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Haiveta, Leader of the Opposition v Wingti, Prime Minister; and Attorney-General; and National Parliament [1994] PNGLR 197 (25 August 1994)

PNG Law Reports 1994

[1994] PNGLR 197 - Christopher Haiveta, Leader of the Opposition v Paias Wingti, Prime Minister; and Attorney-General; and National Parliament 

[1994] PNGLR 197

U13

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CHRISTOPHER HAIVETA, LEADER OF THE OPPOSITION

V

PAIAS WINGTI, PRIME MINISTER

OF PAPUA NEW GUINEA;

ATTORNEY GENERAL AND

NATIONAL PARLIAMENT OF PAPUA NEW GUINEA (NO 3)

Waigani

Amet CJ Kapi DCJ Los Salika Jalina JJ

3-4 August 1994

25 August 1994

CONSTITUTIONAL LAW - Parliament - Vacancy in office of Prime Minister when Governor-General advised in writing - Resignation not dependent on Parliament being advised - Constitution s 146.

CONSTITUTIONAL LAW - Parliament - Appointment of new Prime Minister when Parliament in session - To be considered "next sitting day" after Parliament is advised of vacancy - Constitution s 142(3).

CONSTITUTIONAL LAW - Interpretation - Must uphold justice - To be generous and avoid legalism.

CONSTITUTIONAL LAW - Interpretation - Interpretation Act Ch 2 not relevant when interpreting Constitutional Laws.

WORDS AND PHRASES - "Next sitting day" - Constitution s 142(3).

Facts

On appeal against the decision of the National Court in Haiveta v Wingti (No 1), reported in this volume at p 160, several grounds of appeal were struck out by the Supreme Court's decision in Haiveta v Wingti (No 2), reported in this volume at p 189. During argument of the hearing on the remaining grounds of appeal, the appellant conceded that:

1.       the first respondent resigned from office as Prime Minister on 23 September 1993, in accordance with the requirements of s 146(1) of the Constitution;

2.       on the same day, the Head of State advised the Speaker of the Parliament that the Prime Minister had resigned from office;

3.       the Speaker advised the Parliament of the fact of the Prime Minister's resignation shortly after it met on 24 September 1993; and

4.       the question of the election of a new Prime Minister was thereby raised, and the first respondent was nominated and re-elected as the Prime Minister on 24 September 1993.

Nevertheless, the appellant argued that, under s 142(3) of the Constitution, the question of the appointment of the Prime Minister should not have been considered by the Parliament until "the next sitting day" after the Parliament was informed of the resignation of the Prime Minister. The first respondent cross-appealed. The main ground of the cross-appeal was the failure of the trial Judge to refuse equitable relief to the plaintiff in view of the plaintiff's failure to exhaust alternative remedies, and, in particular, the failure to raise with the Parliament the issues concerning appointment of the Prime Minister at the next sitting day of the Parliament following 24 September 1993.

Held

1.       When Parliament is in session at a time when the question of the appointment of a Prime Minister arises, the time when that question must be considered by the Parliament under s 142(3) of the Constitution is "the next sitting day" after the Parliament is informed that the need to make an appointment has arisen.

2.       The resignation of the first respondent as Prime Minister on 23 September 1993 was valid, but his purported election by the Parliament and re-appointment by the Head of State as Prime Minister on 24 September was invalid for non-compliance with s 142(3). The first respondent continued in office as Prime Minister following his resignation by virtue of s 147(1)(b) and (2) of the Constitution. By virtue of the advice of the resignation of the Prime Minister given to the Speaker and the Parliament on 24 September 1993, the question of the appointment of the Prime Minister should be considered on the next sitting day of the Parliament.

3.       Per Kapi DCJ (Los and Jalina JJ concurring), because of the concession made at trial by the appellant, namely that "if the occasion for the appointment of Prime Minister arose when the Governor-General received the Prime Minister's resignation ... the appointment of the new Prime Minister on 24 September was valid", the trial Judge did not get the benefit of full argument on the issue of the meaning of the words "next sitting day". The trial Judge erred in law in accepting the plaintiff's concession. The respondent's interpretation of "next sitting day" could be abused by an incumbent Prime Minister to deny the Opposition a meaningful opportunity to contest the appointment of a new Prime Minister and was contrary to the spirit of the Constitution. The spirit of the Constitution involves such things as the right and a reasonable opportunity to elect and be elected to public office (s 50), the dispensation of justice (s 158(2)), equality of opportunity and participation (second National Goal and Directive Principle), and the obligation to act in the spirit of the Constitution (Basic Social Obligation (a)), a constitution which promotes the ideals of a free, fair, and democratic system of government.

4.       Per Amet CJ (Los and Jalina JJ concurring), the general spirit of the Constitution in respect of its aims of an open and democratic parliamentary government and collective responsibility of the Executive to the Parliament, and the need to avoid the appearance of conspiracy, unfairness, and manipulation for personal benefit, require that the Parliament be informed of such important issues as the need to appoint a Prime Minister at least one sitting day before it considers the question of appointment.

5.       Per Salika J, the respondents' interpretation of the phrase "next sitting day", as used in s 142(3) of the Constitution, permits the government and the Prime Minister of the day to use s 142(3) to avoid facing a vote of no confidence. It was, accordingly, contrary to the spirit of the Constitution. As the body that appoints the Prime Minister, the Parliament must be the body where the question of resignation and appointment is raised in order to determine when the "next sitting day" occurs for the purposes of s 142(3).

6.       Per Amet CJ (Los and Jalina JJ concurring), the first respondent's contention that the appellant had an alternative remedy available was misconceived. The number of Members of Parliament supporting the first respondent in the Parliament at the time the appointment of the Prime Minister was considered on 24 September 1993 rendered the subsequent raising of the issue in the Parliament impractical.

7.       Per Kapi DCJ (Los and Jalina concurring), remitting the issue of the manner in which the Prime Minister had been appointed on 24 September to Parliament at its next sitting day would, in effect, concede the validity of the appellant's argument about the meaning of the phrase "next sitting day", as used in s 142(3). Hence, the main ground of the cross-appeal was misconceived.

8.       Per Amet CJ (Los and Jalina JJ concurring), judicial interpretation of the Constitution must uphold justice in the sense of what the judge believes ordinary Papua New Guineans might reasonably regard as right and in accordance with their objective perception of the public or national interest.

9.       Per Kapi DCJ (Los and Jalina JJ concurring), interpretation of a written Constitution must be generous, avoiding legalism, and involving interpretation principles of its own, suitable to its character, without necessary acceptance of all the presumptions relevant to interpretation of other legislation.

10.     Per Jalina J (Kapi DCJ and Salika J concurring), ss 2 and 3(1) of the Interpretation Act Ch 2 provide that that Act is to be applied in interpretation of Acts of the Parliament. As Constitutional Laws are not Acts of the Parliament, s 11(1) of the Interpretation Act, concerning computing of time, cannot be used when interpreting s 142(3) of the Constitution.

Cases Cited

Papua New Guinea cases cited

Haiveta v Wingti (No 1) [1994] PNGLR 160.

Joshua v Meya [1988-89] PNGLR 188.

Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122.

Mopio v Speaker of the National Parliament [1977] PNGLR 420.

NEC v PEA [1993] PNGLR 264.

SCR No 2 of 1992; re Leadership Tribunal [1992] PNGLR 336.

State v Independent Tribunal; Ex Parte Sasakila [1976] PNGLR 491.

State v NTN Pty Ltd [1992] PNGLR 1.

Other cases cited

Attorney-General of The Gambia v Jobe [1984] 1 AC 689; [1984] 3 WLR 174.

Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319; [1979] 2 WLR 889; [1979] 3 All ER 21.

Ong Ah Chuan v Public Prosecutor [1981] AC 648; [1980] 3 WLR 855.

Societe United Docks v Government of Mauritius [1985] AC 585; [1985] 2 WLR 114; [1985] 1 All ER 864.

Counsel

B Narakobi, for the appellant.

J Reeve, for the first respondent

R Pato, for the second respondent.

J Briggs, for the third respondent.

25 August 1994

AMET CJ:  The appellant, who is the Leader of the Opposition in the National Parliament of Papua New Guinea (hereafter referred to as the Parliament), made application by originating summons to the National Court, challenging the constitutional validity of the Parliament's decision in electing the first respondent as Prime Minister of Papua New Guinea on 24 September 1993. The application sought the following declarations:

"1.      A DECLARATION that the first defendant was not duly elected as Prime Minister on 24 day of September 1993, and, that his election and appointment as Prime Minister be declared null and void.

2.       A DECLARATION that the resignation of the first defendant as Prime Minister remains in force until a new Prime Minister is duly elected.

