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SCR No 3 of 1984; Re Amendment of Constitution Laws [1984] PNGLR 374 (19 November 1984)

Papua New Guinea Law Reports - 1984

[1984] PNGLR 374 - SCR No 3 of 1984; Re Amendment of Constitution Laws 

[1984] PNGLR 374

SC281

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SPECIAL CONSTITUTIONAL REFERENCE NO. 3 OF 1984 (RE CONSTITUTION)

SPECIAL REFERENCE PURSUANT TO S 19 OF THE CONSTITUTION BY THE PRINCIPAL LEGAL ADVISER

Waigani

Kidu CJ Bredmeyer McDermott JJ

24 October 1984

19 November 1984

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Alterations to - Requirements to be met - Division by prescribed majority “expressed on at least two occasions after opportunity for debate on the merits” - Constitution, s. 14.

Section 14 of the Constitution prescribes the manner of making alterations to the Constitution as follows:

(1)      The proposed law must be supported on a division by a prescribed majority (determined by the Constitution, s. 17) “expressed on at least two occasions after opportunity for debate on the merits”.

(2)      This debate must take place during different meetings of Parliament separated by at least two months.

(3)      The proposed law must be gazetted and circulated to Members not less than one month before its introduction into the Parliament.

(4)      No amendments can be moved to a proposed law unless also circulated before the end of a meeting of Parliament at which the first opportunity for debate occurs; and

(5)      The Speaker must certify that these requirements have been met.

Held

(1)      If under s. 14 of the Constitution, a proposed law to after the Constitution or a proposed Organic Law is not supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with s. 17 of the Constitution on the first or second occasion after opportunity for debate on the merits the proposed law need not:

(a)      be published again by the Speaker in full in the National Gazette; and need not be

(b)      circulated again, in accordance with the Standing Orders of the Parliament to all Members of the Parliament not less than one month before it is formally introduced again into the Parliament.

(2)      Any number of attempts may be made to obtain the prescribed majority of votes either:

(a)      during the same meeting of Parliament in which the proposed law failed to gain the required support; or

(b)      in any subsequent meeting of the Parliament, provided the vote is taken at least two months later and is preceded by further debate on the merits.

Special Constitutional Reference

This was a special reference pursuant to s. 19 of the Constitution by the Principal Legal Adviser to the National Executive of two questions relating to the interpretation of the Constitution. The questions appear at the beginning of the reasons for judgment hereunder.

Counsel

A. Tadabe, to argue the affirmative case.

P. Young, to argue the negative case.

Cur. adv. vult.

19 November 1984

KIDU CJ BREDMEYER MCDERMOTT JJ: This is a special reference pursuant to the Constitution, s. 19, by the Principal Legal Adviser to the National Executive for the opinion of this Court on the following questions:

“1.      If, under Section 14 of the Constitution, a proposed law to alter the Constitution or a proposed Organic Law is not supported on a division in accordance with the Standing Orders of the Parliament by the prescribed majority of votes determined in accordance with s. 17 of the Constitution on the first or second occasion after opportunity for debate on the merits the proposed law:

(a)      be published again by the Speaker in full in the National Gazette; and

(b)      circulated again, in accordance with the Standing Orders of the Parliament to all Members of the Parliament not less than one month before it is formally introduced again into the Parliament;

or

2.       Can any number of attempts be made to obtain the prescribed majority of votes either:

(a)      during the same meeting of Parliament in which the proposed law failed to gain the required support, or

(b)      in any subsequent meeting of the Parliament?”

Section 14 is headed “Making of Alterations to the Constitution and Organic Laws” and sets out how alterations are to be achieved:

(1)      The proposed law must be supported on a division by a prescribed majority (determined by the Constitution, s. 17) “expressed on at least two occasions after opportunity for debate on the merits”;

(2)      This debate must take place during different meetings of Parliament separated by at least two months;

(3)      The proposed law must be gazetted and circulated to Members not less than one month before its introduction into the Parliament;

(4)      No amendments can be moved to a proposed law unless also circulated before the end of a meeting of Parliament at which the first opportunity for debate occurs; and

(5)      The Speaker must certify that these requirements have been met.

