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Somare v Chan and The National Parliament [1980] PNGLR 255 (17 September 1980)

Papua New Guinea Law Reports - 1980

[1980] PNGLR 255 - Re The Constitution; The Right Hon Michael Thomas Somare v The Honourable Minister Sir Julius Chan and The National Parliament 

[1980] PNGLR 255

N254(L)

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

IN THE MATTER OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA

AND IN THE MATTER OF THE RIGHT HONOURABLE MR. MICHAEL THOMAS SOMARE, M.P.

AND THE HONOURABLE PRIME MINISTER SIR JULIUS CHAN AND

THE NATIONAL PARLIAMENT

Waigani

Pratt J.

17 September 1980

CONSTITUTIONAL LAW - Practice and procedure - Petitions - Locus standi - Petition by Leader of Opposition in National Parliament - Petition disputing validity of Act of Parliament and propriety of parliamentary motions - Locus standi of petitioner - Whether question of locus standi should be referred to Supreme Court under Constitution s. 18 - Question referred.

The question whether the parliamentary Leader of the Opposition in the National Parliament has the locus standi to present a petition pursuant to O. 63 of the Rules of the National Court where the petition is seeking rulings on a number of matters including the interpretation of ss. 117(1), 202, 205 and 206 of the Constitution and questioning the validity of s. 2 of the Defence Force (Presence Abroad) Act 1980:—

(a)      is a question requiring interpretation and application of certain provisions of the Constitution;

(b)      is not a matter which is trivial, vexatious or irrelevant; and

(c)      may well be a matter where there appears to be no rule of law applicable and appropriate to the circumstances, thus making it desirable for the Supreme Court to formulate a rule as part of the developing law pursuant to Sch. 2.3 of the Constitution;

and accordingly must be referred to the Supreme Court, pursuant to s. 18 of the Constitution.

Petition.

This was an application by way of petition by the Leader of the Opposition in the National Parliament, seeking in effect rulings on the validity of a parliamentary motion and certain provisions of the Defence Force (Presence Abroad) Act, 1980.

Counsel:

P. D. Donigi, for the petitioner.

L. S. Daniel, for the respondent.

A. Pala, for the co-respondent (the National Parliament).

17 September 1980

PRATT J.: This is an application by way of petition under O. 63 of the Rules of the National Court filed on behalf of The Rt. Hon. Michael Thomas Somare, Leader of the Opposition, and naming The Hon. Sir Julius Chan as respondent and The National Parliament as co-respondent. Copies of the petition with supporting affidavits have been served on the Secretary for Justice as Principal Legal Officer to The National Executive Council and on The Clerk of the House. Counsel for each named party have presented themselves before this Court.

At the outset I raised with counsel four matters on which I requested their assistance:

(1)      The form of the application.

(2)      The legal standing of the applicant—his locus standi.

(3)      The legal justification for joining the Prime Minister as a party to the proceedings.

(4)      The legal and practical feasibility of joining The National Parliament in such proceedings.

Counsel for the respondent had also intended to raise some of these matters and in addition asked that one further area be considered as a preliminary point, namely the applicant’s legal basis for requesting a review under s. 155(5) of the Constitution of the Independent State of Papua New Guinea. All parties agreed to address submissions to these matters.

The nature of the application may be summarized as follows: On 6th August, 1980, a motion was put to The National Parliament by the Prime Minister in the following terms:

“That in view 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 them in peace-keeping operations within The Republic and mindful of the bond of the peoples of the South Pacific, and especially between the peoples of Papua New Guinea and Vanuatu, and of our need and a duty to assist the people of Vanuatu in the attainment of their independence and unity and recognizing also the wishes of the people of the South Pacific to maintain stability in the region, Parliament authorize by s. 205(2)(b) of the Constitution and approve that a part of the Defence Force be committed forthwith to Vanuatu for peace-keeping operations for a period which the Papua New Guinea Government shall determine in consultation with the Vanuatu Government.”