2A.     Alternatively, a declaration for the purposes of s 145(4) of the Constitution, that the date of appointment of the first defendant as Prime Minister is the date of his initial appointment following the 1992 National General Elections.

3.       Any other Order the Court deems fit.

4.       AN ORDER that the first and second Defendants pay the Plaintiff's costs in these proceedings.

THE plaintiff claims an Order that a new election of the Prime Minister be conducted in accordance with s142(3) of the Constitution."

These applications were dismissed by the National Court. (See Haiveta v Wingti (No 1) at p 160 in this volume.) The appellant appeals to this Court from that decision.

The Parliament commenced its September 1993 session on Tuesday 21 September and sat also on Wednesday the 22nd, Thursday the 23rd, and adjourned on Friday the 24th to November 1993.

Some relevant facts, as found by the trial Judge and which are not disputed in this appeal, are that:

1.       On the evening of Thursday 23 September 1993, the first respondent, Paias Wingti, the Prime Minister, gave notice of his resignation as Prime Minister in writing to his Excellency Sir Wiwa Korowi, the Governor-General and Head of State, pursuant to Constitution s 146(1).

2.       On the same evening, 23 September 1993, the Governor-General advised the Prime Minister in writing, purporting to accept the resignation and advising that he, the Governor-General, would advise the Speaker to advise the Parliament under the appropriate provision of the Constitution.

3.       On the same evening, 23 September 1993, the Governor-General wrote to the Speaker of Parliament, William Skate, advising of the Prime Minister's resignation in accordance with s 146(1) of the Constitution.

4.       Also on the same evening, 23 September 1993, the Prime Minister wrote to the Speaker advising of his resignation notice to the Governor-General.

On the morning of Friday 24 September 1993, when Parliament resumed sitting, the Speaker notified the House that he had been advised by the Head of State that the Prime Minister had on 23 September formally resigned his office. The Speaker notified Parliament that, by virtue of Constitution s 142(3), the first matter of business must be the election of a new Prime Minister. Despite objection from Opposition members, the Speaker then called for nominations. The member for Western Highlands, Mr Paias Wingti, was the only nomination. In protest, the members of the Opposition walked out of the chambers. A vote was taken, and the Speaker confirmed Paias Wingti re-elected as Prime Minister, by a vote of 59 in favour and nil against.

The following four grounds of appeal were argued before this Court:

A.       That the learned judge erred in finding as follows:

(iii)     that a vacancy occurred requiring the election of a new Prime Minister at the time when the First Respondent placed his signature on a letter of resignation with the Governor-General.

(iv)     that there was nothing in s 142 of the Constitution and in particular s 142(3) that gave any indication that the vacancy (the occasion for the appointment of a Prime Minister) arose when the Parliament was so informed.

(v)      that advice to the Speaker was advice to the House, since the Speaker had as his function the regulation of its proceedings.

(vi)     that s 142(3) provides that the Prime Minister shall be elected on 'the next sitting day' after a vacation."

The principal relevant provisions are to be found in Part VI, Division 4, Subdivision B, ss 141-145 of the Constitution that provide for the Ministry. The specific provisions more directly relevant to these issues are the following:

"141.   Nature of the ministry: collective responsibility

The Ministry is a Parliamentary Executive, and therefore:

(a)      no person who is not a member of the Parliament is eligible to be appointed to be a Minister, and, except as is expressly provided in this Constitution to the contrary, a Minister who ceases to be a member of the Parliament ceases to hold office as a Minister; and

(b)      it is collectively answerable to the People, through the Parliament, for the proper carrying out of the executive government of Papua New Guinea and for all things done by or under the authority of the National Executive; and

(c)      it is liable to be dismissed from office, either collectively or individually, in accordance with this Subdivision.

142.    The Prime Minister

(1)      An office of Prime Minister is hereby established.

(2)      The Prime Minister shall be appointed, at the first meeting of the Parliament after the general election and otherwise from time to time as the occasion for the appointment of a Prime Minister arises, by the Head of State, acting in accordance with a decision of the Parliament.

(3)      If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

(4)      If the Parliament is not in session when a Prime Minister is to be appointed, the Speaker shall immediately call a meeting of the Parliament, and the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day.

146.    Resignation.

(1)      The Prime Minister may resign from office by notice in writing to the Head of State.

(2)      A Minister other than the Prime Minister may resign from office by notice in writing to the Prime Minister.

147.    Normal term of office

(1)      Unless he earlier:

(a)      dies; or

(b)      subject to Subsection (2), resigns; or

(c)      subject to Subsection (3), ceases to be qualified to be a Minister; or

(d)      is dismissed or removed from office,

a Minister (including the Prime Minister) holds office until the next appointment of a Prime Minister.

(2)      Notwithstanding Subsection (1)(b):

(a)      a Prime Minister who resigns; and

(b)      a Ministry that resigns collectively,

shall continue in office until the appointment of the next Prime Minister."

It is common ground and not disputed by the appellant that the Prime Minister effectively resigned from office as Prime Minister upon serving notice in writing to the Head of State on the evening of Thursday 23 September 1993. Section 146 (1) is self-executing. The effective resignation of the Prime Minister is not dependent upon acceptance of that resignation by the Head of State or giving of notice of that to Parliament.

Sections 147(1)(b) and 147(2)(a), however, provide that notwithstanding the effective resignation under section 146(1), a Prime Minister who resigns shall continue in office until the appointment of the next Prime Minister.

GROUND A(III)

Because it is common ground, and not in dispute, that the effective resignation of the Prime Minister takes place upon the notice in writing being served upon the Head of State, it is also not in dispute that, thereby, a vacancy in the Office of the Prime Minister occurs, notwithstanding that the Prime Minister would continue in office pursuant to s 147(2)(a) until the appointment of a new Prime Minister. It is also not in dispute, therefore, that the vacancy required the appointment of a new Prime Minister at the time of effective resignation, when the notice in writing is received by the Head of State. Consequently, the conclusion or finding by the learned trial judge that a vacancy occurred requiring the appointment of a new Prime Minister at the time when the first respondent (the Prime Minister) placed his signature on a letter of resignation with the Governor-General is not wrong. This ground of appeal is, therefore, dismissed.

GROUND A(IV)

This ground challenges the finding by the learned trial judge that s 142(3) did not give any indication that the vacancy (the occasion for the appointment of a Prime Minister) arose when the Parliament was so informed. As under the preceding ground vacancy has been conceded to occur at the moment of effective resignation, the time the notice of resignation is received by the Head of State, it is conceded by the appellant that s 142(3) does not specifically indicate further that the vacancy is dependent upon Parliament being informed of the resignation. This ground of appeal is, therefore, dismissed.

GROUND A(V)

This ground of appeal relates to what was in fact an obiter dicter finding by the trial judge at p 187:

"There is nothing in s 142 of the Constitution, and in particular s 142(3), that gives an indication that the vacancy arises when the Parliament is so informed. If in fact it were necessary, and I do not say it is, then it may be said that in any case, advice to the Speaker is advice to the House, since the Speaker has amongst his functions the regulating of its proceedings. (s 108 Constitution)"

Clearly, in my view, the finding appealed against was an alternative obiter conclusion by the trial judge which was not primary to his ruling. The principal basis for the ruling was that s 142(3) did not indicate that the vacancy arose when Parliament was informed. But His Honour proceeded in the alternative if that conclusion were wrong and it was necessary for Parliament to have been informed before a vacancy could be said to have arisen, and His Honour concluded that advice to the Speaker was sufficient advice to Parliament. This ground of appeal, therefore, does not arise for consideration.

GROUND A(VI)

The contention by the respondents in relation to this ground is that nowhere in the trial judge's judgment did he state that s 142(3) provides that the Prime Minister shall be elected on the next sitting day after a vacancy arises. However, the submission on behalf of the appellant is that, because the primary conclusion is that resignation by the Prime Minister was effected on 23 September 1993, and the Court's acceptance of the concession by counsel for the plaintiff that "if the occasion for the appointment of Prime Minister arose when the Governor-General received the Prime Minister's resignation, then the plaintiff concedes that the appointment of the new Prime Minister on 24 September was valid", that has the effect of the conclusion that the re-election of the first respondent as the new Prime Minister on 24 September was, in fact, on the next sitting day after the vacancy occurred, as required by s 142(3).

This then is the central issue in this appeal. Accepting that the Prime Minister had effectively resigned pursuant to s 146(1) on the evening of Thursday 23 September 1993, was the re-election on Friday 24 September 1993 and the appointment of Paias Wingti, by the Head of State, as Prime Minister an appointment "on the next sitting day", as prescribed under s 142(3)?

