|
|
Home
| Databases
| WorldLII
| Search
| Feedback
Papua New Guinea Law Reports |
[1981] PNGLR 265 - SCR No 4 of 1980; Re Petition of Michael Thomas Somare
[1981] PNGLR 265
SC204
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SUPREME COURT REFERENCE NO. 4 OF 1980
IN THE MATTER OF THE CONSTITUTION OF PAPUA NEW GUINEA
AND
IN THE MATTER OF THE RIGHT HONOURABLE MICHAEL THOMAS SOMARE, C.H., M.P.
Waigani
Kidu CJ Kearney DCJ Greville Smith Kapi Miles JJ
30-31 October 1980
1-2 December 1980
3 August 1981
CONSTITUTIONAL LAW - Practice and procedure - Locus standi - Petition disputing validity of Act of Parliament - Petition by Leader of Opposition - Petitioner having sufficient standing as citizen - Constitution ss. 18,[cdlx]1 19, 23, Sch. 2.1, Sch. 2.3.
CONSTITUTIONAL LAW - Underlying law - Formulation of - Constitution s. 9, Sch. 2.1, Sch. 2.3.
(Kearney DCJ and Greville Smith J dissenting.) The Leader of the Opposition in the National Parliament, as a citizen, has standing to invoke the powers of the Supreme Court under s. 18(1) of the Constitution to determine whether an Act of Parliament (The Defence Force (Presence Abroad) Act 1980) is invalid as being unconstitutional.
(Per Kidu CJ Kapi and Miles JJ): The essential purpose of s. 19 of the Constitution is to vest in the Supreme Court a limited jurisdiction to give advisory opinions; it is not meant to cover the field in relation to applications for rulings on the constitutionality of Acts of the Parliament, by way of public interest suits.
(Per Kidu CJ): In the formulation of a rule of the underlying law as to standing to challenge the constitutionality of an Act of Parliament:
(a) the common law standing rules are inapplicable, and should only be used by way of analogy;
(b) for custom to be relied upon, there must be evidence that the custom applies in at least the majority of the Provinces;
(c) standing should not be restricted to any particular group; and
(d) the general principle is that the People, the depository of all power, have standing.
(Per Kapi J):
(1) Standing to apply under s. 23 of the Constitution is not governed by s. 19, but by reference to laws adopted or created under Sch. 2;
(2) An enquiry into the underlying law should commence with an examination of custom adopted under Sch. 2.1 because such custom is superior to the adopted common law;
(3) A custom adopted under Sch. 2.1 in relation to an issue which applies to the whole country, must be one common to all societies throughout the country. This is a question of fact;
(4) The common law on standing should not be adopted, because of the different constitutional background;
(5) The following rule of standing should be formulated under Sch. 2(3): an applicant must have a sufficient interest in that to which the application relates. The test of sufficient interest is objective;
(6) If Members of Parliament do not ensure compliance with the Constitution, every citizen has standing to do so. Whether standing is granted to a citizen is a matter for the court’s discretion;
(7) The applicant has standing to seek a declaration of invalidity both:
(a) as a Member of Parliament; and
(b) as a citizen.
Matters to be taken into account when formulating a new rule under Sch. 2(3), and the “floodgates” argument, discussed.
(Per Miles J):
(1) The legislative power of the people vested in the National Parliament is supervised by the exercise of the judicial power of the people vested in the Supreme Court to rule legislation unconstitutional;
(2) As none of the laws in s. 9 of the Constitution provides a rule in relation to standing to seek a declaration as to the constitutional validity of an Act, it is the duty of the Supreme Court to formulate such a rule under Sch. 2.3(1) of the Constitution, as part of the underlying law;
(3) The recognition of standing is a matter of the court’s discretion.
Judicial methodology on use of custom in development of the underlying law, standing rules in other jurisdictions, and matters going to the exercise of the discretion to recognize standing, discussed.
Reference
This was a reference to the Supreme Court by the National Court pursuant to s. 18(2) of the Constitution of the question whether the Leader of the Opposition in the National Parliament had sufficient locus standi to present a petition disputing the validity of an Act of Parliament. For the proceedings in which the question was referred, see Re Michael Thomas Somare M.P. and Sir Julius Chan [1980] P.N.G.L.R. 255.
Counsel
P. Donigi, for the petitioner.
C. Maino Aoae and L. Daniel by leave intervening for the Principal Legal Adviser to the National Executive Council.
Cur. adv. vult.
3 August 1981
KIDU CJ: This Court is asked to rule on whether or not the petitioner has sufficient standing to invoke the jurisdiction of the National Court or the Supreme Court.
What the petitioner asked the National Court was to rule on the constitutionality or otherwise of two decisions of the Parliament—one approving the commitment of troops to Vanuatu for peace-keeping purposes and the other enacting the Defence Force (Presence Abroad) Act 1980.
Section 23(2) of the Constitution was relied upon to sanction the rulings sought. This provisions reads:
“(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.”
This provision does not confer standing. It empowers the National Court to prevent or remedy breaches of constitutional restrictions, prohibitions or duties. In this case there is no question raised of a Constitutional Law which prohibits or restricts an act or imposes a duty. It could be said that Parliament is under a duty to act within the ambit of powers conferred on it by the Constitution. If it does not, can it be sent to gaol for ten years or fined K10,000 or ordered to pay compensation? To me it seems that using s. 23 to punish or penalize Parliament is not what the provision was intended to do. Although the court has power to rule acts of the Parliament unconstitutional, it has no power to penalize it, nor does it have power to order it to pay compensation. (See s. 115 of the Constitution.) It has no power either to stop the Parliament from making laws. The court has power only to determine whether a law made by Parliament is constitutional or unconstitutional.
The rulings sought involve interpretation or application of Constitutional Laws. Subject to application of s. 23, s. 42(5), s. 57 and s. 58 of the Constitution, the Supreme Court has “original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law” (Constitution s. 18(1)). The question then is whether the Rt. Hon. Michael Thomas Somare, C.H., M.P., has the necessary legal standing to invoke the jurisdiction of this Court under s. 18(1) of the Constitution. Mr. Principal Legal Adviser submitted that s. 19 of the Constitution barred him. There is no doubt that Mr. Somare cannot utilize s. 19 and it was not relied upon by him. What he submitted through his counsel was that this was a case in which the court should formulate a new rule on locus standi. His counsel submitted that the common law should not be applied as a matter of course. It is a source which should be used in formulating underlying laws suited to Papua New Guinea.
The Principal Legal Adviser submitted that s. 19 was applicable and common law was not. In the alternative if common law was applicable, Mr. Somare had not established an interest sufficient to enable him to invoke the jurisdiction of this Court.
Section 19 empowers the Supreme Court to give advisory opinions when requested by ‘authorities’ enumerated in s. 19(3) thereof. It is a special provision included in the Constitution for a specific purpose—to enable the court to give advisory opinions. It is not meant to cover the field in relation to public interest constitutional questions. The Constitutional Planning Committee (the C.P.C.) in the narrative stated the following:
“150. A common device to get round the technical rules which restrict access to courts (as well as for other objectives) is to vest the jurisdiction to give an advisory opinion on constitutional issues in the courts. Under such a procedure specified bodies are authorised to refer a matter to the court for its opinion. It is not always necessary that a dispute should have arisen; an institution may wish to have an authoritative ruling on a constitutional point before embarking on a particular piece of legislation or a certain policy. It is flexible in that a party or parties can define clearly and precisely the issues on which they need a ruling, and yet the ruling is, strictly speaking, not binding.
151. While this procedure has these advantages, it has been criticised on the ground that in view of the crucial importance of the facts of a case a court performs its functions best when it has an actual and specific dispute before it. It is also said that if such a procedure exists, political and administrative institutions are tempted to avoid their own responsibilities of decision-making by referring contentious issues to courts. It is further argued that courts may be caused embarrassment under such a procedure if, for example, a case is brought to court under its ordinary jurisdiction on a point on which it has already given an advisory opinion.
152. Experience in countries which do permit judicial advisory opinions shows that such criticisms are not justified. In any case, we consider that the advantages outweigh the possible disadvantages and we recommend that provision be made for the Supreme Court to give an advisory opinion on any matter concerning any provision of the Constitution, including its implementation and enforcement.
153. We envisage advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a constitutional provision or the executive to establish what the law on a particular constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravated and the parties to it take strong and inflexible positions. It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.
154. Having given careful thought to who should be able to seek a judicial opinion, and on what matters, we consider that only the following institutions should be empowered to seek advisory opinions:
· the First Parliamentary Committee (as the Permanent Parliamentary Committee charged with responsibility for constitutional affairs);
· the National Executive Council;
· the body charged with special responsibility in relation to the resolution of central-provincial government disputes; and
· the body responsible for recommending changes in existing legislation to achieve conformity with the national goals and directive principles and the human rights and obligations incorporated in the Constitution.
155. We recommend that this constitutional advisory jurisdiction be exercised only by the Supreme Court, as the court which has exclusive jurisdiction in regard to most constitutional matters. Advisory opinions given by that court should have considerable weight.”[cdlxi]2
Section 19 opinions have the same binding effect as any other decision of the Supreme Court (s. 19(2)) and there are more authorities which can ask for such opinions than recommended by the C.P.C. Section 19 procedure is special: C.P.C. Report p. 8/16 says:
“153. ... It is important, however to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.”
It was not meant to ‘cover the field’ in cases of public interest, constitutional matters or questions. One other purpose of s. 19 was to ensure that certain authorities were not hindered by rules relating to locus standi—rules formulated by common law courts in England based on proprietary interests. The common law is quite clear on the question of locus standi relating to public interest—only the Attorney-General or a person who has obtained his fiat can invoke the jurisidiction of the courts. In Papua New Guinea, where there is no Attorney-General the Principal Legal Adviser submitted that only authorities enumerated in s. 19(3) can come to this Court. In England there is no law which allows courts there to give advisory opinions. In common law, therefore, advisory opinions cannot be given. Section 19 allows the Supreme Court of Papua New Guinea to do so. It was included in the Constitution to get over this obstacle, at least as far as constitutional law is concerned.
As there is no Attorney-General in Papua New Guinea, it cannot be said that he or she is the guardian of the public interest.
The public interest in Papua New Guinea can be protected by authorities enumerated in s. 19(3) of the Constitution. But my own experience is that those authorities will only get involved if they consider that the question or matter involves or affects their own areas of operation or responsibilities. In the present case the Ombudsman Commission, when approached to refer the matter to this Court, refused to do so. In its reply to counsel for Mr. Somare it said, inter alia, —
“This Commission, however, has determined that under the circumstances of this case, it has no jurisdiction to interfere with a decision by Parliament involving a matter of foreign policy. We observe that no allegation of injustice or discrimination against an individual is involved.”
It was the Commission’s prerogative to refuse to refer the matter. However, it is an example of what I said earlier—that an authority mentioned in s. 19 will not act if the matter does not affect their respective areas of operations.
Parliament did not refer it because the Government had the numbers to defeat the motion to refer.
The Principal Legal Adviser could have referred it but didn’t because, it is apparent, that he had advised the Government of the constitutionality of the questions or matters involved.
Other authorities mentioned in s. 19 were not approached to refer the matter to this Court. Whether if approached, one would have referred it or that they would have all refused to refer it, is only speculation.
Whatever the authorities mentioned under s. 19 do, my view is that that section has only a limited application. It does not prevent or bar applications for rulings on constitutionality, or otherwise, of Acts of Parliament by way of public interest suits.
If the existing common law rules relating to locus standi in public interest suits are applied, Mr. Somare lacks the requisite standing. There are numerous cases asserting these rules. In Gouriet v. Union of Post Office Workers[cdlxii]3 per Lord Wilberforce at p. 477:
“A relator action—a type of action which has existed from the earliest times—is one in which the Attorney-General, on the relation of individuals (who may include local authorities or companies) brings an action to assert a public right. It can properly be said to be a fundamental principle of English law that private rights can be asserted by individuals, but that public rights can only be asserted by the Attorney-General as representing the public. In terms of constitutional law, the rights of the public are vested in the Crown, and the Attorney-General enforces them as an officer of the Crown. And just as the Attorney-General has in general no power to interfere with the assertion of private rights, so in general no private person has the right of representing the public in the assertion of public rights. If he tries to do so his action can be struck out.”
The rest of the Law Lords in that case reiterated the established rules of locus standi in public right or interest cases. These rules are based on different constitutional bases. In England for instance the courts have no power to rule an Act of the Imperial Parliament unconstitutional. Such a case as the one before this Court could never arise in England unless the law is changed by statute. In Papua New Guinea the power of the Supreme Court to rule Acts of the National Parliament as being invalid or unconstitutional is not in doubt. The power has been exercised several times since Independence. (See Constitutional Reference No. 3 of 1978; Re Inter-Group Fighting Act 1977[cdlxiii]4. Constitutional Reference No. 2 of 1978; Re Corrective Institutions Act 1957[cdlxiv]5).
Mr. Donigi argued that the common law as adopted by the Constitution is a stop-gap measure. It should not be applied as of right. This is true in that Parliament has not, as required by s. 20(1) of the Constitution, declared the underlying law and provided for the development thereof. That being so, s. 20(2) applies—i.e., Sch. 2 operates. The purpose of an Act made under s. 20(1) and Sch. 2 is stated in s. 21(1) of the Constitution:
“(1) The purpose of Schedule 2 (adoption, etc., of certain laws) and of the Act of the Parliament referred to in Section 20 (underlying law and pre-Independence statutes) is to assist in the development of our indigenous jurisprudence, adapted to the changing circumstances of Papua New Guinea.” (Last emphasis mine.)
