decide whether to re-employ the former employee. Relevant factors for consideration will include whether the position is vacant, whether the skills and expertise of the former employee are required, whether the former employee is of good health and so on.
    
46. The original s 55 conferred a special privilege (the right to be reappointed if they lost the election) on officers of the Public Service that are not enjoyed by other citizens. Removing that privilege does not interfere with the exercise of the right to be elected. It simply puts officers of the Public Service in the same position as other persons considering standing for election.
    
47. When we consider the current circumstances of Papua New Guinea and the trend towards merit-based appointments to the Public Service, the privilege previously enjoyed by officers of the Public Service can be regarded as no longer appropriate. A relevant and important question is whether a reasonable person would consider it fair, reasonable and appropriate that officers of the Public Service who resign and unsuccessfully contest an election are in the same position as any other person who resigns from their job and then seeks later to be reappointed. It would be most unfair, unreasonable and inappropriate for officers of the Public Service who resigned to contest an election to have the right to be reappointed compared to other officers who resign for other reasons and later seek to be re-employed. That was the position the Parliament saw and decided to change by the first amendments to the Public Services (Management) Act.
    
48. We conclude that s 11 of the Public Services (Management) (Amendment) Act 2020 is a law that regulates the exercise of the right of a specific category of persons (officers of the Public Service) to be elected to elective public office, which is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. It is a law that is constitutional. It is not invalid.
    

THE APPLICANT’S ARGUMENT THAT THE 2021 AMENDMENTS ARE UNCONSTITUTIONAL

49. The applicant’s argument that the Public Services (Management) (Amendment) Act No 11 of 2021 fails to comply with the manner and form requirements of s 38 of the Constitution as it gives insufficient reasons for the restriction on s 50 constitutional rights, is rejected due to our finding above that s 38 does not apply to regulation of s 50 rights.
    
50. The question remains, however, whether the 2021 amendments to s 55 of the Public Services (Management) Act are reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
    
51. We have considered the reasons put forward in the parliamentary debate on the 2021 amendments: the need to avoid ‘politicisation’ of the Public Service created by prospective candidates using their positions in the Public Service before an election, and then if they are unsuccessful, coming back into the Public Service and being distracted by political pursuits.
    
52. We consider that the first risk is adequately accommodated by the requirement that an officer who wishes to contest an election must resign six months before the issue of the writs for an election.
    
53. The second risk is appropriately managed by the requirement, introduced in 2020 by the new s 55, that officers who are unsuccessful candidates for election must apply for re-engagement to the Public Service with no right (unlike s 55 in its original form) of re-engagement.
    
54. We consider that the applicant has discharged the onus of showing that the 2021 amendments are not reasonably justifiable. In contrast to the 2020 amendments, which had the effect of putting officers of the Public Service in the same position as any other person who resigned from their position to contest an election and was unsuccessful and sought reappointment, the 2021 amendments put officers of the Public Service in a weaker position compared to all others. It effectively prohibits them from re-engagement in the Public Service for five years after the election at which they were unsuccessful. This prohibition operates without exception. Even if they are desperately needed, no one – not even the Secretary of the Department of Personnel Management – is given the power to decide to re-engage the resigned officer.
    
55. The applicant has adduced evidence that the five-year prohibition on re-engagement (which came into operation on the date of certification of the 2021 amendments, 21 September 2021) has prevented the re-engagement in the Public Service of a number of medical practitioners who resigned from the Public Service to contest the 2022 general election and were unsuccessful candidates. No evidence in rebuttal of that contention has been adduced by the applicant. The evidence of the applicant is sufficient to convince us that the 2021 amendments discriminate against officers of the Public Service who wish to contest an election.
    
56. By requiring that an officer who resigned to contest an election and was unsuccessful wait five years after the election to apply to be reappointed to the Public Service, the 2021 amendment imposes a disincentive to officers considering contesting an election.
    
57. Two other parts of the 2021 amendments are of similar effect. The increase from six months to 12 months in the period before the writs for a national election are issued by which an officer who wishes to contest an election must resign, is a doubling of the period that an officer will be without a regular income. Then, the removal of the right of an officer under s 55(5) who resigned to contest an election and failed to be elected and is reappointed to the Public Service, to have the period of absence after their resignation regarded as leave without pay provides a further risk that has to be taken by an officer considering standing for election.
    
58. The combined effect of the 2021 amendments is to impose a substantial disincentive for officers of the Public Service who are contemplating standing for election. It works against, and restricts, the full and free exercise of the right of citizens to be elected to elective public office. It denies a particular class of citizens the reasonable opportunity to be elected to elective public office. It is a regulation of the right of that class of citizens under s 50(1)(d) of the Constitution that is not reasonably justifiable in a democratic society that has a proper regard for the rights and dignity of mankind.
    
59. At the same time these combined disincentives also have the effect of a serious disincentive for employment in the Public Service of skilled and experienced professionals such as medical doctors. The Public Service and hence the people of Papua New Guinea, will have difficulty attracting citizen professionals into the Public Service who also wish to stand for elective office one day. Consequently, related services such as specialist or general medical and other skilled services in the Public Service will either get reduced or be rendered non-existent. This in turn would negatively affect the provision of quality and vital services to the people of Papua New Guinea by the State.
    
60. Further and most importantly, the intervener on behalf of the Executive Government failed to adduce any evidence and failed to assist with any submissions on the justification for introduction and imposition of the specific timeframes for resignation and seeking re-employment in the Public Service. Learned counsel for the intervener did not assist with any submissions on the factors considered by Parliament and how Parliament decided to arrive at the respective 12 months for resignation and five years before seeking re-employment. Our consideration of the relevant Parliamentary debate fails to disclose anything that goes into these aspects. In short, the intervener did not assist with any evidence or submissions on how these requirements and the timeframes introduced and imposed by the second amendment are reasonable, necessary and justifiable in a democratic society. In the absence of any such evidence and submissions there is no basis for any conclusion that the amendments are reasonable, necessary and justified in a democratic society like ours.
    
61. For these reasons the 2021 amendments impose an impermissible restriction on the exercise of the right conferred by s 50(1)(d) of the Constitution and are unconstitutional.
    

CONCLUSION

62. The failure of the first amendment to comply with s 38 of the Constitution was inconsequential and its removal of the right of an officer who resigned to contest an election and was unsuccessful to be reappointed was reasonably justifiable. The first amendment is a valid regulation of the exercise of the right to be elected to elective public office.
    
63. By requiring that an officer who resigned to contest an election and was unsuccessful wait five years after the election to apply to be reappointed to the Public Service and that an officer of the Public Service intending to contest an election resign 12 months before the election and by repealing the right to have the period of absence for an election as leave without pay, the second amendment imposes an impermissible restriction on the exercise of the right conferred by s 50(1)(d) of the Constitution and is unconstitutional.
    

ORDER

1. It is declared that the repeal and replacement of s 55 of the Public Services (Management) Act 1995 made by the Public Services (Management) (Amendment) Act No 5 of 2020 is constitutional.
   
2. It is declared that the amendments to s 55 of the Public Services (Management) Act 1995 made by s 2 of the Public Services (Management) (Amendment) Act No 11 of 2021 are invalid and that the whole of s 2 of the Public Services (Management) (Amendment) Act No 11 of 2021 is invalid, ineffective and unconstitutional.
   
3. The parties shall bear their own costs of the proceedings.

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Lawyers for the applicant: R M Simbil
Lawyer for the intervener : Solicitor-General