The principal contention by the appellant was that though resignation was effective and complete upon the tendering of the letter of resignation by the Prime Minister upon the Head of State on the evening of Thursday 23 September 1993, "the question of the appointment" of a Prime Minister was to be the first matter for consideration "on the next sitting day". It was submitted that the phrase "on the next sitting day" was not computed from the day on which resignation was effected but from the day that Parliament was informed of the need to appoint a Prime Minister and the question of that issue of appointment being placed before Parliament. It was submitted, therefore, that the election and appointment of a new Prime Minister ought not to have taken place on the same sitting day that Parliament was informed to appoint a Prime Minister. Rather, it was contended that after Parliament was properly informed, the question of appointment then arising, the appointment process ought strictly to have been adjourned or deferred to "the next sitting day" therefrom. The submission proceeded that Parliament, only having been informed by the Speaker on the morning of 24 September, and the issue of appointment of a Prime Minister only arising before Parliament at that time, Parliament ought strictly to have adjourned the appointment process to the next sitting day after 24 September 1993, whenever that next sitting day was to have been. On the facts, because the next several days were the weekend, being Saturday the 25th and Sunday the 26th, and Monday the 27th being ordinarily a rest day, if Parliament were then to have adjourned to Tuesday the 29th, then that ought to have been when the question of the appointment of a Prime Minister was considered. In the event, Parliament adjourned to November 1993. That is when "the next sitting day" would have been.

The respondents have contended, in response, that the ruling of the learned trial judge was correct, that s 142(3) did not require specifically that Parliament needed to have been informed the preceding day before the question of the appointment of a new Prime Minister should be considered. It was submitted that, in the ordinary process of the daily meeting of Parliament under the Standing Orders, Parliament would have been informed of the decision by the Prime Minister to resign, by the appropriate advice from the Head of State to the Speaker for advice to Members of Parliament. Standing Order 103 clearly stipulated that after prayers on each sitting day, the first order of business is a conveyance of any advice from the Head of State. It was further submitted that, consistent with the self-executing nature of the resignation pursuant to s 146(1), a vacancy in the Office of Prime Minister arose at the time of the effective resignation of the Prime Minister, as well as the question of the appointment of a new Prime Minister, as stipulated by s 142(3). That having occurred on 23 September 1993, the preceding day, 24 September 1993 was "the next sitting day" for the purposes of consideration of the question of appointment of a new Prime Minister.

The issue, as clearly crystallised by each party, is when the phrase "the next sitting day" is to be calculated from. The appellant has submitted quite precisely that it must be computed from when notice or advice is given to the Parliament, that is, when the letter of advice from the Head of State to the Speaker is read out to Parliament. That sitting day of Parliament is the day from which "the next sitting day" is computed, so that the question of the appointment of a Prime Minister is to be considered on the "next sitting day" of Parliament therefrom. The respondents also quite clearly contend that s 142(3) does not require Parliament to have been informed for the question of the appointment of a Prime Minister to arise, but that upon the effective resignation and vacancy occurring, the question arises, so that the day following that effective resignation, when Parliament next sits, is the "next sitting day" when the question of the appointment is to be considered.

UNDERLYING CONSTITUTIONAL PRINCIPLES

This is a landmark decision in the short constitutional history of this nation, because of the immediate political effect that the ruling will have on the inter-relationship between the three arms of government: the legislature, the executive, and the judiciary.

It is important, therefore, in my judgement, to restate some of the broad general principles that underlie the constitutional regime this nation has adopted. Some of these can be gleaned or discerned from the Constitutional Planning Committee (CPC) Report, some from the National Goals and Directive Principles, and the body of the Constitution itself, some from broad universal principles common to constitutional democracies, from both developed and developing nations, from those that have written constitutions as well as those that do not have written constitutions.

In some constitutions, it is left to the legislature to interpret the meaning of these principles, but in other types of constitutions, of which ours is one, the judiciary is clothed with the power and charged with the duty of ensuring, upon the application of aggrieved parties, that the legislature and the executive, and, indeed, the judiciary as well, do not transgress the limits set upon their powers.

In Papua New Guinea it has come to be accepted that the judiciary is the guardian of the Constitution. This is amply and expressly provided for in the Constitution. Sections 18 and 19 provide for the original interpretative jurisdiction of the Supreme Court. Sections 22 and 23 provide for the enforcement of constitutional rights and sanctions, respectively, and ss 57 and 58 then complete these powers by providing for enforcement of guaranteed rights and freedoms and compensation, respectively. Section 11 declares that the Constitution is the Supreme Law of Papua New Guinea, and subject to s 10 (construction of written laws), all acts, whether legislative, executive, or judicial, that are inconsistent with it are, to the extent of the inconsistency, invalid and ineffective.

These comprehensive provisions charge the judiciary (the National and Supreme Courts) with the power and duty to ensure that the provisions of the Constitution are observed by all the instrumentalities of government, including the legislative, executive or, for that matter, the judicial.

The Constitution, therefore, is the supreme authority, embodying the power and authority of the People, as asserted in the Preamble to the Constitution, which is then, by virtue of the Constitution, delegated to the different arms and instrumentalities of the government, to be exercised on behalf of the People. Consequently, the arms, institutions, and instrumentalities of the government are responsible and accountable to the People, through the Constitution, in the exercise and stewardship of that power and authority.

This Constitution is, thus, a vibrant and living organism that speaks from time to time. It proclaims in the National Goals and Directive Principles the broad aims which all persons and bodies, corporate and unincorporate, are directed to be guided by in pursuing and achieving the national aims. In National Goal and Directive Principle 3(1) on National sovereignty and self-reliance, the Constitution says:

"We accordingly call for our leaders to be committed to these National Goals and Directive Principles, to ensure that their freedom to make decisions is not restricted by obligations to or relationship with others, and to make all of their decisions in the national interest." (emphasis added).

CONSTITUTIONAL INTERPRETATION

So long as there is law, there must always be the need for interpretation. The task of interpretation is more acute in interpreting a written constitution such as ours. Judicial interpretation and pronouncement are as important as the decisions and policies of the executive and the legislature. When the judiciary makes a decision and pronounces it, it is laying down a standard for the community. The judiciary, therefore, cannot divorce itself from the consideration of public national interest.

One task of judicial interpretation is to uphold the cause of justice. What is the interpretation that will best achieve a sense of fairness and justice? The test or standard must be an objective one. It is not what I believe to be right. It is what I may reasonably believe that ordinary Papua New Guineans, of normal intellect, understanding, and conscience might reasonably look upon as right. It must be interpretation that gives cognisance to, and accords with, the ordinary person's objective perception of the public or national interest. The national and public interests are, in this context, synonymous.

Because constitutional interpretation is the sole preserve of the Supreme Court, the highest judicial authority in the nation, as delegated by the People to it through the Constitution, the Court has to be responsive to the constitutional values. The social philosophy of the Constitution must inspire the judicial decision-making process to adopt a broad goal-oriented and purposive approach directed towards advancing the constitutional objectives when interpreting the Constitution.

CONSTITUTIONAL PLANNING COMMITTEE (CPC) FINAL REPORT

The seemingly straightforward and simple issue raised in this appeal is, unfortunately, not so easy of resolution. Section 24 of the Constitution specifically enables the Court to have recourse to, inter alia, the Final Report of the Constitutional Planning Committee (the CPC Final Report) as an aid also in this task of interpretation or application of provisions of the Constitution.

It is worthy to note that the CPC Final Report in relation to the position of the Head of State, Executive Government, accountability and the appointment of Prime Minister were not altogether incorporated into the final provisions of the Constitution that we now have. In ch 7 of the CPC Final Report, dealing with the Executive, the CPC outlined the arguments for and against a separate Head of State and concluded in para 6 that "We believe that there is no reason why the people of Papua New Guinea should have to adopt this foreign idea". In para 14, the CPC concluded that:

"We have therefore concluded that as there is no clearly demonstrable need for a Head of State, we should not create one merely because it is the usual thing to do. We believe that our proposal for vesting executive power in the National Executive Council, which comprises all Ministers, is most appropriate to our country".

Consequently, the CPC made no recommendation as to the establishment of a Head of State. The CPC Final Report vested the ultimate executive power in the National Executive Council of Ministers, accountable to the people through the representatives of the people in the National Parliament. And so, in that chapter's recommendations for the election of Prime Minister, recommendation 15 is that, "Following his election by the National Parliament, the Prime Minister shall be formally appointed and sworn into office by the Speaker". CPC recommendation 19 puts the provision for the tenure of Office of Prime Minister in the following terms:

"The Speaker shall revoke the appointment of the Prime Minister ... if he delivers to the Speaker a signed letter of resignation from that office."