Schedule 2.1 and 2.2 both provide that custom and common law (and equity) are adopted and must be applied and enforced as part of the underlying law, subject to certain limitations. However, whereas custom is made applicable subject to “a Constitutional Law or a statute, or repugnant to the general principles of humanity ... etc.:” common law (and equity) is made subject to Constitutional Law or a statute; being inapplicable or inappropriate to circumstances of Papua New Guinea from time to time and being “inconsistent with custom”.
Mr. Donigi submitted that in Papua New Guinea “big men” can speak in any forum. Mr. Somare should be allowed to speak in this forum because he is such a man. If this is so, it goes against s. 55(1) of the Constitution:
“Subject to this Constitution, all citizens have the same rights, privileges, obligations and duties irrespective of race, tribe, place of origin, political opinion, colour, creed, religion or sex.”
Section 55(3) does not apply because there is no operative pre-Independence law on the issue. Schedule 2.2 is not applicable.
The common law principles or rules relating to locus standi do not relate directly to cases where questions of challenges to constitutionality of Acts of Parliament arise. No such questions arise as far as I have been able to find out. This is so because in that country where there is no written Constitution and Act of the Imperial Parliament cannot be said to be unconstitutional or constitutional. In that country the Queen-in-Parliament is supreme and can make any law it desires to make. In Papua New Guinea it is the Constitution which is supreme and the Parliament can only make laws which are not contrary to the Constitution.
In my opinion, therefore, the common law rules of locus standi should only be used as analogous in the determination of an appropriate rule, if they are thought to be applicable at all.
As noted above, counsel for Mr. Somare submitted that the common law was not applicable here and I agree for reasons I have stated above. Counsel then submitted that custom should be used to formulate a new rule of locus standi at least as far as leaders in this country are concerned. He quoted certain authors and read an affidavit of Herman Beni to show this Court that a custom exists in this country that leaders can speak in any forum on behalf of their people. If such custom exists, it applies to certain groups of people in this country—e.g. the Arapesh of East Sepik Province. The custom is not shown to be applicable throughout Papua New Guinea. I consider that in a case such as this, for a custom to be held to be applicable in Papua New Guinea, evidence that at least the majority of the nineteen Provinces have this custom would be required for this Court to hold that it applies in Papua New Guinea. For this reason I am of the opinion that there is no custom in this country that any leader can come to this forum and speak on behalf of his people.
This being so this Court is left with the position that there is neither custom nor common law to rely on for purposes of answering the questions before it. The court, is, as required by Sch. 2.3 of the Constitution to formulate a new rule of locus standi relating to challenges to constitutionality or otherwise of Acts of the National Parliament in cases where a person is not personally affected by the operation of such an Act.
Schedule 2.3 requires that in formulating an appropriate underlying law the court must have regard:
“(a) in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and
(b) to Division III.3 (basic rights); and
(c) to analogies to be drawn from relevant statutes and custom; and
(d) to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and
(e) to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,
and to the circumstances of the country from time to time”.
The English cases cited by counsel in their arguments and the Australian ones which merely reiterate them, for reasons I have already stated, are of no assistance to this Court.
I also hold the view that the two Canadian cases[cdlxv]6 do not assist this Court much because the rule enunciated in those cases restricts locus standi to taxpayers.
In my view, in cases where the constitutionality or otherwise of an Act of the National Parliament arises, locus standi should not be restricted to any particular group.
The Constitution of this country provides that all power belongs to the people[cdlxvi]7. These powers are then given to three bodies—the National Parliament (legislative power), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally. In the case of the legislative power, the Constitution specifically says:
“109. GENERAL POWER OF LAW-MAKING
(1) Subject to this Constitution, the Parliament may make laws, ... etc.”
That is to say that when the Parliament makes a law, it shall be constitutional —s. 10 of the Constitution also says:
“All written laws (other than this Constitution) shall be read and construed subject to:
(a) in any case—this Constitution; and
(b) ...
(c) ...”
The People, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament, is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it.
The Constitution also obliges every person in Papua New Guinea “to respect and to act in the spirit of, this Constitution, ...”[cdlxvii]8. This includes Member of the Parliament. They are required, in this case, to ensure that laws they make are constitutional. They are also required, when taking office to swear that they will uphold the Constitution of Papua New Guinea[cdlxviii]9. This obligation must mean something. For people such as Members of the Parliament to make this declaration and ignore it afterwards makes a mockery of the Constitution.
From the foregoing, I hold that the petitioner has the necessary standing to invoke the powers of this Court to determine the constitutionality (or otherwise) of the Defence Force (Presence Abroad) Act 1980.
There are no specific rules of court to facilitate questions of the nature before this Court. However, s. 185 of the Constitution does empower, in these types of situations, the courts to “... give ad hoc directions to remedy the lack or inadequacy”.
I would answer the questions in the reference as follows:
1. The petitioner has sufficient legal standing to seek a ruling from this Court as to the matters raised in the petition.
2. The matters raised are solely for determination by this Court.
KEARNEY DCJ: The Right Honourable Michael Somare C.H., M.P., petitioned the National Court for declarations which in essence involved the proposition that the Defence Force (Presence Abroad) Act 1980 is invalid as contrary to the Constitution. The learned National Court judge referred the following questions to this Court under the Constitution, s. 18(2):
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?
The answer to the second question is clearly: “yes”. It is implicit in that answer that the National Court had no jurisdiction to entertain the petition; the National Court has no power to declare a law invalid. Lacking such jurisdiction, it also lacked power to refer the questions under the Constitution, s. 18(2). However, as a practical matter, and in the particular circumstances, I agree that the proceedings instituted by the applicant in the National Court should be treated as having been instituted in this Court, the proper court to deal with them.
The threshold question before this Court is whether the applicant has standing to apply for a declaration that an Act of the National Parliament is invalid as being unconstitutional. I consider that the Constitution, s. 19(3), compels the answer: “no”.
First, I respectfully agree with the Chief Justice that the Constitution, s. 23(2), does not deal with standing; I consider that it is directed to making effective the remedial process of the court.
Under the Constitution, the representatives of the people in Parliament are entrusted with the making of laws. For judges, who are non-elected, to declare laws enacted by the democratically elected parliamentary representatives of the people to be invalid, is always a most serious matter in any democracy. Further, effective government is impossible if the will of the people, as manifested by laws passed by their representatives in Parliament, can be subjected to a continual process of constitutional sifting by the court, at the instance of any individual whose rights are not infringed or threatened by those laws. Such a process would ultimately be destructive of the present constitutional structure. At the same time, the court must carry out its own constitutional duty, and fearlessly declare invalid, in the circumstances contemplated by the Constitution, and when it is essential to do so for the purposes of the Constitution, those laws which are inconsistent with the Constitution, though the rights of but a single individual be affected or threatened.
The Constitution draws the necessary balance between the need to protect the rights and freedoms of the individual as enshrined in the Constitution, and the law-making power of the Parliament; that indeed is a major function of any written Constitution. However, I consider that it also deals explicitly with the circumstances in which constitutional challenge to laws may be made, and with the persons and bodies who may institute such challenge.
It is trite that a Constitution which sets out in detailed form the basic rights and freedoms of individuals differs in a fundamental way from one which, written or unwritten, does not. Every individual has standing under the Constitution to challenge the validity of a law of the Parliament should it infringe or threaten to infringe his exercise of one of his Constitutional rights or freedoms. But in addition to that, the Constitution also takes account of what in other jurisdictions are called “public interest” actions; this is catered for in the Constitution, s. 19(3), where the listed bodies are given express constitutional standing to challenge the validity of a law. Standing to challenge the validity of a law is to be found solely in the Constitution; there is no scope—and no need—for the judicial initiatives on standing taken in other jurisdictions whose constitutional structures are different.
In the circumstances of this case, no basic rights or freedoms of the applicant are threatened or require to be protected; nor any other right or freedom, for that matter. The applicant cannot found upon that basis. Not one of the persons whose rights or freedoms are affected by the law in question—all of whom would clearly have standing—has sought relief; nor can this application be properly construed as an application to protect their rights or freedoms under the Constitution, s. 57(2).
As I have said, the Constitution authorizes certain bodies which, like the applicant in this case, are not themselves threatened or affected by a particular law, to apply to have that law declared invalid. That standing is given by the Constitution, s. 19(3). Applying the Constitution, s. 24(1), as an aid to interpretation, it is clear from pars. 150-154 on pages 8/16-8/17 of the Final Report of the Constitutional Planning Committee that the sole thrust of the Constitution, s. 19(3), is precisely to the question of standing to apply to have a law declared invalid, in these circumstances. I respectfully agree with the views expressed by Prentice D.C.J. (as he then was) and Williams J., in Mopio v. The Speaker of the National Parliament [cdlxix]10 as to the exclusive nature of the Constitution, s. 19(3). That is, s. 19(3) lists exhaustively those bodies which may apply as of right to the court for a binding advisory opinion on constitutional issues. There are almost fifty such bodies so listed, many of them independent of the government of the day. The result is a law of automatic standing to attack the validity of laws, which is more liberal than that of any other democracy.
It is vital to note that because of the terms of the Constitution, s. 19(2), there is no difference in nature or in legal effect between an “advisory opinion” under the Constitution, s. 19(1), as to the validity of an existing law, and a “declaration” as to the validity of an existing law. Both involve a binding judicial declaration of the legal status of the law in question.
As the Constitution, s. 19(3), lists explicitly and exhaustively those offices and bodies which can apply as of right to have tested the validity of a law, and the office of Leader of the Opposition does not appear on that list, I consider that Mr. Somare as holder of that office lacks the necessary standing to bring these proceedings as of right.
Recourse to either element of the underlying law (which may be varied by an ordinary Act), or to its development under the Constitution, Sch. 2.3, as a basis for finding some “public interest” standing is not permissible in my opinion, as the Constitution, s. 19(3), is intended to cover the field. Consequently, it is unnecessary for me to deal with the many interesting arguments advanced by Mr. Donigi. I consider that to permit the holder of the office of Leader of the Opposition as such to challenge the validity of the law is, in effect, to treat that office as having been added to those listed in the Constitution, s. 19(3). To do so, I think, would go beyond interpretation of the Constitution, which is the proper province of the judiciary.
In my opinion, the court should not answer the questions referred but should rule that the application by Mr. Somare be treated as having been commenced in this Court; that Mr. Somare has no standing as an individual, in the circumstances of the case, to challenge the validity of the Defence Force (Presence Abroad) Act 1980; that in the circumstances the application is indistinguishable from an application under the Constitution, s. 19(1); that Mr. Somare in his office as Leader of the Opposition is ineligible to make that application, because of the operation of the Constitution, s. 19(3); and that accordingly the application be dismissed.
GREVILLE SMITH J: In this matter the applicant, as Leader of the Opposition, seeks a ruling by this Court that the Defence Force (Presence Abroad) Act 1980 is unconstitutional and thus invalid. By consent the court agreed to consider as a preliminary point of law the question of whether the applicant has “locus standi”.
Sections 18 and 19 of the Constitution, so far as relevant provide as follows:
18. ORIGINAL INTERPRETATIVE JURISDICTION OF THE SUPREME COURT
(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
(2) ...
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 legislature; and
(eb) a provincial executive; and
(ec) the council established in accordance with Section 187h(2) (inter-governmental relations) and any other body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government, or between provincial governments; and
(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).
(4) ...
(5) ...
Counsel for the applicant did not attempt to rely upon the provisions of s. 19 of the Constitution, and in my view rightly so, because the applicant is plainly not one of those “authorities” specified in that section as the only ones entitled to make application under s. 19(1).
Section 20(2) of the Constitution provides as follows:
20. UNDERLYING LAW AND PRE-INDEPENDENCE STATUTES
(1) An Act of Parliament shall:
(a) declare the underlying law of Papua New Guinea; and
(b) provide for the development of the underlying law of Papua New Guinea.
(2) Until such time as an Act of Parliament provides otherwise:
(a) the underlying law of Papua New Guinea shall be as prescribed in Schedule 2 (adoption, etc., of certain laws); and
(b) the manner of development of the underlying law shall be as prescribed by Schedule 2 (adoption, etc., of certain laws).
(3) Certain pre-Independence statutes are adopted and shall be adopted, as Acts of Parliament and subordinate enactments of Papua New Guinea, as prescribed by Schedule 2 (adoption, etc., of certain laws).
As of this time no Act of Parliament “provides otherwise”.
Schedule 2 of the Constitution provides, inter alia, as follows:
Sch. 2.1. RECOGNITION, ETC., OF CUSTOM
(1) Subject to Subsections (2) and (3), custom is adopted, and shall be applied and enforced, as part of the underlying law.
(2) Subsection (1) does not apply in respect of any custom that is, and to the extent that it is, inconsistent with a Constitutional Law or a statute, or repugnant to the general principles of humanity.
(3) ...