On the same day the Parliament passed the Defence Force (Presence Abroad) Act 1980, which came into operation on the following day. In case the matter became relevant, the parties agreed on my invitation that as a fact (a) orders were given for the defence force troops to move to the state of Vanuatu, and (b) that such troops did proceed there.

The petition sought from the court rulings on a number of matters which reduced themselves to an interpretation of ss. 206, 205, 202, and 117(1) of the Constitution, and a specific attack on the validity of s. 2 of the Defence Force (Presence Abroad) Act 1980.

1. THE FORM OF THE APPLICATION

In par. 3 of his main affidavit the applicant says,

“As Parliamentary Leader of the Opposition, I am petitioning this Court under s. 23(2) of the National Constitution for a ruling on the constitutionality of The Honourable Prime Minister’s motion and the decision of the Parliament to send troops to Vanuatu under s. 205(2) of the National Constitution.”

That paragraph attempts to express in compendious terms the various rulings sought in the petition and highlights par. (e) of the petition. I cannot find any words in the petition which would cover a ruling on the “constitutionality of The Honourable Prime Minister’s motion”, which I take to mean that it was unconstitutional for the Prime Minister to put such a motion before the House. Whilst I agree that this is the first case of its kind, and that therefore a certain flexibility must be adopted by the court in the spirit of Sch. 2.3. of the Constitution, it is obviously essential to have some regard to the basic rules of pleading so that the issues may be crystallized and the court may have a clear view of what matter it is being asked to decide. It seems to me that the “relief” sought in the petition is paramount and that the accompanying affidavits should be restricted to the verification of those matters of fact which are necessary to support such petition, and not be used for the purpose of enlarging the grounds laid down in the petition itself. Certainly the summary of legal argument set forth in the affidavits is of great assistance to the court and it may be that rules should be formulated to allow or encourage such a document to be filed in future cases, as the present rules of 1977 numbered 22 do not seem to cover the situation.

I do not think however that a great deal turns on whether or not this application would more properly have been made by way of notice of motion. It seems to be accepted these days that a petition is only used in those cases where specific provision is made by some statute or the Rules of Court (for example, O. 80, r. 4). The real question here is whether or not the petitioner has standing before the court. The means by which he has sought to bring himself before the court do not seem of any great importance in this case.

3. AND 4. JOINDER OF THE PRIME MINISTER AND NATIONAL PARLIAMENT

Before dealing with that aspect however, it emerged in argument that some real difficulties lay in the petitioner’s way in continuing to press the proceedings against the Prime Minister as respondent and also against the co-respondent. Reference was made to s. 115(3) and (4) of the Constitution:

“(3)    No member of the Parliament is subject to the jurisdiction of any court in respect of the exercise of his powers or the performance of his functions, duties or responsibilities as such, but this sub-section does not affect the operation of Division III.2 (leadership code).

(4)      No member of the Parliament is liable to civil or criminal proceedings, arrest, imprisonment, fine, damages or compensation by reason of any matter or thing that he has brought by petition, question, bill, resolution, motion or otherwise, or has said before or submitted to the Parliament or a committee of the Parliament.”

Reference was also made to the somewhat amorphous nature of “The National Parliament” as a legal entity subject to the jurisdiction of the courts. Mr. Donigi applied at the end of his submissions to have the respondent and the co-respondent deleted as parties to the proceedings.

Prior to the commencement of the submissions by the respondent, the parliamentary counsel, Mr. Pala, sought an adjournment on behalf of the co-respondent on the ground of insufficient time for preparation, as he had just returned himself from Vanuatu. I suggested that in the light of Mr. Donigi’s concession, it did not seem necessary for such an adjournment to be granted, and by consent I ordered that the name of the co-respondent be struck from the proceedings. At the close of her submissions, Mrs. Daniel for the respondent, also sought an order that the Prime Minister be deleted from the petition and accordingly I then made a further order by consent to that effect.