Then, recommendation 21 states:

"Vacancy in office of Prime Minister

(1)      Subject to recommendation 22 below, if a vacancy occurs in the Office of Prime Minister due to:

(a)      .....

(b)      his resignation from that office;

there shall be an election of a new Prime Minister by ordinary resolution of the Parliament as provided for in clause (2) below.

(2)

(a)      if a vacancy under clause (1) occurs during the period of a meeting of the National Parliament, the first item of business at the next sitting of the Parliament after the vacancy occurs shall be the election of a new Prime Minister - provided that the election may be deferred for up to three sitting days at a time if the Parliament so resolves:

(b)      If a vacancy under clause (1) occurs at a time when the National Parliament is not meeting, if the Parliament is not due to meet within 14 days of the vacancy occurring the Speaker shall convene a meeting of the Parliament not earlier than seven days nor later than 14 days after the vacancy occurs, and the first item of business at the first sitting of the Parliament at that meeting shall be the election of a new Prime Minister, provided that the election may be deferred for up to three sitting days at a time if the Parliament so resolves."

Recommendation 22 says:

"If at any time the Prime Minister and the other Ministers resign together under recommendation 19(b) above and 27(b) below respectively, their resignations shall be effective only from the time of the appointment of a new Prime Minister in accordance with recommendation 21(2) above, and the Speaker shall not revoke their respective appointments until then."

Whilst the CPC recommended that no office of Head of State be created and that the ultimate executive power vest in the National Executive, accountable through Parliament, and recommended that the ceremonial executive functions be vested in the Speaker, in relation to the appointment and resignation of the Prime Minister the Constitution provided for a Head of State to assume those appointment and resignation functions under ss 142(2) and 146(1).

However, notwithstanding that departure from the CPC Report in relation to the role and the functions of the Head of State, it was submitted forcefully for the appellant that, consistent with the spirit of the CPC Final Report and its recommendation as to the corporate accountability of the Prime Minister and Ministers of Cabinet to the people through their representatives in Parliament, although resignation is effective pursuant to s 146(1), nevertheless, the question of the appointment arises for consideration when Parliament is specifically informed of the resignation. That, it was submitted, is consistent with the spirit of parliamentary democracy and accountability of the Executive Government to Parliament, the authority responsible for the election of the Prime Minister and to whom the Prime Minister and council of Ministers are answerable.

It was also contended on behalf of the appellant that the marked difference in the pertinent expressions in the CPC recommendations 21(2)(a) and (b) to the ultimate provisions in section 142(3) and (4) re-enforces the appellant's contention as to when the question of the appointment of a Prime Minister arises for consideration under both subsections (3) and (4). In recommendation 21(2)(a), the expression used is "the next sitting of the Parliament after the vacancy occurs". In recommendation 21(2)(b), the expression is "the first sitting of the Parliament". In the ultimate provisions in s 142(3) and (4), it is "on the next sitting day". The submission follows that the specific expression "on the next sitting day" in the Constitution imports a reference to a "previous sitting day" on which the question of the appointment first arises before Parliament.

The Supreme Court, shortly after Independence, dealt with a similar issue in the case of Mopio v Speaker of the National Parliament [1977] PNGLR 240. Following the 1977 National General Elections, Parliament convened and the Speaker and Prime Minister were appointed on the first day that Parliament sat. James Mopio, a Member of Parliament, challenged the validity of the appointment of Michael Somare as the Prime Minister, seeking as the principal relief a declaration that that appointment was null and void for non-compliance with s 142(4) of the Constitution, in that that appointment was not "on the next sitting day" following the appointment of the Speaker. The Court, comprising Frost CJ, Prentice DCJ, and Williams J, in a very short judgment concluded that s 142(4) provided merely for the time for the question of the appointment of Prime Minister to be considered, that the order of business was a matter which concerned the conduct of the business of the Parliament, and its procedures were non-justiciable under s 134 of the Constitution. The Court held that the declarations that were sought involved the question whether the procedure in s 142(4) had been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duties of the Speaker, and were, thus, non-justiciable as well. The judgment and the reasons are extremely brief and really do not deal with the issue of the substantive constitutional requirement, as might be prescribed under s 142(4). The trial judge was referred to this case, and he distinguished it to proceed to deal with the substantive issue that was before him. In this appeal, this particular issue as to non-justiciability was not a ground of appeal, nor was it raised by the respondents, and so no arguments were heard in relation to the relevance or applicability of this case.

PARLIAMENTARY EXECUTIVE ACCOUNTABILITY

Section 142 falls within Division IV, that deals with the National Executive, and Subdivision B in particular, that provides for the Ministry. An examination of sections 141 to 148 lends some assistance to the interpretation to be ascribed to s 142(3) and (4) as to when the question of the appointment arises and when the "next sitting day" is computed from.

In the end result, taking into account the general spirit of the CPC deliberations and report, the Constitution, and the expressed provisions for the collective responsibility of the Ministry under ss 141 to 148, the interpretation to be ascribed to s 142(3) as to when the question of the appointment of a Prime Minister arises and is then to be considered ought consistently to impute into it the general spirit embodied in the CPC Final Report and the provisions dealing with collective Cabinet or ministerial responsibility. Additionally and more specifically, the general principles and conventions of constitutional interpretation ought also to be borne in mind in construing the various provisions and expressions in a Constitutional Law to ensure that the meaning which is given or ascribed to them is consistent with those general principles and conventions. What, then, are those principles and conventions?

The first of these fundamental principles is the need for the parliamentary executive government, comprising the Prime Minister and Cabinet of Ministers, to be collectively responsible and accountable to the People, through the Parliament, the collective body of representatives of the people. The second is the need for the Office of the Prime Minister and the Cabinet of Ministers to be seen to be so corporately and collectively responsible and accountable through Parliament by ensuring that Parliament is informed of important decisions, such as the resignation of the Prime Minister and the need for the appointment of a new Prime Minister, to ensure that Parliament has adequate notice and is fully informed of the reasons and is given adequate notice and time to deliberate upon the very important issue and question of who the next Prime Minister should be. Thirdly, because it is Parliament which votes upon and decides who the Prime Minister is, and it is in accordance with that decision of the Parliament that the Head of State formally appoints the Prime Minister pursuant to s 142(2), it is imperative that Parliament is principally informed of the resignation first, before "the question of the appointment shall be the first matter for consideration .... on the next sitting day."

In the final analysis, in my judgement, the propositions for the appellant must prevail. It is true, as the respondents submitted in response to this need for adequate notice to Parliament, that Standing Order 103 provides for the routine and order of business of Parliament each day, wherein, after prayers, messages and communications from the Governor-General is the second matter in the order of business, and that would provide adequate opportunity for notice to Members of Parliament of the resignation. The consideration and the appointment of a Prime Minister is, nevertheless, not on "the next sitting day" after the question first arises before Parliament. I believe that, consistent with the general spirit behind the framing of the Constitution, to ensure open democratic parliamentary government and an executive responsible and accountable to Parliament, and to avoid the appearance and accusation of conspiracy, unfairness, and manipulation for personal benefit, the most important question of the appointment of a Prime Minister first arises for consideration when Parliament is informed formally by the Speaker, reading the relevant advice to Members of Parliament on the floor of Parliament, when Parliament is formally sitting. Consistently, then, after Parliament is so informed of the question or the issue of the need to appoint a Prime Minister, the question is deferred until "the next sitting day". This accords with the need to give Members of Parliament the barest minimum time to consider the issue and the candidate or candidates most suitable to be considered for election to this high office. If Parliament considers that time to be inadequate, then it has the ability within its procedures to enable itself more time, by adjourning - Standing Order 6. This, of course, is a matter for the internal procedure of Parliament.

Counsel for the appellant submitted that this provision, construed in this way, is a mandatory requirement and, in default of precise compliance in this manner, renders the decision of Parliament and the subsequent appointment by the Head of State null and void. It was not contended by the respondents that, if this were to be the meaning given to this provision, it might be directory only and not mandatory, such that non-compliance might not be necessarily fatal, and so the submission for the appellant must prevail. Lest there be any uncertainty or contention, I am of the view that it is mandatory, and non-compliance renders the decision null and void. What then is the effect of this conclusion?

The result of this is that the resignation by Paias Wingti as Prime Minister on the evening of 23 September 1993 is valid, but the purported election by the Parliament and the appointment by the Head of State on 24 September 1993 is invalid because of non-compliance with s 142(3) of the Constitution, in that the election and appointment were not "on the next sitting day" after the question of appointment of the Prime Minister first arose in Parliament. Pursuant to sub ss 147(1)(b) and (2)(a), the Prime Minister who resigns continues in office until the appointment of the next Prime Minister. Consequently, Paias Wingti, the first respondent, has remained Prime Minister until Parliament elects the next Prime Minister.