Sch. 2.2. ADOPTION OF A COMMON LAW
(1) Subject to this Part, the principles and rules that formed, immediately before Independence Day, the principles and rules of common law and equity in England are adopted, and shall be applied and enforced, as part of the underlying law, except if, and to the extent that:
(a) they are inconsistent with a Constitutional Law or a statute; or
(b) they are inapplicable or inappropriate to the circumstances of the country from time to time; or
(c) in their application to any particular matter they are inconsistent with custom as adopted by Part 1.
(2) ...
Schedule 2.3 provides, inter alia, as follows:
Sch. 2.3 DEVELOPMENT, ETC., OF THE UNDERLYING LAW
(1) If in any particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country, it is the duty of the National Judicial System, and in particular of the Supreme Court and the National Court, to formulate an appropriate rule as part of the underlying law having regard:
(a) in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and
(b) to Division III.3 (basic rights); and
(c) to analogies to be drawn from relevant statutes and custom; and
(d) to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and
(e) to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,
and to the circumstances of the country from time to time.
(2) ...
Schedule 2.4 provides:
Sch. 2.4 JUDICIAL DEVELOPMENT OF THE UNDERLYING LAW
In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it. would not be proper to do so by judicial act.
The principles and rules of common law and equity referred to in Sch. 2.2(1) contain rules whereby in certain sorts of instances courts may in their discretion grant a declaration, which in a particular case might be or might involve a declaration as to the validity of a particular law. Once again the applicant, except belatedly, did not seek to rest his application on the adopted English rules, and once again in my opinion rightly so. Those rules provide that before he is entitled to such a declaration he must have “locus standi”, that is, a right to appear and ask for such an order, and a condition precedent to the possession of “locus standi” is that the claimant must have a substantial interest in the subject matter of the dispute of a kind which the court recognizes. The relevant English cases as to the sufficiency of interest were “immediately before Independence Day” Prescott v. Birmingham Corpn [cdlxx]11; Gregory v. London Borough of Camden [cdlxxi]12; Wilson, Walton International (Offshore Services) Ltd. v. Tees and Hartlepools Port Authority [cdlxxii]13 and Thorne R. D. C. v. Bunting [cdlxxiii]14.
In Gouriet and Others v. Union of Post Office Workers[cdlxxiv]15 the House of Lords, rejecting the view of the Court of Appeal, unanimously reaffirmed the traditional view in a decision which was undoubtedly a restatement of the law as it stood before the case began: a plaintiff with no special interest could not claim a declaration or injunction except in the name of the Attorney-General, and if the latter refused to give his consent there was nothing that the courts could do. In that case the action was for an injunction but it would appear that the “interest” needed for a declaration was at least as real as for an injunction, and the matter of “locus standi”, in the matter of declaratory judgments, is discussed in full. In my view it is a fair summary of the decision in that case to say that the court will not concern itself with questions the answers to which, to borrow the words respectively of Moffitt P. and Hutley J.A. in Johnco Nominees Pty. Ltd. v. Albury-Wodonga (N.S.W.) Corp.[cdlxxv]16 (at pp. 59 and 62) “can have no legal consequences to any right or disability”, which “are incapable of affecting any existing or future legal rights”, of the plaintiff.
That was the state of the English law “immediately before Independence Day”.
It is clear that the English rules do not avail the applicant and that under them he would not have “locus standi”. It was not argued that those rules were inconsistent with a Constitutional Law or a statute, or inapplicable or inappropriate to the circumstances of the country, nor do I think they are, but it was argued that they are, in their application to the matter in hand, “inconsistent with custom as adopted by Part 1” (Sch. 2.1, Sch. 2.2 (c)). In pursuit of this contention Mr. Donigi attempted to establish an analogy between the position of the Leader of the Opposition in the context of the nation, and a village or clan leader in the context of his people. To begin with, in my view, Mr. Donigi did not succeed in establishing any customary rights in leaders of sufficient universality and even if he had the argument in my view would fail because of the vastly different contexts in which any such customary rights in leaders, and the rights of Leader of the Opposition in this Nation, are to be found. In my view Mr. Donigi’s argument based on custom fails, on those grounds if on no other.
In my view, as I have indicated, the principles and rules of common law and equity in England governing the matter of “locus standi” in the matter of declaratory judgments would have the effect of denying to the applicant “locus standi” in the present case. In my view it is not, with respect, right to say, as my brother Miles J., says, that there is no such principle or rule governing the situation because no question of “ultra vires” legislation can arise in respect of the Parliament in England which is supreme. Whilst this is true, there are innumerable other governmental bodies of limited jurisdiction in England in respect of which questions as to whether particular subordinate legislation or particular actions are “ultra vires” or not arise, and the “locus standi” rule already mentioned has been held applicable. In principle it would in my view undoubtedly apply to British legislation if Britain acquired a constitution limiting its legislative powers, just as it has been held to apply in Australia both to State and to Federal Constitutional matters. (See Colonial Sugar Refining Co. Ltd. v. Attorney-General for the Commonwealth [cdlxxvi]17; The Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Co. Ltd. [cdlxxvii]18; Armstrong v. Victoria [No. 2.][cdlxxviii]19; Victorian Chamber of Manufactures v. Commonwealth (Prices Regulations) and Others[cdlxxix]20 and Toowoomba Foundry Pty. Ltd. v. Commonwealth and Others [cdlxxx]21).
In Canada, also, challenges by individuals to the constitutional validity of statutes have been determined by reference to the English rules relating to “locus standi”. (See e.g. Smith v. The Attorney-General for Ontario [cdlxxxi]22).)
I would add, with respect, apropos of the aspect of the judgment of my brother Miles J. to which I have already referred that had I been in agreement that this was a case in which this Court should, under the provisions of Sch. 2.3 of the Constitution “formulate an appropriate rule as part of the underlying law” I myself should have been most strongly inclined to proceed (by way of analogy it would in that case be) to apply the English rules as to “locus standi” confirmed by the House of Lords in Gouriet’s case especially in view of the duty upon this Court to see (Sch. 2.4) that “with due regard for the need for consistency, the underlying law develops as a coherent system ...”.
I now turn to a further consideration of s. 19. In my opinion Mr. Donigi’s attempt to discover to this Court “locus standi” in his client upon the basis of custom per medium of Sch. 2.1 of the Constitution even if otherwise appropriate must founder upon the content of s. 19. This is so because an essential part of Mr. Donigi’s argument depended upon a sufficient analogy between the applicant’s position as Leader of the Opposition, and that of a clan leader. I have no doubt that the Leader of the Opposition is an “authority” within the meaning of s. 19. In my opinion s. 19 was intended to “cover the field” so far as “authorities” are concerned, and on the canon of interpretation “expressio unius est exclusio alterius” the Leader of the Opposition would be excluded even if in the absence of s. 19, “locus standi” could be conferred upon him by reference to custom, or by reference to a rule promulgated by this Court under the provisions of Sch. 2.3.
In coming to the conclusion just mentioned I do not overlook the exact terms of s. 19(3) which provides that:
“(3) The following authorities only are entitled to make application under Subsection (1).” (Emphasis mine.)
I appreciate that it may be argued, upon the words “under Subsection (1)”, that s. 19 was intended merely to add another basis of “locus standi” to whatever other bases might exist including any basis that might be found in custom or might be created under the terms of Sch. 2.3. I think this is most improbable.
In Eastern Counties and the London and Blackwall Railway Companies v. Francis Marriage[cdlxxxii]23 (at p. 647) Baron Bramwell said:
“I confidently ask if ever it was heard of that a railway company bought land to sell again, or to hold as a profitable speculation unconnected with the railway. In the face of these difficulties, it is said the Appellants’ construction might tend to make railway companies proprietors in towns for purposes foreign to that of their creation. I ask whether it is right to test, not a principle but a rule of practice, as this section is, by putting an extreme case, theoretically possible, but practically impossible. The rule is ‘ad ea quae frequentius accidunt leges adaptantur’. Which mischief is the more likely to happen, and the more necessary to be guarded against, the unlawful, wasteful purchase of land by railway companies in the face of the difficulties I have pointed out, or the exactions of a ‘rapacious or capricious proprietor’?”
For another application of the principle stated in Latin by Baron Bramwell, the English rendition of which is “The law is adapted to those cases which most frequently occur” (Brown’s Legal Maxims—4th ed. p. 43) may be found in the judgment of Willes J., in R. v. Saddlers’ Co.[cdlxxxiii]24 and also in the judgment of Lord Blackburn in Dixon v. Caledonian and Glasgow and South Western Railway Companies[cdlxxxiv]25 (at p. 838):
“It was suggested in the course of the argument that there might be cases in which a mine-owner having begun to work, or made preparations for working, would sustain very heavy damage indeed, if the company changed their minds, and tried to stop him afterwards. Such a thing is conceivable and possible; but it is a good, sound maxim in construing Acts of Parliament to say in ea quae frequentius accidunt praeveniunt jura—that the Legislature do not foresee and do not provide for very improbable events, although they may be possible ones.”
The gist of the rule in question in its application to the matter now under consideration is that ordinarily it is not proper to interpret a statute on the basis that the Legislature had in contemplation possible but improbable situations and events. This, of course, is only common sense. In the spirit of Baron Bramwell one might well ask, in respect of the proper interpretation of s. 19, whether it was ever heard of before this case that “locus standi” in the Leader of the Opposition to seek a declaration in respect of the validity of legislation of the National Parliament might be derived from custom relating to village or clan leaders, or (and this with very great respect to my brother Miles) that the law of England contained no principle appropriate to govern the occasions upon which a citizen might challenge the validity of the legislation of a national government of limited legislative powers, notwithstanding developments in Canada, Australia and elsewhere.
In my view the Legislature, when it enacted s. 19, had in mind only the English rules as to “locus standi” discussed hereinbefore, and the question of what, if any, extensions should be made, or what additional provision should be added, to those rules. In my opinion, as I have already indicated, s. 19 was intended, together with the English rules, to “cover the field”, and no room remains for the deriving of “locus standi”, in a case like the present, from custom or under the terms of Sch. 2.3 or, so far as concerns the Leader of the Opposition in his official capacity, from a “development”, even if such were otherwise possible, of the English rules and principles so as to bring about a situation in respect of which Lord Denning expressed favour when he said in R. v. Inland Revenue Comrs; Ex parte National Federation of Self-Employed and Small Businesses Ltd.[cdlxxxv]26 at p. 422:
“On this review of the authorities I would endorse the general principle stated by Professor H. W. R. Wade Q.C. in his Administrative Law, 4th ed. (1977), p. 608. He says:
‘It [the law] should recognise that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interest than a regard for the due observance of the law.’
Those words were written in relation to mandamus but they apply also to the other prerogative orders of certiorari or prohibition. They apply also nowadays to declarations and injunctions—where these are sought in situations which are comparable to the prerogative orders, that is, against public authorities who are acting unlawfully.”
It seems to me that the view I take as to the intended exclusive nature of s. 19 is borne out by reference to the report of the Constitutional Planning Committee (reference to which is authorized by s. 24 of the Constitution) par. 154 of which commences with the following words:
“154. Having given careful thought to who should be able to seek a judicial opinion, and on what matters, we consider that only the following institutions should be empowered to seek advisory opinions ...”
Harking back briefly to my view expressed hereinbefore that the principle in Gouriet’s case would not, even leaving aside the provisions of s. 19 of the Constitution, found “locus standi” in the Leader of the Opposition, I am also of the view that it is not possible to found such “locus standi” by any purported “development” by this Court of those principles. Any purported “development” to that extent would, to borrow and adapt the words of Viscount Dilhorne in Gouriet’s case ([1977] 3 W.L.R. 300 at p. 327) be “not just to extend the existing law but to override” it. “That is a question for the Legislature to consider.”
I would, in the light of the foregoing, answer in the negative the first referred question, namely:
“1. Does the petitioner have sufficient legal standing to present to the National Court the petition filed herein?”
I would then dismiss the application of the Right Honourable Michael Thomas Somare, with costs if asked for by the State.
I would add, finally, and the Deputy Chief Justice requests me to state that he concurs, that if this application is to be heard on its merits, it is essential that all those persons whose civil rights or obligations may be affected by a declaration of invalidity, be afforded an opportunity to appear and be heard on that question. That appears to be their basic right. It is uncertain who such people are, but it would appear that all members of the defence force who went to Vanuatu would be so entitled. It would seem that adequate public notice of the relief sought, and the date of the hearing should be given together with an indication that all persons who claim to have a sufficient interest may apply to be heard.
KAPI J: On 6th August, 1980, the National Parliament passed an historic motion approving for part of the defence force to be committed for peace-keeping operations in the newly independent country of Vanuatu. This motion was passed as a result of a request by the newly lawfully elected government of the Republic of Vanuatu, formerly the New Hebrides, to assist in peace-keeping operations within the Republic.
Approval by the National Parliament is necessary under s. 205(2) of the Constitution.
The National Parliament passed the Defence Force (Presence Abroad) Act 1980 in accordance with s. 206 of the Constitution.
The approval of the motion and the passing of the Act did not go without the opposition of the Opposition parties in the Parliament. As a result of the motion a contingent of the force went to Vanuatu. The force has completed its task and has returned to the country.
While the force was still present in Vanuatu the Leader of the Opposition, the Right Honourable Michael Thomas Somare, made an application by way of a petition to the National Court seeking several orders. The matter came before Pratt J., for hearing in the National Court. At the hearing before his Honour a preliminary point arose as to the question of locus standi of the Leader of the Opposition. Having considered the issue his Honour referred the question to this Court under s. 18 of the Constitution. The two questions that have been referred for decision are as follows:
1. Does the petitioner have sufficient legal standing to present the petition filed herein to the National Court?
2. If yes to the above, are not the rulings sought in the petition matters solely for determination by the Supreme Court?