2. THE LOCUS STANDI OF THE PETITIONER

Accordingly, the way was made clear for the main problem to be tackled. It is obvious that the petitioner could not bring himself within the terms of s. 19 of the Constitution, and he did not seek so to do. It might also be said that the authorities listed in s. 19 could not make an application under that section for a determination of the matters raised by the petitioner in the light of the functions given to each of them within the Constitution and under the subordinate enactments which amplify their respective functions. It is not necessary for me to decide this question however, although some assistance in determining the present applicant’s status may be derived from examination of this section. Indeed the respondent lay some emphasis on the absence from the list set out in s. 19(3) of the name of the Leader of the Opposition, and I think the submission has some weight.

Mr. Donigi has put the right of the applicant to come before this Court on four main grounds.

(1)      The fact that he is the Leader of the Opposition. Some disagreement ensued as to the exact size of the Opposition and I ruled that it was a matter of indifference to me how many heads could be counted. From the affidavit of the petitioner, and the figures were not contested from the bar table, the Opposition consisted of a significant proportion of those members sitting in the House on the day in question. The real point is that the petitioner is accepted by the respondent as the Leader of THE Opposition, and it could not be contested otherwise than that his position under the Westminster system of government as adopted into Papua New Guinea is one of prime importance, especially where the workings of the House are concerned. Equally the petitioner must be regarded as one whose sense of duty and responsibility is equal to that of the Prime Minister and his Ministers. Taken by themselves however, I do not see how these factors, grouped under the first basis of standing, can advance the petitioner’s claim, though undoubtedly they could affect the court’s approach on other grounds.

(2)      The wide ambit of s. 22 of the Constitution, which reads:

“The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally accepted doctrine.”

In examining this section however, I think the following points should be made:

(a)      It relates to the provisions of the Constitution that recognize the rights of individuals as well as

(b)      such provisions which confer powers or impose duties on public authorities.

In such cases, the mere fact that there exists a lack of machinery or procedural laws in order to permit the National Court to implement such provisions shall not be fatal and must be supplied by the court in the light, inter alia, of the National Goals and Directive Principles. Of these, Mr. Donigi has specifically drawn attention to National Goal No. 2 (Equality and Participation) principle (4); National Goal No. 5 (Papua New Guinean Ways) principle (1) and pars. (a) and (c) of the Basic Social Obligations. Counsel has also drawn the court’s attention to the requirement under s. 25(3) for the courts to understand and apply the law within the framework of those goals, and to Sch. 2.3. and Sch. 2.4. of the Constitution.

The rights of individuals probably cover a wider area than those set out in Div. III of Pt. III of the Constitution. Mr. Donigi goes so far as to say that the “Court must recognize the right in any citizen to challenge the constitutionality of any Act of a constitutional body”. If counsel is saying that when a person is affected, that is, his own rights or obligations are circumscribed in some way, by some Act, then he may challenge the constitutionality of the particular law in court, I would agree. If however counsel is submitting that any person, whether his rights are infringed or not, may come along to court and challenge the constitutionality of a piece of legislation, then I would most emphatically reject such proposition. As Mrs. Daniel for the respondent emphasized at some length, that is not part of the underlying law of Papua New Guinea made up by the common law of England as at 15th September, 1975, nor can I find any justification for such challenge to a constitutional body in custom, even if I give the term “constitutional body” a fair and liberal meaning. If the basis for such a submission lies in the Constitution as interpreted in the light of the Constitutional Planning Committee Report, then I regret that counsel has not been able to bring these areas to light with sufficient clarity for my powers of perception and I have not been able to find them myself. Accordingly, if the submission relied on this basis alone, then I would order a dismissal of the petition. The question certainly relates to the Constitution but I am unable to find what constitutional law I am being asked to interpret or apply. Alternatively, if counsel is of the view that the areas he has mentioned in his submission on this aspect do require an application or interpretation of the Constitution within the meaning of s. 18, I am unable to discover the relevance of the proposition to any part of a constitutional law which either I or counsel have examined so far. Accordingly I would not consider that such question should be referred to the Supreme Court.