It is also important to be clear about the effect of ss 146 and 147 in the light of the length of time that events have taken until this ruling. Because s 146(1) is self-executing, the resignation is absolute and effective upon receipt of the notice in writing of it by the Head of State. It is, thereafter, not capable of being withdrawn. The resignation is not dependent upon the Head of State accepting it, nor upon Parliament being advised and/or accepting it. The continuation in office under s 147 is necessary to enable continuation in the Office of Prime Minister until Parliament is convened pursuant to s 142(3) or (4), as the case may be, to appoint a new Prime Minister. That may be a matter of a day or days only, or it may be some weeks and possibly longer, as clearly has been the case here. The next course of action is quite simply for Parliament to be convened to consider the question of the appointment of a new Prime Minister. In the circumstances of this case, in my judgment, the advice to the Speaker, which was then informed of Parliament on 24 September 1993, sufficiently gives that notice of the question under s 142(3). Parliament having adjourned that day, the question of the appointment of a Prime Minister shall be the first matter for consideration, after any formal business, on the first day that Parliament sits in its next session. That will be clearly "the next sitting day" after 24 September 1993. The sessions of Parliament subsequent to 24 September 1993 quite clearly are not to be taken into account for the computation of "the next sitting day" because of the position taken by the respondents.

APPOINTMENT OF PRIME MINISTER AFTER A GENERAL ELECTION: SS 142(2) AND (4)

Section 142(2) is a general enabling provision for the appointment of a Prime Minister. The operative provision is s 142(4). Section 142(2) simply states that the Prime Minister shall be appointed, at the first meeting of the Parliament after a general election and otherwise from time to time as the occasion for the appointment of a Prime Minster arises. Section 142(3) and (4) provide the time frame and the order in which the principal formal business of Parliament on that occasion shall be conducted. As I have concluded that the consideration of election and appointment of the Prime Minister under s 142(3) shall be "on the next sitting day" following Parliament being formally advised, to render consistency of this interpretation to the same expression also in s 142(4), and for the avoidance of uncertainty, following a general election s 142(2) and (4) apply. The election of the Governor-General, if necessary, the Speaker, and the Prime Minister shall take place "on the next sitting day" following the calling of Parliament. That is that, after Parliament is convened on the first day when the writs are returned and the new members are sworn into office, notice is given in the normal manner for the appointment of the Speaker and the Prime Minister, which are then adjourned to be considered and voted upon "on the next sitting day". This conclusion has the effect of over-ruling the case of Mopio v Speaker of the National Parliament (supra).

CROSS-APPEAL BY THE FIRST RESPONDENT

The first respondent had also filed cross-appeal in relation to certain findings of the learned trial judge. After the Court had ruled upon his objection to competency of the appellant's original notice of appeal, the cross-appellant has abandoned a number of the original grounds of cross-appeal and has pursued two only. They are:

"4.      That His Honour Mr Justice Sheehan (now respectively referred to as "the trial judge")

(d)      erred in law in not refusing to grant the plaintiff (cross respondent) any of the equitable declaratory relief sought in the originating summons and consequently dismissing such summons on the ground that if, as the plaintiff (cross respondent) contended, the question of appointment of a Prime Minister should have been considered by the National Parliament on the next sitting day of the National Parliament following 24 September 1993, then such question should have been raised and dealt with by the legislative arm of the National Government on the next sitting of the National Parliament in November 1993 (it being an agreed fact that on 24 September 1993 the National Parliament adjourned until November 1993) and should not have been heard or determined by the National Court (being part of the Judicial arm of the National Government) until the Plaintiff (Cross Respondent) had exhausted such remedy which was available to him and in not dismissing the proceedings as instituted by the Plaintiff (Cross Respondent) accordingly.

(h)      Erred in law in not ordering that the Plaintiff (Cross Respondent) should pay the costs of the First Defendant (Cross Appellant) of the National Court proceedings and in not affording Counsel for the First Defendant (Cross Appellant) the opportunity to make any submissions as to the grounds upon which such an order should have been made."

GROUND 4(D)

The thrust of this ground of cross-appeal is that, although the trial judge dismissed the plaintiff/cross-respondent's applications in toto, he should have gone on to find that, even if the plaintiff/cross respondent had shown any merit in the applications, the Court should not intervene and grant the relief sought because the plaintiff/cross respondent had not fully exhausted all alternative remedies available to him.

At the trial, it was submitted that the originating summons should have been dismissed as an abuse of the Court's process because the proceedings should have been instituted by way of application for judicial review. The trial judge in rejecting the submission concluded that, notwithstanding that the application might have been more appropriately brought by way of application for judicial review, application by originating process was not obviously inappropriate. This ruling has subsequently been affirmed by the Supreme Court in the case of NEC v PEA [1993] PNGLR 264.

In accepting that conclusion, the cross-appellant has contended that the applicable legal principles are the same, whichever of the two processes is utilised, because clearly the ground of equitable relief is discretionary, and that discretion is exercised according to well-established principles, which include the exhaustion of other available remedies. The authority of the case of Kekedo v Burns Philp (PNG) Ltd [1988-1989] PNGLR 122 was relied upon for this proposition, that courts will not intervene in cases where an alternative remedy is available, except in the most exceptional circumstances and having regard to the public policy considerations underlying the relevant statute.

The proposition for the cross-appellant proceeds that, notwithstanding that the cross-respondent's applications were dismissed, the trial judge should have gone on to find that, even if the cross-respondent had shown any merit in its applications for the declaratory relief sought, the Court should not intervene to grant them, but that the alternative remedy of further raising the matter in the National Parliament on the first day of the November 1993 sitting ought to have been resorted to, or availed of, before the cross-respondent sought to invoke the jurisdiction of the Court.

I consider, with the greatest respect, that this proposition is misconceived. It is technically true and possible that the aggrieved cross-respondent could have raised the matter in the next session of Parliament in November 1993, but clearly that overlooks the quite practical difficulty that the cross-respondent and the Opposition have in the face of the numbers that voted in favour of the election of the cross-appellant. If the cross-appellant asserted the same position, that the election and appointment on 24 September 1993 was validly made on "the next sitting day" in accordance with s 142(3), then any attempt to introduce the subject at the November session would have been to no avail to the cross-respondent.

The further submission before this Court is that, if this Court were to find merit in the appellant/cross-respondent's appeal, this Court should not intervene and uphold the appeal but should conclude that the appellant/cross-respondent had not exhausted the alternative available remedy of raising the matter in the National Parliament on the first day of its November 1993 session. For similar reasons of practical improbability, I am of the view that this further submission cannot be sustained either.

The end result, therefore, in my judgement, is that this ground of cross-appeal should be dismissed.

GROUND (H)

This ground contends that the trial judge erred in not ordering that the plaintiff/cross-respondent pay the costs of the first defendant/cross-appellant. It is unclear as to precisely what the ruling of the trial judge was, because there are no transcripts in the appeal book. The Court has requested the trial judge to furnish either the transcripts, if any are available or, if not, to furnish to the Court a report of the proceedings in relation to application for costs and what his ruling was, before any meaningful submissions can really be made in relation to the issue of costs. I would, therefore, defer any real consideration of this until either the transcript or a report is available from the trial judge.

KAPI DCJ: On 23 September 1993, Mr Paias Wingti resigned from the office of Prime Minister. On 24 September, he was re-elected as Prime Minister by the National Parliament and subsequently appointed by the Head of State.

The Leader of the Opposition challenged the validity of the appointment in the National Court, and these proceedings were dismissed on 25 November 1993. The Leader of the Opposition (hereinafter referred to as the appellant) appealed against the decision and the Prime Minister (hereinafter referred to as the first respondent) and the Attorney-General (hereinafter referred to as the second respondent) cross-appealed.

The original notice of appeal has been amended, and certain grounds of appeal have been dismissed for incompetence. The remaining grounds of appeal are listed at p 201.

Counsel for the appellant conceded the following facts and propositions:

1.       That Mr Paias Wingti resigned from the office of Prime Minister on 23 September 1993, in accordance with s 146(1) of the Constitution.

2.       That the Head of State advised the Speaker on 23 September that the Prime Minister had resigned from office.

3.       That the Speaker advised the Parliament of the resignation of the Prime Minister at about 10 am on 24 September 1993.

4.       That the question of the election of the new Prime Minister was raised, and Mr Paias Wingti was re-elected as the new Prime Minister on 24 September 1993.