LOCUS STANDI
Counsel for the Leader of the Opposition submitted that he has locus standi. He made his submission on two alternative bases. The first is that there is evidence of custom in relation to locus standi from which this Court can adopt it as part of the underlying law under Sch. 2.1 of the Constitution. He relied heavily on anthropological work by anthropologists in this country and evidence of custom by Herman Beni of Urip Village, East Sepik Province, a member of the East Sepik Provincial Assembly. He submitted that if this Court adopted custom relating to locus standi under Sch. 2.1 of the Constitution it is not necessary to examine common law principles relating to locus standi. He submitted that common law is adopted only to the extent that its application is not inconsistent with custom as adopted under Sch. 2.1 of the Constitution. (See Sch. 2.2(1)(c) of the Constitution.)
He submitted in the alternative that if this Court declines to adopt custom relating to locus standi, the Leader of the Opposition would have sufficient interest to bring the application under the common law principles of locus standi.
In brief, the Principal Legal Adviser submitted that this Court is unable to adopt custom relating to locus standi as the Leader of the Opposition has failed to prove such custom as a matter of fact. He submitted that the materials or the facts presented before this Court regarding custom relating to locus standi is insufficient and therefore this Court should decline to apply any customary law. He then submitted that this case is governed by the common law principles of locus standi. He submitted that the Leader of the Opposition has failed to prove that he has sufficient interest in the matter to bring the application before the court.
The laws of Papua New Guinea are set out under s. 9 of the Constitution, one of which is the underlying law. (S. 9(f) of the Constitution.) The underlying law of Papua New Guinea is made up of three sources which are set out under Sch. 2 of the Constitution. Sch. 2.1, custom; Sch. 2.2, common law and Sch. 2.3, formulation of new law (development of the underlying law). The order in which these laws are listed under Sch. 2 is not without significance. In a case where the underlying law of Papua New Guinea is in question or is an issue, the enquiry should always begin with the examination of custom which is applicable under Sch. 2.1 of the Constitution. Custom which is adopted in accordance with Sch. 2.1 of the Constitution is superior to common law because common law is only applicable to the extent that it is not inconsistent with custom as adopted under Sch. 2.1 of the Constitution. (Sch. 2.2(1)(c) of the Constitution.) The extent to which common law is applicable cannot be determined without determining what the custom says.
Formulation of new law under Sch. 2.3 of the Constitution does not arise until it is established that custom under Sch. 2.1 and common law under Sch. 2.2 are inapplicable. Schedules 2.1, 2.2 and 2.3 of the Constitution set out the manner in which such laws may be adopted, applied and enforced as part of the underlying law. Schedule 2.4 of the Constitution is a general provision applicable to all three sources of the law adopted under schedules 2.1, 2.2 and 2.3 of the Constitution. Schedule 2.4 of the Constitution is concerned with the development of these laws from time to time in a manner appropriate to the circumstances of the country.
Before dealing with the questions of application of custom, common law and the creation of new laws, I shall first consider an argument put forward by the Principal Legal Adviser on the application of s. 19 of the Constitution. In order to appreciate the submissions concerning s. 19 of the Constitution it is necessary to set out the substance of the complaint by the Leader of the Opposition under s. 23(2) of the Constitution without proceeding to consider its merits. Section 23 of the Constitution deals with provisions which prohibit or restrict an act or impose a duty on a body or person. Under s. 23(2), where a person or body breaches the constitutional provisions which prohibit or restrict an act or impose a duty, the National Court may make any order to either prevent the breach or to remedy the breach of the prohibition, restriction or duty imposed by the constitutional provision. The nature of the complaint by the Leader of the Opposition in the petition, as I understand it, is that the use of the defence force for an international peace-keeping or relief operation is restricted by s. 205 and s. 206 of the Constitution. He complains that the National Parliament, in passing the motion approving the sending of troops to Vanuatu, and the passing of the Defence Force (Presence Abroad) Act 1980 is in breach of the restrictions under s. 205 and s. 206 and other provisions of the Constitution, and he therefore seeks an order in the National Court to remedy the breach of the restrictions. He seeks a number of orders in his petition but the end result of the orders he seeks is that the decision of the Parliament to send troops to Vanuatu and the passing of the Defence Force (Presence Abroad) Act 1980 is unconstitutional and accordingly null and void.
Whether or not this application has any merit and will be successful is not the concern of this Court at this stage. The question that has been referred for decision is whether the Leader of the Opposition can come to the National Court and complain about the matters raised in the petition. The issue is well stated by Chief Justice Warren in the context of U.S.A. in Flast et al. v. Cohen et al.[cdlxxxvi]27:
“In other words, when standing is placed in issue in a case, the question is whether the person whose standing is challenged is a proper party to request an adjudication of a particular issue and not whether the issue itself is justiciable.”
It may well be that s. 23(2) of the Constitution is not applicable. The court is not concerned with this at this stage. To consider this is to consider the merits of the application. One has to assume, for the purposes of deciding this preliminary point, that there is merit in the petition by the Leader of the Opposition.
The Principal Legal Adviser has submitted that the orders sought in the petition raise the question of the validity of a law and that such an application can only be brought before the Supreme Court by way of reference under s. 19 of the Constitution. He submitted that since the Leader of the Opposition does not come within the authorities listed under s. 19(3) of the Constitution, he does not have any standing. In this regard I have had the advantage of reading the draft judgments of both the Chief Justice and Miles J. and I agree with their Honours’ views on the application of s. 19 of the Constitution.
There is no constitutional provision or other statutory provision which deals with the question of who may make an application for an order under s. 23 of the Constitution. In the absence of such a constitutional or statutory provision, the matter will have to be resolved by reference to laws adopted or created under Sch. 2 of the Constitution. I now turn to consider these laws.
CUSTOM
In my view counsel for the Leader of the Opposition very rightly directed the court to examine custom first, as custom adopted under Sch. 2.1 of the Constitution is superior to common law principles. See Sch. 2.2(1)(c) of the Constitution. The question of formulation of an appropriate rule under Sch. 2.3 does not arise until it is considered or established that custom under Sch. 2.1 and the common law under Sch. 2.2 of the Constitution are inapplicable and that there is no rule of law which is applicable. Custom is defined under the Constitution: (Sch. 1.2):
“ ‘custom’ means the customs and usages of indigenous inhabitants of the country existing in relation to the matter in question at the time when and the place in relation to which the matter arises, regardless of whether or not the custom or usage has existed from time immemorial.”
A similar definition is also provided for by the Native Customs (Recognition) Act 1963 (as amended). The first difficulty that arises is that the indigenous inhabitants of this country have different customs applying in various matters. Where parties come from the same custom area there is no difficulty as the custom would apply to both. However there is a difficulty when the parties before the court are from different custom areas or where the subject matter before the court is a National matter or a National issue. The question then arises as to what is the custom applicable. I am aware of only one case dealing with this situation. The case is Hevago-Koto v. Sui-Sibi[cdlxxxvii]28. This was a decision of the late Chief Justice, Sir Alan Mann. The issue in that case arose out of different legislation but the question was whether there was a customary marriage. The case before his Honour involved two parties from different areas with different customs relating to marriage. In dealing with these differences his Honour said, at p. 61:
“It was argued that the child should be regarded as the product of a union recognized as a native customary marriage. The difficulty arises here out of the use of the words ‘customary’ and ‘marriage’. The parties belong to completely unrelated native groups. The applicant is from the southern highlands, the respondent is related to people from the western and eastern parts of Papua. She can apparently please herself to a large extent to which group she may choose to attach herself, but leading an urbanized life, she does not appear to have made any decisive choice. Whatever the position may be, there appears to be no community of native people recognizing any notion of customary marriage whose customs could extend to both parties in this case. Customary rules might apply by the usual process of tolerance if the family settled down as a unit within any of the groups concerned, but the differences between the parties are so great that it appears to be certain that this will never happen.”
In my view before a custom is adopted and enforced as part of the underlying law under Sch. 2.1 of the Constitution it must be established that there is a community of indigenous inhabitants of this country which recognize a certain customary rule. In a case which involves a dispute between two individuals regarding their private rights, it must be established that a custom which the court proposes to adopt as law is recognized and extends to both parties. In a case which involves an issue which has a general application to the whole country such as whether the Leader of the Opposition has locus standi, as in this case, it must be established that there is a custom which is common to all societies throughout the country. Custom as is referred to under Sch. 2.1 of the Constitution is not created by the court but is discovered as a matter of fact and adopted as law. Custom adopted under Sch. 2.1 of the Constitution is only to the extent that it is inconsistent with the constitutional law or statute or repugnant to the general principles of humanity. See Sch. 2.1 (2).
Under Sch. 2.1(3) of the Constitution an Act of Parliament may:
(a) provide for the proof and pleading of custom for any purpose; and
(b) regulate the manner in which, or the purposes for which, custom may be recognized applied or enforced and
(c) provide for the resolution of conflicts of custom.
Since the adoption of the Constitution, the Parliament has yet to pass such an Act. However, the Constitution had adopted the Native Customs (Recognition) Act 1963 under Sch. 2.6. This Act provides for the matters set out under Sch. 2.1(3). In relation to matters of proof and pleading of custom, s. 5 of the Native Customs (Recognition) Act provides the following:
“(1) Subject to this section, questions of the existence and nature of native custom in relation to a matter, and its application in or relevance to any particular circumstances, shall be ascertained as though they were matters of fact.
(2) In considering a question referred to in the last preceding subsection, a court is not bound to observe strict legal procedure or apply technical rules of evidence, but shall admit and consider such relevant evidence as is available (including hearsay evidence and expressions of opinion), and shall otherwise inform itself as it sees fit.
(3) For the purposes of the decision on a question referred to in Subsection (1) of this section, a court—
(a) may refer to books, treatises, reports or other works of reference, or statements by Native Local Government Councils or committees thereof (whether published or not), and may accept any matter or thing stated therein as evidence on the question; and
(b) may of its own motion call such evidence or require the opinions of such persons as it thinks fit,
but nothing in this subsection contained shall be deemed to limit in any way the discretion of the court in obtaining evidence or informing itself on the question.
(4) Notwithstanding the provisions of Subsection (1) of this section, where an appeal is made from a decision of a court, the court which hears the appeal may, if it thinks fit, consider de novo a question referred to in that subsection and which arises in the appeal.”
In the instant case custom which is proposed to be adopted under Sch. 2.1 in relation to locus standi must be a custom which is recognized throughout Papua New Guinea and this must be proven as a matter of fact. Where there are more than two customs relating to the matter, under s. 10(1) of the Native Customs (Recognition) Act 1963, the court may consider all the circumstances and may adopt that custom which it is satisfied the justice of the case requires. In an attempt to adopt custom under Sch. 2.1 counsel for the Leader of the Opposition referred to a number of articles by anthropologists in this country. Most of the articles referred to, which I do not find necessary to discuss in detail, are discussions of traditional political organizations and dispute settlement systems under selected societies or tribes within Papua New Guinea. Some of the societies referred to in these articles are East New Britain Province, Western Highlands and Sepik Provinces. The materials referred to fall short of proving that there is such a custom relating to locus standi which is recognized throughout Papua New Guinea. I am not prepared to adopt custom relating to only a few societies in this country as there may be other societies or tribes with different customs as to locus standi. It also follows that it would not be open for this Court to adopt a certain custom under s. 10 of the Native Customs (Recognition) Act as there is no evidence of all the customs from which the court could choose.
Under s. 10(2) of the Native Customs (Recognition) Act the court will have to have regard to the ordinary rules of law and equity. This brings me to the consideration of common law principles and equity under Sch. 2.2.
COMMON LAW
As to the adoption of common law under Sch. 2.2, I have expressed my views on this question in the following cases: Wahgi Savings and Loan Society Ltd. v. Bank of South Pacific Ltd. [cdlxxxviii]29; Iambakey Okuk and Anor. v. Fallscheer [cdlxxxix]30; The State v. Bisket Uranquae Pokia [cdxc]31.
The first enquiry would be: What was the common law as at immediately before Independence (1975)?
The English cases on the common law show that law on locus standi developed along two categories. The first category is normally referred to as the relator proceedings. These are actions which are taken up by the Attorney-General to protect or enforce public rights. Locus standi on these proceedings is very much restricted. See Gouriet v. Union of Post Office Workers and Others [cdxci]32. The second category deals with prerogative writs. The restrictions on the relator proceedings do not apply to the prerogative writs. Individuals who apply for prerogative writs have been allowed “liberal access under a generous conception of locus standi”. See the speech of Lord Wilberforce in Gouriet’s case (supra) at p. 84. See also R. v. Greater London Council; Ex parte Blackburn and Anor. [cdxcii]33. We are here concerned with declarations. We are not dealing with prerogative writs. The law as at Independence on these matters is as stated by Buckley J. in Boyce v. Paddington Borough Council [cdxciii]34:
“A plaintiff can sue without joining the Attorney-General in two cases: first, where the interference with the public right is such as that some private right of his is at the same time interfered with ... and, secondly, where no private right is interfered with, but the plaintiff, in respect of his public right, suffers special damage peculiar to himself from the interference with the public right.”