The Constitution, s. 13, is also relevant in that it requires a constitutional amendment to be so expressed and to be certified in accordance with the s. 14 requirements.

The Constitutional Planning Committee intended there to be a change to the Constitution only if it was in accordance with s. 14. (See C.P.C. Report par. 40 at 6/25.)

The questions asked can be put more simply: what happens if the required majority of votes is not obtained on the first or second occasion after the debate on the merits? Does this failure require the provisions of s. 14 to be put into operation again?

During argument, it became clear that the answer hinges on the words “prescribed majority of votes ... expressed on at least two occasions after opportunity for debate on the merits”. Part XVIII of the Standing Orders of the National Parliament provides for a “division” — how the votes of the Members in the Parliament are to be taken, counted and recorded. No other provisions apply to voting. There is nothing specific in the Constitution, s. 13 and s. 14, which says what will happen if there is failure to obtain the prescribed majority of votes.

Parliament on 11 November 1982 made a Sessional Order entitled: “The Procedure for Making Organic Laws and Alterations to the Constitution and Organic Laws”. Clauses 4(c) and 4(d) of the Order dealing with the first vote provide:

(c)      the first vote to be recorded, must be supported by the appropriate majority as required by the Constitution;

(d)      if the proposed law does not receive the support of the required majority it lapses.

Clauses 7(c), 7(d) and 7(e) dealing with the second vote provide:

(c)      the second vote shall be recorded and must be supported by the appropriate majority as required by the Constitution;

(d)      if the proposed law is supported by the required majority it shall be read a third time, and shall become law on the certification of Mr Speaker;

(e)      if the proposed law does not receive the support of the required majority, it lapses.

Because the Constitution is silent on what happens when the first or second vote fails to get the prescribed majority we do not regard cll. 4(a) and 7(e) of the Sessional Order as invalid. They are not inconsistent with the Constitution, s. 14. So long as those Sessional Orders are there, they are valid and take effect unless they can be waived or suspended. But constitutionally cll. 4(d) and 7(e) are not necessary. They are not required by s. 14. If they can be amended or suspended then s. 14 itself imposes no bar to a failed “first” vote being followed by a successful “first” vote, or a successful “second” vote. But, there must be opportunity for debate on the merits before the first successful vote and, at least two months later and in a different meeting of Parliament, before the second successful vote. Must there be further debate between a first failed vote and the first successful vote, or between a second failed vote and a second successful vote?

The section refers to “the prescribed majority of votes ... expressed on at least two occasions after opportunity for debate on the merits”. That means that the vote can be taken on more than two occasions and we infer that the proposed law can be debated on more than two occasions. Section 14 requires that the first successful vote should be taken after circulation and gazettal of the proposed law and after debate on the merits and that the second successful vote should be taken at a different meeting of Parliament at least two months after the first meeting and again after debate on the merits. We have said that the first failed vote can be followed by a successful vote. The only recurring conditions are that the debates be in different meetings of the Parliament and be separated by at least two months.

The spirit of s. 14 is that successful votes should be preceded by a debate on the merits so that the members are well informed before they vote. In our view, this requirement cannot be met if the proposed law is debated at one meeting and then eventually voted for at another meeting.

Although Parliament may vote on a Proposed Law more than twice, it is implicit in s. 14(2)(a) that such votes must occur within the life of a Parliament.

We would answer the questions asked:

(1)(a)  No.

(b)      No.

(2)(a)  No.

(b)      Yes, provided the vote is taken at least two months later and is preceded by further debate on the merits.

Questions answered accordingly.

Lawyer for the affirmative case: The Principal Legal Adviser.

Lawyer for the negative case: The Parliamentary Counsel.