Consequently, counsel for the appellant did not pursue grounds A(iii) and A(iv) of the amended notice of appeal. In view of the concession made in ground A(iv), the point raised in ground A(vi) does not arise for consideration. The only ground that remains to be considered is ground A(vi), which deals with the question of the proper meaning to be given to the words "next sitting day" under s 142(3) of the Constitution. This ground of appeal arises from a point of law which was conceded by counsel for the appellant and accepted by the trial judge. He stated this in Haiveta v Wingti (No 1) at p 187 in this volume:

"Counsel for the plaintiff had already, in his submissions, advised the Court that 'if the occasion for the appointment of Prime Minister arose when the Governor-General received the Prime Minister's resignation, then the plaintiff concedes that the appointment of the new Prime Minister on 24 September was valid.'"

It is clear from this that the trial judge did not get the benefit of full argument on the question of the meaning of the words "next sitting day" at the trial.

This ground of appeal raises matters of interpretation of s 142 of the Constitution.

Under s 142(2), there are essentially two categories of circumstances in which a new Prime Minister may be appointed. They are (a) "after a general election" or (b) "from time to time as the occasion for the appointment of a Prime Minister arises".

The first circumstance deals with appointment of Prime Minister after a general election. A general election may be conducted on occasions set out under s 105 of the Constitution. It is not necessary to discuss these in this case, as they do not arise here.

In this case, we are concerned with the appointment of the Prime Minister "from time to time as the occasion for the appointment arises".

The appointment of a Prime Minister by the Head of State involves a number of steps, which must be taken in accordance with the Constitution and the Standing Orders of the Parliament. The occasion which triggers off, or puts into motion, all the steps necessary for appointment of a new Prime Minister by the Head of State is a vacancy in the office of Prime Minister.

In my view, the words "when a Prime Minister is to be appointed" appearing in ss 142(3) and (4) of the Constitution have the same meaning as "the occasion for the appointment of a Prime Minister arises" in s 142(2). That is to say, the occasion which gives rise to the need to appoint a Prime Minister or when a Prime Minister is to be appointed, is a vacancy in the office of Prime Minister. When a vacancy occurs, it can be said "the occasion for the appointment of a Prime Minister arises" in accordance with s 142(2) or "when a Prime Minister is to be appointed" in accordance with s 142(3) and (4).

There are number of ways in which a vacancy may occur. These are:

1.       dismissal from office in accordance with a vote of no confidence (see s 142(5)(a)),

2.       dismissal from office in accordance with the Leadership Code (see s 142(5)(b)),

3.       dismissal from office on the grounds of unfitness (see s 142(5)(c)),

4.       resignation (see s 146).

Here, we are concerned with a vacancy created by resignation.

On what day is the Prime Minister to be elected in Parliament? This is the major issue to be determined in this case. Where a Prime Minister is to be appointed after a general election, s 142(2) says a Prime Minister should be elected "at the first meeting of the Parliament".

In contrast, s 142(3) and (4) say a Prime Minister should be elected "on the next sitting day".

Counsel for the appellant submitted that there is no dispute that the occasion for the appointment of Prime Minister has arisen. That is to say, the Prime Minister resigned in accordance with s 146 of the Constitution, and this took effect on 23 September 1993. However, he submitted that the question of when the election of the Prime Minister takes place in the Parliament is governed by the words "the question of the appointment shall be the first matter for consideration", appearing in both s 142(3) and (4). He submitted that this can only arise if the notice of the resignation is tabled in Parliament and the members are given the opportunity to consider the question of appointment of a new Prime Minister. He submitted that the "next sitting day" relates to the sitting of the Parliament after the matter is tabled in the Parliament. He submitted that the "next sitting day", in these circumstances, can only mean the next day of sittings of the Parliament after the matter has come before the Parliament for consideration. He, therefore, submitted that in this case, the question of consideration of appointment only arose before the Parliament on 24 September 1993, when the motion for the election of the Prime Minister was tabled. Therefore, he submitted that the next sitting day of the Parliament was following 24 September 1993. As Monday was not a sitting day, the next sitting day would have been 28 September 1993.

On the other hand, counsel for the respondents submitted that the words "next sitting day" qualify the occasion when the office of Prime Minister becomes vacant, and the next sitting day is the "next sitting day" following the vacancy. They submitted that the vacancy occurred on 23 September, and, therefore, the next sitting day after that was 24 September 1993.

Before I consider these submissions, it is important to set out the proper principles and approach to the interpretation of the Constitution. The starting point is the provisions of the Constitution which deal with matters of interpretation. Sch 1.5(2) provides that:

"All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning."

This provision rejects any approach which may be described as a legalistic approach to interpretation of ordinary statutes. The Constitutional Planning Committee was mindful of this. In the CPC Final Report ch 8 para 144, it said:

"The courts tend to be formalistic and legalistic. While it is true that the Constitution is law, it is a special kind of law. All too often the courts approach the Constitution as if it were like ordinary law. They adopt a literal approach and sacrifice the spirit for the letter of the Constitution. By failing to recognise the dynamic character of a Constitution, the courts have often introduced unnecessary rigidities."

Courts in jurisdictions which have adopted similar constitutions as ours have adopted a similar approach to interpretation. Lord Wilberforce, speaking for the Judicial Committee of the Privy Council, stated the same approach in interpreting the constitution of Bermuda in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319. At 328, he said that the Constitution and its antecedents "...call for a generous interpretation avoiding what has been called 'the austerity of tabulated legalism,' suitable to give to individuals the full measure of the fundamental rights and freedoms referred to."

At 329, he said: "...it would be to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law."

See also Ong Ah Chuan v Public Prosecutor [1981] AC 648; Attorney-General of the Gambia v Jobe [1984] 1 AC 689; Societe United Docks v Government of Mauritius [1985] AC 585.

These authorities have been cited with approval in State v NTN Pty Ltd [1992] PNGLR 1.

Section 158(2) of the Constitution requires that: "In interpreting the law the courts shall give paramount consideration to the dispensation of justice."

In discussing the combined effect of ss 24, 158(2) and Sch 1.5 of the Constitution, Kearney J (as he then was) said in The State v Independent Tribunal; Ex Parte Sasakila [1976] PNGLR 491 at 506:

"In my opinion these provisions amount to a direction to the Court that in carrying out its functions under the Constitution  s 18(1) the words actually used in the Act do not have to be strictly adhered to but are to be construed with the assistance of the materials referred to in the Constitution s 24, so as best to attain what Parliament intended. When Constitution  ss 109(4) and 158(2) are themselves interpreted with the aid of s 24, this view is fortified: there are several references in Chapter 8 of the Report of the Constitutional Planning Committee which point against the Court taking a 'narrowly legalistic' or 'literal' approach, and thus sacrificing the 'spirit for the letter of the Constitution'. The 'dynamic character' of the Constitution is emphasized; in interpreting the laws, the judges are urged to use 'judicial ingenuity' in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or 'plain meaning' test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not of legislation, and one in which the best guide remains the provisions of the Act itself."

Sections 25(3) and 63(3) of the Constitution direct the courts to interpret and apply the law in such a way to give effect to the National Goals and Directive Principles and to encourage compliance with the Basic Social Obligations, without failing to give effect to the intention of the Parliament or the Constitution. These goals, principles, and obligations are subject to the intention of the Parliament or the provisions of the Constitution. I adopt what I said on this issue in Supreme Court Reference No 2 of 1992 [1992] PNGLR 336 at 360.

I bear all these principles in mind in interpreting the provisions of s 142 of the Constitution.

Counsel for the respondents relied very heavily on the CPC Final Report as supporting the argument that the "next sitting day" means "next sitting day after the vacancy occurred". The relevant recommendations are ch 7 recommendations 14 and 21. Recommendation 14 says:

"Election of Prime Minister

14.     The Prime Minister shall be elected by ordinary resolution of the National Parliament from among members of the Parliament:

(a)      as the next item of business after the election, appointment and swearing of the Speaker in the first meeting of the Parliament following a general election, provided that the Parliament may be adjourned and the election deferred for up to three sitting days at a time if the Parliament so resolves; or

(b)      in the case of a vacancy, as is provided in recommendation 21 below.

Recommendation 21 is listed at p 208.

The CPC Final Report recommended that the Prime Minister should be elected in three separate circumstances:

1.       after general election - "in the first meeting of the Parliament",

2.       if a vacancy occurs during the meeting of the Parliament - "at the next sitting of the Parliament after the vacancy occurs", or

3.       if vacancy occurs at a time Parliament is not meeting, the Speaker should call a meeting and an election should take place - "at the first sitting of the Parliament".