This principle was not disapproved by the House of Lords in Gouriet’s case[cdxciv]35.
In England, in January 1978, the Rules of Court brought about a change in the law of locus standi. Order 53 introduced a comprehensive system of judicial review. Under this order, it enables an application to cover all prerogative writs, declarations and injunctions. All these remedies could be obtained in the one application. Order 53 r. 3(5) sets down the test for locus standi for all these remedies; that an applicant must have “a sufficient interest in the matter to which the application relates”. I will return to this rule later.
In England the common law on locus standi developed in these two categories. An individual had a better chance of locus standi if he applied for a prerogative writ than if he applied for a declaration or injunction in relator proceedings where the consent of the Attorney-General comes in.
This unfortunate development took place because of historical reasons. Prerogative writs were the province of common law courts, while declarations and injunctions were the province of the Court of Chancery.
I do not see any good reason why the development of the law in this country should continue the historical development in this way. I cannot see the sense in adopting this situation. I see no reason why an application for declarations and injunctions should not have the same locus standi as prerogative writs. Such an attempt was made in England by the Court of Appeal in Attorney General Ex rel. McWhirter v. Independent Broadcasting Authority [cdxcv]36. This was, however, disapproved by the House of Lords in Gouriet’s case[cdxcvi]37.
The attempt by the Court of Appeal make sense to me. The practical effect of what I am saying is that I would not apply the common law as I find it. I would rather develop it in accordance with Sch. 2.4 of the Constitution.
There are also other reasons for not applying the English common law. This case turns on the constitutionality of a piece of legislation passed by the Parliament. The issues raised by the Constitution are peculiar to this country and are very different from those in England. For instance, the legislative power belongs to the people and this power is vested in the Parliament (see s. 100 of the Constitution). Such provisions would raise different principles as far as locus standi is concerned. Similarly the judicial power belongs to the people and this power is vested in the National judicial system (s. 158). Under s. 158(2) in interpreting the law the courts shall give paramount consideration to the dispensation of justice. These are but only a few references to the constitutional provisions which to my mind would enable this Court to approach the question of locus standi on an entirely different basis to the principles enunciated by the English courts. It is obvious that the background on which the common law principles on locus standi developed is quite different and for this reason I would not adopt the common law principles as I find them.
Thus I find that in this particular case there is no applicable rule of law. It is therefore a case of formulation of a new rule of law under Sch. 2.3 of the Constitution. Schedule 2.3 of the Constitution directs that in formulating the appropriate rule the court shall have regard to:
(a) the National Goals and Directive Principles and the Basic Social Obligations;
(b) basic rights;
(c) analogies drawn from relevant statutes and custom;
(d) legislation and decisions of courts of any country which has a similar legal system;
(e) relevant decisions of courts in the country.
To have regard to these considerations does not mean that the court should be strictly bound by them. What the court may eventually formulate may involve a combination of all these considerations. The point of this provision is that the court’s formulation of the principle should be influenced more by these factors than anything else.
Under Sch. 2.3(1)(c) the court shall have regard to analogies to custom. This is different from custom as adopted and applied under Sch. 2.1. Under Sch. 2.1 custom must be proven with some precision whereas the degree of precision may not be the same under Sch. 2.3(1)(c). However in practice custom must be decisively established under Sch. 2.3(1)(c) if it is to play any part in the formulation of a new rule of law.
Whether or not custom has any influence in the formulation of principle depends on the evidence that is produced before the court. The court may, in appropriate cases, decline to formulate a law if it considers that not much assistance has been given on these considerations. Formulation of new law depends to a large extent on the evidence of these considerations. It is foreseeable that in appropriate cases the formulation of a new law may change from time to time on the subject depending on the evidence that is brought before the court. It is not satisfactory. For these reasons counsel appearing in these cases ought to give these matters the fullest research. This does not mean that the judges should not give the fullest research outside counsels’ research. But it must be borne in mind that the judges of the Supreme Court are trial judges in the National Court and have very little time for full research. We do not have the benefit of law clerks as in the Supreme Court of the U.S.A. This undoubtedly puts a heavy burden on counsel who appear in these cases.
SCHEDULE 2.3(1)(A)
I find that there is nothing in the National Goals and Directive Principles which is relevant to the formulation of the law in this case. Under basic social obligations I find that the first social obligation would have direct relevance to the issue in this case, namely that all persons have the basic obligation to respect and to act in the spirit of the Constitution. See also s. 63 of the Constitution.
SCHEDULE 2.3(1)(B)
There is nothing under this provision which is relevant to the issue.
SCHEDULE 2.3(1)(C)
Neither counsel referred to any relevant statutes under this provision which might provide a useful analogy. In this area I can only think of the Local Courts Act and the District Courts Act in relation to who can lodge an appeal. Section 43 of the Local Courts Act provides that “a person aggrieved” may appeal to the National Court. Section 225 of the District Courts Act also provides that “persons aggrieved” may appeal. In common law, the words “persons aggrieved” were given a very restricted interpretation, confining it to a person who had a specific legal grievance: See Ex parte Sidebotham. In re Sidebotham[cdxcvii]38. However, this narrow meaning has been made wider. See Attorney-General of the Gambia v. N’jie[cdxcviii]39 at p. 511:
“The words ‘person aggrieved’ are of wide import and should not be subjected to a restrictive interpretation. They do not include, of course, a mere busybody who is interfering in things which do not concern him; but they do include a person who has a genuine grievance because ...” (something has been done or omitted to be done contrary to what the law requires).
This is a well developed concept on standing and the relevance of this will become apparent when I consider the English rules on locus standi.
As to custom, evidence of this did not cover the whole country. It is unsatisfactory, and the court is not in a position to confidently rule what the customs say on the matter so as to draw an analogy.
SCHEDULE 2.3(1)(D)
The law in Australia can be found in the recent case of Australian Conservation Foundation Inc. v. Commonwealth [cdxcix]40. This case follows the common law. A person to have standing must have suffered some special damage or adverse detriment.
In Canada, “in” cases involving invalidity of legislation under their Constitution the concept of legislation is much wider and does not have the same restrictions as in Australia and England. See Thorson v. Attorney-General of Canada (No. 2)[d]41. In cases other than constitutional cases the courts apply the same tests as in common law.
In the United States, Supreme Court rulings are very much affected by the provision of the Constitution on jurisdiction under Art. III. Under this Article the court can adjudicate only actual cases and controversies. The test laid down by the United States cases is whether there is such a personal stake or injury in the outcome of the controversy. See Warth v. Seldin [di]42. A very good summary of Canadian and United States cases is contained in the judgments of the High Court in Australian Conservation Foundation Inc. v. Commonwealth (supra).
The law in England is now brought under one rule under the Rules of Court. Locus standi is now governed by R.S.C. O. 53 r. 3(5) which provides:
“The Court shall not grant leave unless it considers that the applicant has a sufficient interest in the matter to which the application relates.” (Emphasis mine.)
This new rule came into force in January 1978. As to what is sufficient interest has yet to be developed in England. I have only been able to find one case on this rule. It is R. v. Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd.[dii]43. In an attempt to define what is sufficient interest, Lord Denning said at p. 389:
“To that I answer, as many statutes have done in similar situations: any ‘person aggrieved’, by the failure of a public authority to do its duty, has a sufficient interest.”
He then discusses the common law case dealing with who is an “aggrieved person”. Having discussed these authorities he said on p. 390:
“On this review of the authorities I would endorse the general principle stated by Professor H. W. R. Wade Q.C. in his Administrative Law (4th ed., 1977, p. 608). He says that:
‘It (the law) should recognise that public authorities should be compellable to perform their duties, as a matter of public interest, at the instance of any person genuinely concerned; and in suitable cases, subject always to discretion, the court should be able to award the remedy on the application of a public-spirited citizen who has no other interest than a regard for the due observance of the law.’ ”
In applying the principle Lord Denning said at p. 391:
“So I come back to the question: have these self-employed and small shopkeepers, through their association, a ‘sufficient interest’ to complain of this amnesty? Have they a genuine grievance? Are they genuinely concerned? Or are they mere busybodies? The matter is to be decided objectively. A ‘busybody’ is one who meddles officiously in other people’s affairs. He convinces himself, subjectively, that there is cause for grievance when there is none. He should be refused. But a man who is genuinely concerned can point, objectively, to something that has gone wrong and should be put right. He should be heard.”
Another member of the court, Ackner L.J. defined the rule as to what is a sufficient interest along the same lines. Lawton L.J. dissented.
Having regard to all the matters I have discussed, I would formulate a rule that would draw a line between those who can and those who cannot have standing. At the same time, the modern view on locus standi is not restrictive as is the common law. It must have a much wider conception as has been found in the Canadian cases dealing with constitutional cases.
A general principle that would suit the above description is the new English rule on locus standi. The English rule on locus standi was a result of much study by the English Law Commission. This rule was recommended by the Law Commission in its report on remedies in administrative law in 1975. The new rule would be that the applicant must have sufficient interest in the matter.
As to what is sufficient interest, I would adopt the objective test laid down by Lord Denning in R. v. Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd.[diii]44. It is not possible to lay down a workable definition for all cases because each case is different. I would leave it to courts to develop the application of the rule in individual cases.
Applying this to the present case I find that Mr. Somare would have standing. As a member of the Parliament he belongs to the governmental body which has been invested with the power of law-making by the Constitution. In relation to the issue in this case, Mr. Somare has raised, amongst other things, that the law-making body has not complied with certain provisions of the Constitution in passing the Defence Force (Presence Abroad) Act 1980.
If anyone has interest in the matter it is the members of the legislature who make the laws. It cannot be said that he is a mere busybody meddling in other people’s affairs. He, as a member of the Parliament, has standing and can bring this matter to court. Having come to this conclusion it is not necessary for me to consider his standing as Leader of the Opposition.
Furthermore, Mr. Somare, as a citizen, has standing. A citizen has standing where a question of non-compliance with the Constitution by the Parliament is involved.
This stems from the fact that the legislative power belongs to the people (citizens). This power is vested in the Parliament by the Constitution. The power given to the Parliament is to be exercised in accordance with the Constitution (s. 100). If the Parliament has not complied with the Constitution and the members of the Parliament are not willing to bring the matter before the court then, in my view, a citizen can. A citizen, under our Constitution, has not only an interest for the due observance of the law but, more than this, has the legislative power. I do not think that standing ought to be restricted to members of the Parliament or leaders of political parties in the Parliament. They are politicians and may have political reasons for not wanting to come to court. Our Constitution would be at stake if nobody had standing in those circumstances.
It might be said that such a view might open the floodgates and the courts might be swamped with too many cases. I observe that in other countries this policy consideration often restricts the scope of locus standi. With respect, this is no question of policy. Under our Constitution the legislative power belongs to the people. The question is, would the ordinary citizens have any standing in court if the legislative power is not exercised in accordance with the Constitution? A citizen would have standing for the reasons I have already given. I do not think it is proper for this Court to deny a citizen right to locus standi by a policy consideration. After all, the judicial power belongs to the people (s. 158 of the Constitution). It is the people’s court and let them come by the hundreds if they have the right to come.
However, I consider that standing given to any citizen should be at the discretion of the court. In exercising this discretion the court should consider whether the applicant has exhausted other means of achieving the same thing. In this case the Leader of the Opposition opposed the motion and the Act but was unsuccessful in the Parliament. He also exhausted the means of getting this question referred under s. 19 of the Constitution. His request to the Ombudsman Commission to refer the question was unsuccessful. There is no suggestion that other authorities will refer the question. I am not suggesting that a citizen’s right to complain depends on whether or not he has tried other means. Rather, if he does this, this is an indication that he is genuinely concerned with the matter. A person who simply comes straight to the court as a delaying tactic or for reasons other than that he is genuinely concerned with the matter should not be heard.
I now turn to the second question in the reference.
Under s. 18(1) of the Constitution the Supreme Court has original jurisdiction to the exclusion of other courts as to any question relating to the interpretation or application of the Constitution. However, his jurisdiction is subject to the Constitution. Where the Constitution specifically empowers any other court other than the Supreme Court to decide a question regarding the interpretation and application of the Constitution then that court shall consider the question. Such examples can be found in s. 57 and s. 135 of the Constitution, where the National Court is empowered to deal with these matters.
In the instant case, the rulings are sought under s. 23 of the Constitution. The merits of this section are yet to be resolved. However, assuming that s. 23 applies to the facts of this case, the National Court is empowered to make the appropriate orders. However, the National Court may consider it appropriate to refer the whole petition to the Supreme Court under s. 18 of the Constitution. That is a matter to be decided by the National Court. When this Court rules that the Leader of the Opposition has standing then the matter will have to go back to the National Court for determination of the merits of the case.
I would answer the questions as follows:
1. Yes.
2. In view of the majority view that s. 23 is not applicable, I would agree that the rulings sought in the petition are matters solely for determination by the Supreme Court.
MILES J: This matter was commenced by petition filed by the Right Honourable Michael Thomas Somare. In this judgment I refer to Mr. Somare as “the petitioner”, and I would conclude that he has standing sufficient for him to seek a declaration from the Supreme Court that the Defence Force (Presence Abroad) Act 1980 is unconstitutional and invalid as being beyond the powers of the National Parliament.