(3)      Mr. Donigi endeavoured to overcome the problems faced by the petitioner as a result of the specific listing of authorities under s. 19 of the Constitution, by saying that this section is to be restricted to those cases where action has not yet been taken. Some support for such submission may be found in Reference No. 2 of 1976[cccxcix]¹ where Parliament sought an opinion from the Supreme Court as to whether or not a motion of no confidence could be moved during the remaining life of that House. Another example is Constitutional Reference No. 1 of 1978[cd]², concerning the respective rights and duties of the Ombudsman Commission and the Public Solicitor. Most references to the court so far seem to have derived from s. 18 rather than s. 19. I cannot however find anything in the wording of s. 19 to warrant such a restriction as that contended by counsel and the wording of pars. 150 and 152 of Ch. 8 of the Constitutional Planning Committee Report, whilst envisaging prospective actions, seems to imply past Acts as well. It is also obvious that the final form of s. 19 differs to some extent from the recommendations put forward by the Committee. Although this particular aspect was not argued in Constitutional Reference No. 2 of 1978[cdi]³, the Supreme Court clearly did not consider itself inhibited in any way in giving an opinion on the constitutionality of a provision in the Corrective Institutions Act 1957 or in giving machinery directions to fill the gap left as a result of such ruling.

In passing I note that the Leader of the Opposition and the Prime Minister are both excluded from s. 19 although the latter no doubt has some say under par. 3(b) (the Head of State on advice).

(4)      As a last resort, Mr. Donigi fell back on the misconceived notion that because one is a taxpayer, he has some special rights. I do not think Papua New Guinea is different to any other country in that if you earn an income, you can continue to exercise that right and with it the concomitant obligation to pay tax. That is the only relevance of par. (g) under the heading “Basic Social Obligations” in the Preamble to the Constitution. I do not see that it has any relevance to the issue at hand and I am sure the framers of the Constitution did not intend a citizen to have additional rights merely because he participated as earner and spender in a cash economy.

It is however when one joins the submissions dealing with s. 22 and s. 23 of the Constitution, that I find some difficulty. As indicated earlier, I am not sure what “rights” are being referred to in s. 22 particularly when that section is conjoined with s. 23(2). Although the issue could not be canvassed in this Court, the constitutionality of the Defence Force (Presence Abroad) Act 1980 is obviously open to argument. It is not appropriate for me to make any comment on such matters, both because it would involve an interpretation of the Constitution and because my only task at present is to decide whether or not the petitioner has any locus standi. Further, although I am not prepared to find that an individual as Leader of the Opposition has any greater or less right than anyone else under the Constitution, the fact that the petitioner does occupy that office may well be relevant to his interest in seeing that the provisions of the Constitution which confer powers or impose duties on public authorities, assuming one interprets that description to cover National Parliament, are observed. If that were so, then I as a member of the National Court could settle the machinery or procedural laws under s. 22, although in the present case I cannot envisage such a requirement eventuating.

In short, in order to reach a conclusion on the question of locus standi, I must both apply and interpret certain provisions of the Constitution. It may be that this is an occasion both factually and legally where “there appears to be no rule of law applicable and appropriate to the circumstances of the country”, to quote from Sch. 2.3. of the Constitution, and the Supreme Court may deem it desirable to formulate a rule as part of the developing law. As I do not consider the matter trivial, vexatious or irrelevant, I am bound by s. 18 of the Constitution to make a reference. I therefore refer the following questions to the Supreme Court:

1.       Does the petitioner have sufficient legal standing to present to the National Court the petition filed herein?

2.       If yes to the above, are not the rulings sought in the petition matters solely for determination by the Supreme Court?

Under r. 4 of the Supreme Court Rules 1977, I direct that the petition and three affidavits of support filed herein will form the basis of this reference and that the petitioner will execute all necessary steps in relation to such documents to comply with such Rules. I also direct that a copy of all documents comprising this reference be served on the principal legal adviser to the National Executive.

Questions referred.

Orders accordingly.

Solicitor for the petitioner: P. D. Donigi.

Solicitor for the respondent: Charles Maino-Aoae.

Solicitor for the co-respondent: Office of the Legislative Council.

[cccxcix] [1976] P.N.G.L.R. 228.

[cd] [1978] P.N.G.L.R. 345.

[cdi] [1978] P.N.G.L.R. 404.