Several points arise for consideration. First, the recommendations indicate the order of business in the Parliament. After a general election (recommendation 14), the first item of business is appointment of and swearing of the Speaker. This is followed by election of the Prime Minister. Where there is a vacancy in the Office of the Prime Minister (recommendation 21), the first item of business is the election of the Prime Minister. In this recommendation, there is no reference to the election of Speaker. It deals only with vacancy in the Office of Prime Minister. The provision assumes that the Speaker is still in Office.

The order of business recommended by the CPC is clearly reflected in s 142 of the Constitution. Section 142(2) does not deal with order of business. It deals with the session at which the election should take place. Section 142(3) and (4) indicate the order of business if there is a vacancy in the Office of Governor-General or Speaker and the Prime Minister at the same time. It can be clearly inferred from this that after a general election, when the Speaker and the Prime Minister are to be elected, the order of business would be the same.

Secondly, recommendation 14 makes reference to election of the Prime Minister in the "first meeting of the Parliament". Counsel for the respondents submitted that this effectively mean the "first sitting day" of the Parliament. They further submitted that the words "next sitting day" in s 142(3) and (4) are to be construed with the same meaning the CPC intended, and that is that the "next sitting day" is the first day of sitting of the Parliament after a vacancy occurs.

With respect, I do not agree. The reference to the "meeting of the Parliament" in recommendation 14 does not necessarily mean the first day of sittings of the Parliament. The word "meeting" here does not relate to any particular sitting day. It simply refers to the "session" or the period during which the Parliament meets. The reference to the "first meeting of Parliament" simply means the "first session of the Parliament". This does not indicate the particular day on which election of Prime Minister should take place.

Section 142(2) adopted the wording of recommendation 14 in that it says, "The Prime Minister shall be appointed, at the first meeting after a general election ...". As I have pointed out, this simply is a reference to the first session of Parliament after a general election. When sub ss 142(2), (3), and (4) are read together, it becomes apparent that the Constitution used the words "meeting" and "session" interchangeably.

I have, therefore, concluded that s 142(2) of the Constitution does not deal with the issue of order of business in the Parliament, nor does it deal with the particular sitting day on which the Parliament should elect the Prime Minister.

In relation to recommendation 21, whatever was intended by the CPC, it is not necessary for me to discuss. It is clear that the Constituent Assembly did not adopt the recommendation. What the Constituent Assembly adopted is contained in s 142 in its present form. In relation to when the election should take place, subs (3) and subs (4) use the words "next sitting day." That is a reference to a particular sitting day of the Parliament. It can be inferred from reading the whole of s 142 that "next sitting day" would also apply to election of Prime Minister after a general election under s 142(2).

The interpretation advocated by the respondents is open to abuse. A Prime Minister may resign without the knowledge of the Opposition members and the election may be held without giving them any meaningful opportunity to contest.

In the present case, the Prime Minister used resignation under s 146(1) of the Constitution for a purpose which may be questionable. In his letter of resignation to the Speaker, he wrote:

"Accordingly, I have advised His Excellency, the Governor-General of my resignation as Prime Minister to produce an opportunity to the Parliament to express its confidence in my government by reappointing me as Prime Minister."

Resignation as Prime Minister has nothing to do with a question of confidence in the government. One would have thought that a resignation by a Prime Minister would have meant that he has lost support in the Parliament. The question of confidence in a government is regulated by s 105 of the Constitution. The question is put to the Parliament. If the government is defeated on the question, then the result is that there is a general election. The point is that the interpretation contended by counsel for the respondents paves the way for this kind of abuse to take place.

The third matter which arises for consideration out of the recommendations of the CPC is that the proviso to enable Parliament to adjourn election of Prime Minister for three sitting days at a time was not adopted by s 142 of the Constitution. In my view, when the Constitution left out the proviso dealing with adjournment of the Parliament and by adopting the words "next sitting day", it adopted a compromise situation. And that is that the Parliament should not elect a Prime Minister on the first day of sittings of the Parliament, but the election should take place on the "next sitting day". This gives everyone one day to prepare for the election of the Prime Minister. This is not only fair and just but it gives everyone an equal opportunity to participate. Whether or not the Parliament may adjourn the election of Prime Minister is an issue which has not arisen in this case and is a matter which is the subject of practice and procedure of Parliament. I do not wish to express any view on the matter.

With respect, the interpretation advocated by counsel for the respondents would violate the spirit of the Constitution. Section 50(1) of the Constitution stipulates that every citizen has the right to elect or be elected to a public office and "shall be given a reasonable opportunity" to be so elected. It is within the spirit of this provision that all members of the Parliament should be given the opportunity to elect or to be elected as Prime Minister.

Furthermore, to interpret the Constitution in the manner suggested by counsel for the respondents ignores the "dispensation of justice" in accordance with s 158(2) of Constitution. There can be no justice where all parties are not given an equal opportunity in electing the Prime Minister.

The contention put forward by counsel for the appellant would prevent injustice that may be caused by any abuse. Such an interpretation gives both sides of the Parliament equal opportunity to contest the position of Prime Minister.

There is further support for coming to this conclusion. I find that this interpretation gives effect to the National Goals and Directive Principles in accordance with s 25(3) of the Constitution. In particular, I refer to National Goal and Directive Principle 2 - Equality and Participation. Inherent in this principle is the idea of equal opportunity and participation.

Basic Social Obligation (a) requires all persons to respect, and act in the spirit of, the Constitution. I am compelled to accept the submission made by counsel for the appellant, for it is consistent with the spirit of the Constitution, which promotes the ideals of free, fair, and democratic system of government. These are ideals which are universally accepted in the international community. These ideals are enshrined in the Universal Declaration of Human Rights, International Covenant on Civil and Political Rights, and European Convention for the Protection of Human Rights and Fundamental Freedom, to mention only a few. These are documents which have influenced our Constitution and continue to guide the manner in which the provisions of the Constitution may be interpreted (see s 39(3) of the Constitution). Papua New Guinea has proudly taken its place in the international community and must, therefore, comply with international standards.

I do not find anything in s 142 or in any other provision of the Constitution which would be inconsistent with giving effect to these goals, principles, or obligations referred to above.

In relation to the question of the applicability of s 11(1) of Interpretation Act Ch 2 to the interpretation of "next sitting day" in s 142(3) of the Constitution, I have read the draft judgement of Jalina J and I agree that s 11(1) of Interpretation Act is not applicable.

In summary I have interpreted s 142(2), (3) and (4) in the following manner:

1.       Election of Prime Minister must take place at the first or next session of Parliament after a general election or after a vacancy occurs. This is simply a reference to the period when the Parliament sits.

2.       Where there is a need to elect a Governor-General or Speaker and Prime Minister at the same time, the order of business in the house is as set out in s 142(3) and (4). The order of business is the same, whether the election is taken after a general election or after a vacancy occurs.

3.       Where there is a need to elect all three office holders in any event, the election shall take place on the second day of sittings. That is to say, notice of election should be given on the first day of sitting of Parliament and the election should take place on the next sitting day.

For all the reasons set out above, I have reached the conclusion that the trial judge erred in law when he readily accepted the concession made by all parties that the next sitting day in the circumstances of this case was 24 September 1994.

The proper position would then be, the notice of resignation of the Prime Minister was tabled on 24 September 1993, the next sitting day would have been the following Tuesday, 28 September 1993.

The practical result of this reasoning is that election of Prime Minister on 24 September 1993 was invalid and of no effect. The position is that Mr Paias Wingti holds office as Acting Prime Minister until the election of Prime Minister is held on the next sitting day. (See s 147(2) of the Constitution). The next sitting day in the circumstances of this case is on 30 August 1994.

I now consider the cross-appeal by the first and second respondents. The third respondent has not cross-appealed. The grounds of cross-appeal are identical, and I will deal with them together. They have abandoned all grounds of appeal except for two - 4(d) and 4(h) - described beginning on 212.

First, I will deal with the first ground. I find this ground to be strange and inconsistent with the main argument put by first and second cross-appellants in relation to the question of what is the "next sitting day" under s 142(3) of the Constitution. It was submitted that the National Court should have refused to deal with the application and allow members of the Parliament to elect a new Prime Minister on the next sitting day of the Parliament. The next sitting day, according to counsel for the cross-appellants, was 9 November 1993. That was the day the Parliament was adjourned to. This argument was put on the basis that the remedy provided under s 142(3) has not been exhausted before coming to court in accordance with the principles set out in Kekedo v Burns Philip (PNG) Pty Ltd [1988-89] PNGLR 122. This submission was based on the assumption that the next sitting day means the day after 24 September 1993. In effect, this concedes the argument put forward by the cross-respondent on the question of the meaning of "next sitting day" under s 142(3) of the Constitution. If this argument is correct, then this Court should allow the cross-appeal and the matter of election of the Prime Minister should be sent back to the Parliament for election. The next day of sittings of the Parliament is 30 August 1994. Of course, when I suggested this to counsel for the cross-appellants, they submitted that this is not the desired result of this ground of cross-appeal. In my view, this ground of cross-appeal is misconceived and, therefore, must be dismissed.