The question whether the petitioner has sufficient standing, or locus standi, for this purpose involves a consideration of fundamental aspects of the legal and constitutional systems of Papua New Guinea. According to s. 9 of the Constitution the laws of Papua New Guinea consist of:
(a) this Constitution; and
(b) the Organic Laws; and
(c) the Acts of the Parliament; and
(d) Emergency Regulations; and
(da) the provincial laws; and
(e) laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and
(f) the underlying law,
and none other.
In interpreting the law the courts are required to give paramount consideration to the dispensation of justice, Constitution s. 158(2). The Constitution thus recognizes that justice and the law are not necessarily coextensive.
In my view none of the laws of the nation as defined in s. 9 of the Constitution provides either in itself or in conjunction with any other or others a rule governing the recognition of locus standi for the purpose of bringing proceedings for a judicial declaration as to the constitutional validity of an Act passed by the National Parliament. Accordingly it is the duty of the Supreme Court to formulate an appropriate rule of law as part of the underlying law in accordance with Constitution Sch. 2.3.(1).
The discussion which follows proceeds from two principles basic to the constitutional law of the nation. The first principle is that the powers of the National Parliament are limited by the Constitution itself. The Constitution s. 11(1) provides that the Constitution and the Organic Laws are the Supreme Law of Papua New Guinea and, subject to the Constitution, s. 10, (construction of written laws), all acts (whether legislative executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective. It was in the application of this fundamental provision to the case in question that Frost C.J. said that “... the National Parliament has no power to make laws which exceed the powers conferred by, or are inconsistent with, the provisions of the Constitution”: Rakatani Peter v. South Pacific Brewery Ltd.[div]45. The second basic principle is that where the National Parliament has exceeded its powers, then the Supreme Court is entitled to say so. Subject to the Constitution itself, the Supreme Court has original and exclusive jurisdiction as to any question relating to the interpretation or application of a Constitutional Law: Constitution, s. 18(1). This jurisdiction has been accepted as including the power to rule that a particular piece of legislation is invalid as being outside the power of the National Parliament. Thus it is that the legislative power of the people vested in the National Parliament (Constitution, s. 100) is supervised by exercise of the judicial power of the people vested (for this particular purpose by a combination of Constitution ss. 18(1) and 158(1)) in the Supreme Court. This jurisdiction to rule legislation invalid has already been successfully invoked on a number of occasions and by a variety of procedures, for instance by special reference under s. 19, Constitutional Reference No. 2 of 1978; Re Corrective Institutions Act 1957[dv]46, reference under s. 18(2), Constitutional Reference No. 3 of 1978; Re Inter-Group Fighting Act 1977[dvi]47 and by application for order in nature of prerogative writ. The State v. The Independent Tribunal; Ex parte Sasakila [dvii]48.
From these two basic principles the question arises simply and directly: what are the rules as to the circumstances in which a litigant may seek to have the Supreme Court exercise this jurisdiction?
There is no express provision in the Constitution as to any procedure which may be adopted for invoking the Supreme Court’s power to declare legislation unconstitutional, except insofar as that power may be exercised as incidental to the giving of an advisory opinion under the Constitution, s. 19, pursuant to an application by one of the authorities empowered by s. 19(3) to make such application, or insofar as it arises out of a reference to the Supreme Court under the Constitution, s. 18(2), from some other court or tribunal during the hearing of a matter before that court or tribunal.
Clearly the petitioner is not entitled to rely upon the provisions of the Constitution, s. 19, as he is simply not one of the authorities which the Constitution has authorized to seek an opinion from the Supreme Court. If one looks to the Constitution itself to see what other procedure if any is open to the petitioner, the petitioner faces obvious difficulties. It was submitted that he may rely upon the Constitution, s. 23(2), which enables the National Court to make any order which it thinks proper for preventing or remedying a breach of a prohibition restriction or duty provided for by a Constitutional Law. In my view the Constitution, s. 23(2), does not apply to the present proceedings. There is no question raised in this case of a Constitutional Law which prohibits or restricts an act or imposes a duty. It is arguable that the Constitution operates so as to prohibit Parliament from passing unconstitutional laws and so as to impose a duty upon Parliament to act within its powers but as I see it, to regard Parliament as being subject to a prohibition restriction or duty within the Constitution, s. 23, is to place an unreal constriction on the section as a whole. The section is directed towards the imposition of sanctions upon a person (including a governmental body) in breach of the prohibition restriction or duty, and the National Parliament cannot be described either as a person or a governmental body. Nor is it appropriate to talk of the National Parliament being subject to sanctions.
The Principal Legal Adviser’s submission on this aspect was supported by reference to the decision of this Court in James Eki Mopio v. The Speaker of the National Parliament[dviii]49. In that case there was an application for prohibition and also for a declaration relating to the appointment of the Prime Minister which was alleged to be null and void. In dismissing the plaintiff’s application, the court drew attention to those provisions of the Constitution which render the proceedings of Parliament and the functions and duties of the Speaker non-justiciable (Constitution ss. 115(2), 133, 134). By way of addendum, as I see it, there appears at the end of the judgment in Mopio (supra) at p. 423 the following passage:
“A further insuperable difficulty for Mr. Mopio is that insofar as the application takes the form of a reference for the interpretation of the Constitution, s. 19(3) provides that only certain designated authorities may make such a reference to this Court, and Mr. Mopio cannot bring himself within that provision.”
I regard this passage as delivered by way of obiter dictum and made without any submissions on the point from either counsel. Whilst it is perfectly true in its terms, it is of little assistance in the present case because it is quite unclear how far the application of Mr. Mopio did in fact take the form of a reference under s. 19. An essential question for decision in the present case is whether the petitioner may seek relief apart from and notwithstanding the provisions of the Constitution, s. 19 and I do not understand the decision in Mopio v. The Speaker of the National Parliament[dix]50 to have addressed itself to that precise point. Furthermore, no question arose in that case as to the constitutional validity of legislation.
The Principal Legal Adviser’s submission, as I understand it, is essentially that the Constitution is so framed that the Supreme Court’s exclusive jurisdiction to decide on the constitutional validity of legislation may be invoked in one or two ways and in no other way. Firstly under the Constitution, s. 18, the constitutional question may arise in the course of litigation in another court, in which case, subject to the Constitution (and in particular the power of duty of the National Court to protect and enforce guaranteed rights and freedoms), that court shall, unless the question is trivial vexatious or irrelevant, refer the matter to the Supreme Court. Secondly under the Constitution, s. 19, the Supreme Court is required to give its opinion on application by an authority referred to in s. 19(3) on any question relating to the interpretation or application of any provision of a Constitutional Law including any question as to the validity of a law or proposed law.
It was submitted that the terms of the Constitution, s. 19, and in particular s. 19(3) lead to the conclusion that the Constitution, by implication, prohibits the commencement of any proceedings limited to the issue of constitutional validity except where those proceedings are brought by one of the authorities exhaustively set out in s. 19(3). The argument was put, on analogy with the role of the Attorney-General in relator proceedings at common law and equity, that the people of the nation have entrusted to those authorities alone the power and responsibility of seeking to test the constitutionality of legislation, and conversely that persons other than those authorities may impugn the validity of legislation only if they have a legally recognized right or “interest” sufficient to obtain substantial relief according to established common law or equitable principles, in which case such persons may bring proceedings in an appropriate court or tribunal for such relief. According to the submission, if and when a question relating to the interpretation of the Constitution arises during the course of those proceedings, that court or tribunal must, unless the question is trivial vexatious or irrelevant, refer the matter to the Supreme Court in accordance with the Constitution, s. 18(2).
In my view this analogy does not hold. Whilst the powers of the authorities listed in the Constitution, s. 19(3), bear a superficial similarity to the powers of the Attorney-General in England to seek injunctions in cases of public nuisance and the like, there are differences which are fundamental. First, the essential purpose of the Constitution, s. 19, is not to grant powers or confer rights on prospective litigants but to confer a jurisdiction on the Supreme Court to give advisory opinions. That jurisdiction is limited both as to subject matter and as to parties. It may be invoked only by certain specified public authorities and then only upon a question relating to the interpretation or application of any provision of a Constitutional Law. Secondly, the Supreme Court’s jurisdiction to give an advisory opinion is expressed to extend to any question as to the validity of a law or proposed law. Thus the jurisdiction is not confined to determining questions of constitutional validity nor is it confined to dealing with laws which have already come into force. Thirdly, the Supreme Court is given wide powers under s. 19(4) to make rules as to the cases and circumstances in which it may decline to give an opinion. It may decline to do so if in its opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea: Supreme Court Rules 1977, r. 12. The giving of an advisory opinion is radically different from deciding a piece of litigation between parties and it is quite outside the function of courts as they exist in the common law-equity system of England. The nature of the jurisdiction under s. 19 may be illustrated by reference to two decisions of this Court. In Constitutional Reference No. 1 of 1978 (s. 19)[dx]51 the Ombudsman referred to the Supreme Court the question as to his powers to investigate the conduct of the Public Solicitor. In Constitutional Reference No. 2 of 1978; Re Corrective Institutions Act 1957[dxi]52 the court answered questions referred by the Public Solicitor not only as to the constitutional validity of s. 30 of the Corrective Institutions Act 1957 but also as to what avenues and procedures of appeals were available from visiting magistrates in prisons. In the circumstances of each of those cases, it is difficult to see that there could be any way in which the questions asked and answered could have been put to the court otherwise than under s. 19 of the Constitution. The value of the Constitution, s. 19, to the public authorities entitled to utilize its provisions is that they need not wait until an actual dispute arises between parties before seeking the court’s opinion on the Constitutional Law in question. If the question is one of constitutional validity, the authority need not even wait until the proposed law comes into force. Hence the court’s jurisdiction under the Constitution, s. 19, must be viewed as a very special one. To attempt to categorize the present petition as a clandestine attempt to invoke the jurisdiction of the court under the Constitution, s. 19, is to raise a false issue. The court’s exclusive and original jurisdiction to decide any question relating to the interpretation or application of any provision of a Constitutional Law under the Constitution, s. 18, whilst subject to the Constitution, is not cut down in any way by the Constitution, s. 19. The effect of the Constitution, s. 19, is rather to enlarge that jurisdiction by extending it beyond consideration of existing laws to cover questions of the validity of a proposed law and by introducing the novel procedure of application by specified public authorities for judicial opinions, a procedure which does not involve the creation of a “matter” between parties.
It may be seen from the above then that it is thus far established that the Supreme Court has original and exclusive jurisdiction to decide the question posed by the petitioner as to the constitutional validity of the legislation in question and that whilst the Constitution does not expressly authorize the present proceedings by the petitioner, it does not prohibit them either expressly or by necessary implication. Is it permissible then to go beyond the Constitution in order to decide whether the petitioner has the standing to maintain these proceedings? If it is permissible, to what laws or sources of law does one look in order to find an answer?
In the first instance, the Constitution does itself provide a partial answer. The Constitution is self-executing to the fullest extent that its nature and subject matter permit: Constitution s. 11(2). For the purpose of the interpretation the provisions of Sch. 1 (Rules for Shortening and Interpretation of the Constitutional Laws) applies and, subject to that Schedule, the underlying law applies: Constitution, s. 8.
The only provision in Sch. 1 which appears to bear on the present case is Sch. 1.5. which provides that all provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning. Subject to that, the underlying law applies. By the Constitution, s. 20(2), the underlying law is until an Act of Parliament provides otherwise, as prescribed in Sch. 2.2. The underlying law as prescribed in Sch. 2.2. consists of three parts: firstly custom (with limitations), secondly the principles and rules of common law and equity as they existed in England immediately before Independence Day (with limitations) and thirdly where there appears to be no rule of law applicable and appropriate to the circumstances of the country, such appropriate rule as may be formulated having regard to the criteria set out in Sch. 2.3(1).
In relation to the precise question of locus standi which this Court is now required to determine, there has not been shown to exist any relevant custom bearing on that question and which may be applied and enforced as part of the underlying law under Sch. 2.1. Nor in my view do the principles and rules of common law and equity in England immediately prior to Independence (loosely called “the common law”) furnish an answer to the question. At common law the English Parliament’s powers are supreme. The proposition that a piece of legislation which has passed through Parliament may be invalid because the legislature had no power to pass it violates a fundamental principle of common law. On a question directed to the validity of legislation of the National Parliament of Papua New Guinea, the common law simply has no application and does not form part of the underlying law of this country under Sch. 2.2.
It may be appropriate to break off here in order to deal with what counsel for the petitioner in his submission-in-chief called “judicial methodology”, especially as it relates to custom and to development of the underlying law. It was submitted that when a court is considering the underlying law applicable to a case before it, it should first consider whether custom as adopted applied and enforced in Sch. 2.1. provides an appropriate rule of law. It was submitted that only if custom did not provide an appropriate rule of law should the court then move on to consider what rule of common law, if any, was applicable as part of the underlying law.
This approach as I understand it, is similar to that recommended by the Law Reform Commission in its report “The role of customary law in the legal system” and the draft legislation contained therein. However I do not think it is incumbent upon a court observing the transitional provisions of the Constitution, s. 20(2), and Sch. 2.1., Sch. 2.2. and Sch. 2.3. to proceed in the manner and the order suggested. In my view a court in Papua New Guinea does not discharge its duty under Sch. 2 of the Constitution without considering all the matters adverted to in Schedules 2.1. and 2.2., and if necessary Sch. 2.3. But this means little more than that a court in this country may not apply the common law without due regard to whether it is inconsistent with a constitutional law or a statute, or custom, or inappropriate to the circumstances of the country. The order in which these various factors are taken into consideration cannot be of any consequence. The suggested requirement that a court must positively decide that custom is inapplicable before in can proceed to consider the common law carries with it the obligation to commence the case with a comprehensive inquiry into all possibly relevant custom. This would place a burden upon judges and lawyers which in the light of their present training and experience would be difficult to discharge, to say the least.
The argument on behalf of the petitioner proceeded to a submission that there is a custom of the country that should be recognized, adopted, applied and enforced as part of the underlying law in accordance with Sch. 2.1. to the effect that the petitioner has the legal standing to present to the National Court the petition filed herein. This submission was insofar as it related to law supported by argument and insofar as it related to fact supported by affidavit evidence. In some instances it was not clear whether the material in the affidavits was restricted to proving facts or whether it went on to argue matters of law. Schedule 2.1. would seem to treat custom in general as a matter of fact and custom as adopted applied and enforced as a matter of law. Some of the material in the affidavits was objected to as hearsay, outside the knowledge or expertise of the deponents and so on. Counsel for the petitioner himself swore an affidavit as to the custom of his own people which he withdrew upon objection and later replaced with a similar affidavit from another deponent. The court received all the affidavit evidence subject to ruling on admissibility. I would take a very liberal view as to the admissibility of evidence relating to custom. I expect that most courts in the country would need all available assistance to inform themselves on relevant custom, particularly if it be, as suggested in Constitutional Reference No. 1 of 1977 (Sch. 2.3.)[dxii]53 (“the enticement case”), that it is only nationwide custom that is to be adopted as part of the underlying law under Sch. 2.1. Whilst there are good reasons why counsel appearing in a case should not also be a witness, the evidence of counsel is not inadmissible. If custom is not in dispute, the court may be assisted by statements from the Bar table but if there is a dispute such statements are of little value (see Siwi Kurondo v. Lindsay Dabiri [dxiii]54). If a court is to adopt apply and enforce a particular custom as a rule of law under Sch. 2.1., it should only do so after it has fully informed itself as to the precise nature and extent of that particular custom. If analogy with custom is to be used to formulate a rule of law in accordance with Sch. 2.3.(1)(c), then it need not be “proved” at all. It is clear that custom for the purposes of Sch. 2.3. is quite different from custom for the purposes of Sch. 2.1. and is to be considered in the same light as relevant statutes, legislation and relevant decisions of courts in countries similar to Papua New Guinea and so on. In any event the Native Custom (Recognition) Act 1963 ousts the strict rules of evidence and enables a court to inform itself as it sees fit on any question as to custom. There was no submission from either counsel as to whether and how far s. 8 of the Native Custom (Recognition) Act 1963 precludes a court from paying attention to custom in such a case as the present one.
I hope I do not over-simplify the material adduced by the petitioner on the question of custom when I say that it amounted to showing that a customary leader among the Coastal and Mountain Arapesh people of East Sepik has a right to be heard in a village forum when traditions of the group are broken, and that this right exists regardless of whether the leader’s personal rights or interests are affected. However, this is a far cry from showing that the custom concerned should be recognized and adopted as a rule of law governing the question of whether the petitioner has locus standi in the present proceedings. In the light of the lack of evidence of custom beyond this, I conclude that custom provides no rule of law applicable to the present case. As the common law also is deficient in providing a rule applicable to the present case, it follows that it is the duty of the court to develop the underlying law by formulating a rule of law in accordance with Sch. 2.3. For this purpose the court may act upon analogy with the custom just described; or put another way, the rule of law so formulated should not be inconsistent with such custom as has been shown to exist.
The criteria to be taken into account in formulating a new rule of law as part of the underlying law are set out in Sch. 2.3(1). The court is required to have regard to:
(a) in particular, to the National Goals and Directive Principles and the Basic Social Obligations; and
(b) to Division III.3 (basic rights)[dxiv]55; and
(c) to analogies to be drawn from relevant statutes and custom; and
(d) to the legislation of, and to relevant decisions of the courts of, any country that in the opinion of the court has a legal system similar to that of Papua New Guinea; and
(e) to relevant decisions of courts exercising jurisdiction in or in respect of all or any part of the country at any time,
and to the circumstances of the country from time to time.
The acknowledgement of basic rights which appears among the National Goals and Directive Principles indicates that it is intended that what is loosely known as the “rule of law” should apply in Papua New Guinea. It is declared in the Basic Social Obligations that all persons in the country have the basic obligations to themselves and their descendants to each other and to the Nation to respect and act in the spirit of the Constitution. It is a fundamental principle of the Constitution that Parliament may not validly act beyond the powers conferred on it. In interpreting the law the courts are required to give paramount consideration to the dispensation of justice. In interpreting the Constitution its provisions are to be given their fair and liberal meaning. All these considerations are in my view relevant to the formulation of a rule as part of the underlying law to deal with the questions now before the court.
It has been conceded by the Principal Legal Adviser that the petitioner might have sufficient standing if he could show that he had a particular interest that was affected by the Defence Force (Presence Abroad) Act 1980. For instance it was said that possibly a private soldier being sent out of the country pursuant to the Act might have standing as he would be directly affected by the Parliament’s decision. I am not quite able to see why this concession is necessary having regard to the principal argument put, namely that the subject matter of the case being constitutional, the remedy or procedure must be found in the Constitution. I can see that if the private soldier sought to enforce a right arising from the Constitution itself (for instance the right to freedom guaranteed by s. 18), then it is clear that under s. 57 he (and other persons including a person with an “interest” as provided for in s. 18(2)(c)) would have standing to enforce that right. The method of enforcement would include the seeking of a declaration that the legislation was invalid. Alternatively the person whose constitutional right was affected might seek an order in the nature of a prerogative writ as was done in The State v. The Independent Tribunal; Ex parte Sasakila [dxv]56, a case where the prosecutor’s right to remain in office as Minister for State and as Member of Parliament was at stake. But in the present case there has been no suggestion of infringement of a constitutional right. It is unnecessary and confusing in my view to talk of an “interest”. To do so is to introduce a common law concept which is quite inappropriate for the purposes both of Sch. 2.2. and Sch. 2.3.
The common law as to locus standi and interest evolved out of nineteenth century notions of public nuisance and property law. It is now under attack in those very countries where it has for so long formed part of the law.
Shortly after the federation of the Australian colonies, the High Court of Australia in Attorney-General (N.S.W.) v. Brewery Employees Union of N.S.W.[dxvi]57 took the view that old rules as to “direct material interest ... should certainly not be relaxed for the purpose of bringing in question the validity of Statutes passed either by the Commonwealth Parliament or by a State legislature”. In Anderson v. The Commonwealth[dxvii]58 the High Court refused to allow a plaintiff to seek to have a Commonwealth/State agreement declared unconstitutional as beyond the power of the Commonwealth on the ground that he could not show that he was more directly affected than other people. It seems to have been considered ever since that an Australian plaintiff must show some special detriment to his commercial or property interests; for instance possible threat of prosecution under the legislation in question, but mere payment of tax is not enough; Crouch v. The Commonwealth [dxviii]59. In other words (apart from the anomalous position of a State Attorney-General) the Australian courts have not treated cases involving constitutional validity as being any different from other cases for the purpose of locus standi: see also Robinson v. Western Australian Museum [dxix]60. The point seems simply never to have been argued.
The Australian Law Reform Commission has recommended the abolition of of the established rules as to locus standi not only in constitutional cases but in all civil actions involving the public interest, and advocates that relief should not be denied on standing grounds unless the court is satisfied that the issues sought to be raised are of no real concern to the plaintiff[dxx]61.
In Canada the Supreme Court has rid that country of the common law limitations as to locus standi, at least in constitutional matters. This Court is entitled to look at the Canadian experience having regard to Sch. 2.3(d). In Thorson v. Attorney-General of Canada[dxxi]62 it was held that the court should recognize standing in constitutional cases as a discretionary matter. Laskin J., as he then was, in delivering the majority judgment had this to say:
“In my opinion, standing of a federal taxpayer seeking to challenge the constitutionality of federal legislation is a matter particularly appropriate for the exercise of judicial discretion, relating as it does to the effectiveness of process. Central to that discretion is the justiciability of the issue sought to be raised ... Relevant as well is the nature of the legislation whose validity is challenged, according to whether it involves prohibitions or restrictions on any class or classes of person.”
Thorson’s case[dxxii]63 was followed in Nova Scotia Board of Censors v. McNeil[dxxiii]64, another decision of the Supreme Court of Canada in which the following passage occurs at p. 635:
“Thus, the fact that certain persons or classes of persons, or certain activities in which persons engage may be subjected to compulsory regulation or on pain of a penalty or other sanction does not always mean that the pith and substance of the legislation is to be determined only in that context, so as to make those regulated the only persons with a real stake in the validity of the legislation.”
In that case the editor of a newspaper (with the Attorney-General of Canada, the Canadian Civil Liberties Association and others intervening), sought declarations that the Theatres and Amusements Act 1967 of Nova Scotia was ultra vires the provincial legislature. His only concern in the matter was that he objected to the banning of the film “Last Tango in Paris”. In recognizing the plaintiff’s standing to bring the action, the court said at p. 637:
“... there is an arguable case under the terms of the challenged legislation that members of the Nova Scotia public are directly affected in what they may view in a Nova Scotia theatre, albeit there is a more direct effect on the business enterprises which are regulated by the legislation. The challenged legislation does not appear to me to be legislation directed only to the regulation of operators and film distributors. It strikes at the members of the public in one of its central aspects.”
The Australian High Court has recently left open the question of whether it should follow Thorson’s case (supra). See Attorney-General (Vic.); Ex rel. Black v. Commonwealth[dxxiv]65.
In the United States apparently the development of the rules as to standing was for some time similar to that in England. Early in the twentieth century however and since, there has been a line of cases in which, according to Professor Kenneth E. Scott in an article in (1973) 86 Harvard Law Review 645 at 651, “the plaintiff attacked the performance of acts which are unique to government or for which the nearest private analogy is not a legal wrong to anybody”. The writer goes on to formulate the questions for decision in the following way:
“A determination of whether the plaintiff in question has a ‘sufficient interest’ to maintain such a case cannot, therefore, be based solely on a determination of whether his interest is one protected at common law, the courts must look elsewhere for the answer ... If a statute establishes certain obligations or standards of conduct, and expressly provides for a remedy for those injured by their violation, we have a clear case of interests created by a statute. But if the law lays down rules of conduct for the government or private persons without any specification of private judicial remedies for their enforcement, as is true of the Constitution and many statutes, then where do we stand? Does such a law give rise to ‘an interest created by the Constitution or a statute’, on which standing may be founded?”
Professor Scott proceeds to demonstrate the circularity of discussing standing in terms of a legally protected interest in such a class of case and concludes at p. 652 that:
“... in this category of cases the courts are necessarily making a decision on their own ... with neither private law analogies nor any express statutory authorization as guides.”
It seems to me that the approach of Professor Scott is an appropriate one in the constitutional climate in Papua New Guinea where the Constitution in confining the powers of the National Parliament has in effect “laid down rules of conduct ... without any specification of private judicial remedies for their enforcement”. However this Court is not left without constitutional guidance as to how to make a decision “on its own”: Sch. 2.3. provides those very guidelines.
The present position in the United States is as summarized with approval by Murphy J. in Robinson v. Western Australian Museum[dxxv]66 and later (dissenting) in Australian Conservation Foundation Inc. v. Commonwealth[dxxvi]67 and Attorney-General (Vic.); Ex rel. Black v. Commonwealth[dxxvii]68 as follows:
“In Baker v. Carr ((1962) [1962] USSC 42; 369 U.S. 186, 204) the United States Supreme Court stated that ‘the gist of the question of standing’ is whether the plaintiff (seeking relief) has ‘alleged such a personal stake in the outcome of the controversy as to assure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination ...’ “
It is significant that in Gouriet v. Union of Post Office Workers [dxxviii]69, an important decision of the House of Lords confirming the necessity of the involvement of the Attorney-General in public interest suits in England, the Canadian and American decision (which had been cited with approval by Lord Denning M.R. in the Court of Appeal) were emphatically rejected as “unimpressive support”, precisely on the ground that they raised questions of constitutional validity which had no application in England.
The Principal Legal Adviser referred us to material from Nigeria which indicated that in that country the courts will not entertain a suit on a constitutional matter unless the plaintiff can show an interest in the common law sense. It may be that in social economic and political matters Papua New Guinea has more in common with a developing country such as Nigeria than it has with countries like Canada and the United States and that the Nigerian example has more relevance for the purpose of Sch. 2.3.(1)(d) than do decisions from North America. On the other hand we are not precisely informed as to the extent to which Nigerian courts generally are required or choose to follow English precedent. Professor Antony Allott in “New Essays in African Law” (London 1970) indicates at pp. 21 to 22 that the general law of Nigeria and its States is based on the common law of England and the doctrines of equity together with certain English statutes. The very decisions cited by the Principal Legal Adviser suggest that there is in Nigeria a much closer involvement with English law than is appropriate in this country, particularly when the necessity arises to formulate a rule under Sch. 2.3.
A principal objection in other countries to the freeing of the rules as to standing has been the “floodgates” approach, the fear that the courts would be besieged by unmeritorious applications by unworthy litigants. Reference to such a danger was made by the Principal Legal Adviser in his submissions to this Court. However experience in Canada and the United States seems to indicate that the flood has not occurred: see Australian Law Reform Commission: “Access to the Courts—1. Standing: Public Interest Suits” (Sydney 1978) at p. 4 and observations by Laskin J. in Thorson’s case[dxxix]70. What is to my mind a convincing reply to the “floodgates” argument is contained in the judgment of Murphy J. in the Australian Conservation Foundation Inc. case[dxxx]71.
I return to the circumstances of the present reference in the light of the above observations. The issue raised in the National Court was the constitutional validity of the Defence Force (Presence Abroad) Act 1980 in the light of s. 205 of the Constitution. There can be no question that this issue is clearly justiciable. The nature of that legislation is such that there are probably very few people apart from those members of the defence force likely to be affected who have an interest in the common law sense. In another sense those members may be the last to be interested in challenging the validity of the Act. Yet the potential importance to the nation of the commitment of the defence force to serve outside the borders of the country can hardly be exaggerated. Should that commitment purport to be authorized by legislation which is beyond the power of the National Parliament, it would be inappropriate for this Court, charged with the original and exclusive jurisdiction of interpreting the Constitution and with the duty of observing its spirit, to decline to say so on the basis that the present petitioner is not entitled to ask the question.
To recognize the petitioner’s standing in the present proceedings is not to exaggerate the function or status of the Leader of the Opposition. But if the recognition of standing is a discretionary matter, as I believe it should be, it is of significance that the petitioner was the leader of some thirty-seven members of the National Parliament who opposed the Act when it was a Bill before the House. There was no way of course in which he could seek an opinion from the court under s. 19 before the Bill passed into legislation, he not being one of the authorities authorized to do so by s. 19(3). In this respect it is interesting that in an article advocating the use of advisory opinions in the High Court of Australia, one writer has suggested that a certain minority of members of Parliament should be given the power to request advisory opinions on proposed legislation: Stephen Crawshaw, “The High Court of Australia and Advisory Opinions” [dxxxi]72.
Further on the question of discretion to recognize standing, it should be remembered that the petitioner has not brought the present proceedings without exploring other avenues. In fact he approached the Ombudsman Commission by letter requesting the Commission to exercise that authority’s powers under s. 19 to obtain an opinion as to the constitutional validity of the legislation. This the Ombudsman Commission declined to do and instead expressed the view that the petitioner had the right himself under s. 22 and s. 23 of the Constitution to bring the present proceedings by way of petition in the National Court. The Ombudsman Commission has not sought to intervene to substantiate this view and of course it is not obliged to do so. The view expressed seems to be the explanation of why the proceedings have been by way of the unusual form of a petition, rather than by statement of claim or originating summons.
If the standing of the petitioner is recognized, that is of course not an end of the matter. He has sought a declaration without further substantial relief and this in itself is no barrier to a declaratory order being made. However there still remains the discretion in the court to decline to make the declaratory order. If the matters I have referred to above as going to discretion to recognize standing are more properly regarded as going to discretion to make the declaratory order, I do not see that as closing the door of the court to the plaintiff as a person genuinely concerned in the subject matter of the case. Indeed I see merit in regarding the consideration of standing as part of the merits of the case itself. Gibbs J., as he then was, has referred to the situation where it may be a relatively simple matter to uphold the constitutional validity of legislation without embarking on questions relating to standing which may present complex issues of fact and more difficult issues of law: Robinson v. Western Australian Museum [dxxxii]73. In other words it would be preferable if standing in constitutional matters was not decided until the facts were established, the legislation properly examined and the case as a whole fully argued. The court is capable of protecting itself against frivolous applications.
The basis of the claim in the petition that the Defence Force (Presence Abroad) Act 1980 is outside the powers of the National Parliament was of course not argued before us. It appears from the terms of the petition filed that it would be submitted, inter alia, that the Act seeks to authorize the commitment of defence force personnel outside the country for purposes other than those set out in the Constitution and that it seeks to vest the Prime Minister (and the Speaker) with powers which may not be lawfully vested in him. Under the Constitution, s. 205, at least some of the steps involved in committing defence force personnel abroad are subject to the scrutiny of Parliament. It may be argued that the Act whittles down this power of scrutiny. The “pith and substance” of the legislation affects the distribution of powers among various components of the State. If those powers are to be distributed or redistributed by unconstitutional legislation, I find it hard to see how it can be said that the Leader of the Opposition does not have a proper concern with the constitutional validity of that legislation. That his concern is genuine is illustrated by the fact that he took what steps were available to him in Parliament to block the legislation and that he thereafter unsuccessfully sought to enlist the assistance of the Ombudsman Commission under the Constitution, s. 19. To borrow from the Canadian and United States cases, the legislation may be said to “strike at” the Leader of the Opposition “in its central aspects”, and that he has such a “personal stake” in the outcome of the present proceedings as to assure the proper presentation of precise issues to this Court if and when it eventually comes to determine whether the Defence Force (Presence Abroad) Act 1980 is within the legislative competence of the National Parliament. The paramount consideration of the dispensation of justice, a fair and liberal interpretation of the provisions of the Constitution and the Basic Social Obligation to respect and act in the spirit of the Constitution all require a recognition of the petitioner’s standing in the present proceedings.
For my own part I would be prepared to recognize the standing of the petitioner for the reasons above stated. I would add however that I would not automatically reject any argument that the petitioner is entitled to bring the present proceedings by reason of his position as a taxpayer. That argument was put and rejected by the learned judge at first instance in the National Court but it was not repeated before us. It was clear law in Australia until 1981 that the payment of tax is not enough to permit a plaintiff to attack legislation or appropriation of public moneys as unconstitutional: Anderson v. The Commonwealth [dxxxiii]74, Crouch v. The Commonwealth [dxxxiv]75, but in Attorney-General (Vic.); Ex rel. Black v. Commonwealth[dxxxv]76 the point was left open. It is not the law in Canada: Thorson v. Attorney-General of Canada [dxxxvi]77 nor in the United States: Flast et al. v. Cohen et al. [dxxxvii]78. In England a ratepayer may attack municipal expenditure on the ground that it is ultra vires: Prescott v. Birmingham Corporation [dxxxviii]79. Apart from the lack of argument, the question could not be decided in the present case without evidence of how the legislation was likely to affect the expenditure of public money derived from the petitioner as taxpayer.
The second question in the reference to this Court is whether the rulings sought in the petition are matters solely for determination by the Supreme Court. In my view the only matter properly raised in the petition is whether the Defence Force (Presence Abroad) Act 1980 is unconstitutional and invalid as being outside the powers of the National Parliament. The exclusive and original jurisdiction of the Supreme Court to decide questions of interpretation of Constitutional Laws is itself subject to the Constitution: s. 18(1). The Constitution gives to the National Court certain powers to decide questions involving the enforcement of constitutionally guaranteed rights and freedoms under the Constitution, s. 57: The State v. Peter Painke (No. 2)[dxxxix]80, and as to certain matters relating to elections upon the hearing of an election petition under s. 135: In re Moresby North East Election Petition [dxl]81. Generally however and subject to the Constitution, s. 18(2) has application and whatever a constitutional question arises in any court or tribunal, that court or tribunal shall, unless the question is trivial vexatious or irrelevant, refer the matter to the Supreme Court. Now that the matter is in the Supreme Court there is little point in referring it back to the National Court. The only issue remaining, namely the constitutional validity of the Defence Force (Presence Abroad) Act 1980, will have to be decided in the Supreme Court.
I agree with the answers of the Chief Justice to the questions posed on the reference.
Ordered as follows:
1. The petitioner has sufficient legal standing to seek a ruling from this court as to the matters raised in the petition.
2. The matters raised are solely for determination by this court.
3. The parties are at liberty to apply to the Chief Justice for directions.
4. Costs reserved.
Solicitor for the petitioner: P. Donigi.
<
[cdlxi]Final report of the Constitutional Planning Committee p. 8/16.
[cdlxii][1978] A.C. 435.
[cdlxiii][1978] P.N.G.L.R. 421.
[cdlxiv][1978] P.N.G.L.R. 404.
[cdlxv](1974) 43 D.L.R. (3d.) 1; (1976) 55 D.L.R. (3d.) 632.
[cdlxvi]See the Preamble to the Constitution.
[cdlxvii]See the Preamble to the Constitution.
[cdlxviii]Order 5(3) of the Standing Orders of the National Parliament and s. 6 of the Constitution.
[cdlxix][1977] P.N.G.L.R. 420 at p. 423.
[cdlxx](1955) Ch. 210.
[cdlxxi][1966] 2 All E.R. 196; (1966) 1 W.L.R. 899.
[cdlxxii](1969) 1 Lloyd’s Rep. 120.
[cdlxxiii](1972) Ch. 470.
[cdlxxiv][1977] 3 W.L.R. 300; [1977] 3 All E.R. 70.
[cdlxxv][1977] 1 N.S.W.L.R. 43.
[cdlxxvi](1912) 15 C.L.R. 182.
[cdlxxvii](1913) 17 C.L.R. 644.
[cdlxxviii](1957) 99 C.L.R. 28.
[cdlxxx](1945) 71 C.L.R. 545.
[cdlxxxi](1922) 52 O.L.R. 469.
[cdlxxxii](1860) 8 W.R. 748; 11 E.R. 639.
[cdlxxxiii](1853) 1 W.R. 448; 1 C.L.R. 523.
[cdlxxxiv][1879-80] 5 A.C. 820.
[cdlxxxv][1980] Q.B. 407.
[cdlxxxvi][1968] USSC 133; 392 US 83 (20 L Ed 2d 947, 88 S Ct 1942, at p. 961).
[cdlxxxvii][1965-66] P. & N.G.L.R. 59.
[cdlxxxviii]Unreported judgment No. SC185 of 25th November, 1980.
[cdlxxxix][1980] P.N.G.L.R. 274.
[cdxc][1980] P.N.G.L.R. 97.
[cdxci][1977] 3 All E.R. 70.
[cdxciii][1902] UKLawRpCh 174; [1903] 1 Ch. 109 at p. 114.
[cdxciv][1977] 3 All E.R. 70.
[cdxcv][1973] Q.B. 629.
[cdxcvi][1977] 3 All E.R. 70.
[cdxcvii](1880) 14 Ch. D. 458.
[cdxcviii][1961] 2 All E.R. 504.
[cdxcix](1980) 54 A.L.J.R. 176.
[d](1974) 43 D.L.R. (3d) 1.
[di](1975) 422 US 490.
[dii][1980] 2 All E.R. 378.
[diii][1980] 2 All E.R. 378.
[div][1976] P.N.G.L.R. 537 at p. 541.
[dv][1978] P.N.G.L.R. 404.
[dvi](1978) P.N.G.L.R. 421.
[dvii][1976] P.N.G.L.R. 491.
[dviii][1977] P.N.G.L.R. 420.
[dix][1977] P.N.G.L.R. 420.
[dx][1978] P.N.G.L.R. 345.
[dxi][1978] P.N.G.L.R. 404.
[dxii][1978] P.N.G.L.R. 295 at p. 297 (per Prentice C.J.).
[dxiii]Unreported National Court judgment N258 dated 26th September, 1980.
[dxiv]This appears to be a reference to Pt. III Div. 3.
[dxv][1976] P.N.G.L.R. 491.
[dxvi][1908] HCA 94; (1908) 6 C.L.R. 469 at p. 491 per Griffith C.J.
[dxvii](1932) 47 C.L.R. 50.
[dxviii](1948) 77 C.L.R. 339.
[dxix](1977) 51 A.L.J.R. 806.
[dxx]“Access to the Courts—1. Standing: Public Interest Suits”, Sydney, 1978.
[dxxi](1974) 43 D.L.R. (3d) 1.
[dxxii](1974) 43 D.L.R. (3d) 1.
[dxxiii](1976) 55 D.L.R. (3d) 632.
[dxxiv](1981) 55 A.L.J.R. 155.
[dxxv] (1977) 51 A.L.J.R. 806 at p. 831.
[dxxvi](1980) 54 A.L.J.R. 176 at p. 191.
[dxxvii][1981] HCA 2; (1981) 55 A.L.J.R. 155 at. p. 179.
[dxxviii][1977] UKHL 5; [1977] 3 All E.R. 70 at p. 82.
[dxxix](1974) 43 D.L.R. (3d) 1 at p. 7.
[dxxx](1980) 54 A.L.J.R. 176 at p. 192.
[dxxxii] (1977) 51 A.L.J.R. 806 at p. 831.
[dxxxiii](1932) 47 C.L.R. 50.
[dxxxiv](1948) 77 C.L.R. 339.
[dxxxv](1981) 55 A.L.J.R. 155.
[dxxxvi](1974) 43 D.L.R. (3d) 1.
[dxxxvii][1968] USSC 133; 392 US 83 (20 L Ed 2d 947, 88 S Ct 1942 at p. 961).
[dxxxviii](1955) Ch. 210.
[dxxxix][1977] P.N.G.L.R. 141.
[dxl][1977] P.N.G.L.R. 429 at p. 432 per Prentice Dep. C.J.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PNGLR/1981/265.html