As to the question of costs, I agree with the Chief Justice that the matter should be deferred until a report is received from the trial judge.

LOS J: I have had the advantage of reading the draft judgments of the Chief Justice and the Deputy Chief Justice and I have compared them with my own draft judgment. As I agree with them on all the vital aspects of their judgments, and the conclusions they have reached, it is not necessary to publish my own judgement.

SALIKA J: The only ground that needs to be addressed in the appeal is ground A(vi) of the amended notice of appeal.

That ground reads: "That the learned trial judge erred in finding as follows: (vi) that s 142(3) provides that the Prime Minister shall be elected on the 'next sitting day' after a vacation".

This ground arises from the learned trial judge's judgment at p 187 of this volume.

"I find, therefore, that the plaintiff has failed to show any evidence of substance sufficient to cause this Court to conclude that the Prime Minister resigned on 24 September 1993 rather than 23 September."

The learned trial judge did not make a direct finding that the Prime Minister shall be elected on the "next sitting day" after a vacancy. However, the effect of his findings, as quoted above, is that the Prime Minister resigned on 23 September 1993 and, therefore, the next Prime Minister is to be appointed on the next sitting day, the next sitting day being 24 September, 1993.

Section 142(3) is in these terms:

"(3)     if the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day."

The trial judge found that the Prime Minister resigned on the evening of 23 September 1993 and that a vacancy arose for the appointment of a Prime Minister. I have no quarrel with that finding.

The trial judge then effectively went on to say that the next sitting day being 24 September, that was the date for the appointment of the Prime Minister because it was the "next sitting day" after the vacancy occurred pursuant to s 142(3) of the Constitution.

If that is to be the correct interpretation of s 142(3), the government and the Prime Minister of the day will use that provision to avoid a vote of no confidence (a legitimate constitutional process) by simply resigning and relying on his numerical strength to be re-elected the next day. That scheme runs against the grain and the spirit of the Constitution. The legitimate constitutional and democratic process of a vote of no confidence will be lost.

The reason the Prime Minister resigned was for Parliament to express a vote of confidence in him. His letter to the Speaker reads:

"My Dear Speaker,

For many years, the no confidence motion provision in the Constitution has been used to destabilise the Government and the people of Papua New Guinea. It is my intention to now utilise the provision of the Constitution to remove the imminent threat of further votes of no confidence by having the Parliament express a vote of confidence in my position as Prime Minister.

Yours sincerely,

signed

PAIAS WINGTI, MP, PRIME MINISTER"

Mr Wingti, in trying to get Parliament to express a vote of confidence in himself, resigned on 23 September 1993 and was re-elected the very next day. No time and opportunity was given to the Opposition to discuss and nominate their candidate. It was a complete surprise to them.

The respondents argue that the resignation and all the events, including the re-election of Paias Wingti, were perfectly legitimate and done within the law. They argue that the trial judge's findings of fact and law are correct and should not be altered.

The other interpretation of s 142(3), argued by the appellant, which was open to the learned trial judge, was that Parliament, being the appointing authority of the Prime Minister, must be the body where the question of a resignation and appointment must be raised to determine the next sitting day. It was argued that after Parliament became aware of the occasion for the appointment of the Prime Minister, the next sitting day should be the day the business of appointing the Prime Minister should take place. It was further argued by the appellant that, while s 142(3) does not specifically provide that Parliament must be informed of the vacancy to determine the next sitting day, it was the Parliament that elected the Prime Minister, and it ought to be told or informed in order to ascertain the next sitting day. He argues that it is not only logical and good sense, but it is just, fair, and democratic that the electing body must be informed of the resignation.

The appellant argues that if s 142(3) is to be interpreted in that manner, no party, government or Opposition, will be greatly disadvantaged.

The appellant argues strongly that the Prime Minister is appointed by the Head of State in accordance with a decision of Parliament (s 142(2) of Constitution) and, by virtue of s 146 of the Constitution, resigns to the Head of State, being the appointing authority. The appellant argues that it follows then that the Head of State must inform Parliament through the Speaker of the resignation of the Prime Minister and that the day Parliament is informed by the Head of State of the resignation is not the day for the appointment of the Prime Minister. He argues that the next day of sitting after Parliament has been informed ought to be the day for the appointment of the Prime Minister.

That interpretation, in my view, finds favour with s 142(4) of the Constitution. The procedure under that provision is that when Parliament is not sitting when a Prime Minister is to be appointed, the Speaker is to call a meeting of Parliament immediately. The appointment of the Prime Minister is not on the first day, it takes place on the next sitting day. That procedure is necessary because on the first sitting day Parliament is informed, and then on the next sitting day the Prime Minister is appointed. The next sitting day is suitable because, on the first sitting day after being informed of the vacancy of the position of Prime Minister, all the other members of Parliament then start the lobbying process and determine who would be possible candidates for the Prime Minister. This procedure makes good sense and is not unfair and unjust on any party.

The Court must, in its endeavours in interpreting provisions of the Constitution, give effect to the intention of the Parliament and the Constitution itself. To do that, we need to look at the debates and proceedings in the pre-Independence Constituent Assembly and the Constitutional Planning Committee (CPC) reports.

The CPC Final Report recommendations in respect of a vacancy in the office of the Prime Minister are at ch 7 recommendation 21 (supra at p 208).

The Constituent Assembly did not adopt the full recommendation of the CPC. The final result of that is now s 142 of the Constitution.

It is clear then that what may have been intended by the CPC did not find favour with the Constituent Assembly. The Constituent Assembly, instead, amended the recommendations, thus changing the original intention and purpose of the CPC. What is now s 142(3) and (4) is what the Constituent Assembly intended. It is, thus, clear that what the CPC intended is not adopted under s 142(3) and s 142(4) in regard to when the Prime Minister is to be appointed.

My view is that the Constitutional Planning Committee intended that Parliament should elect the Prime Minister when a vacancy arose during a meeting or session of Parliament at the next meeting of Parliament, and not during the same meeting or session, and that at that next meeting or session it would be the first item of business. While I acknowledge the different expressions used ("a meeting of the National Parliament") and "at the next sitting of Parliament" in recommendation 21(2)(a), I am of the view that those two expressions really mean the same thing and may be used interchangeably. I also note that s 142(3) of the Constitution does not use the CPC expressions. It uses the words "session" and "next sitting day" to avoid, in my view, any confusion between the words used by the CPC in recommendation 21(2)(a). I also bear in mind Sch 1.5(2) of the Constitution which provides that:

"All provisions of, and all words, expressions and propositions, in a Constitutional Law shall be given their fair and liberal meaning".

The CPC Final Report ch 8 para 144 also says:

"The courts tend to be formalistic and legalistic. While it is true that the Constitution is law, it is a special kind of law. All too often the courts approach the Constitution as if it were like ordinary law. They adopt a literal approach and sacrifice the spirit for the letter of the Constitution. By failing to recognise the dynamic character of a Constitution, the courts have often introduced unnecessary rigidities."

To give effect to Sch 1.5(2) of the Constitution and the CPC Final Report, I am of the view that the Court must not be formalistic and legalistic and adopt a literal approach but must adopt the approach that will give effect to the spirit and aspirations of the Constitution. The spirit of the Constitution being that every citizen be given a reasonable opportunity to elect or to be elected to a public office (see s 50 of Constitution) and the aspirations contained in the National Goals and Directive Principles. I am, thus, obligated to give s 142(3) of the Constitution an interpretation and construction that must give effect to the spirit of the Constitution and the aspirations contained therein.

Furthermore, ss 25(3) and 62(3) of the Constitution give direction to the courts that, in interpreting and applying the law, effect must be given to the National Goals and Directive Principles. The Constitution did not adopt the recommendation of the Constitutional Planning Committee. It changed some vital words to effectively give it a new meaning. The new meaning in the Constitution s 142(3) is that when a vacancy occurs in the Office of Prime Minister during a meeting or session, the question of appointment of a new Prime Minister will be the first matter for consideration on the next sitting day during the same meeting or session. The requirement for the question of the appointment to arise must necessarily arise when Parliament is first informed that a vacancy exists. I am of the view that the question of appointment cannot arise anywhere else but in Parliament, because it is the electing body and, as such, must be informed. And so, when Parliament is informed of a vacancy on day one of the sitting, that question is carried over to the next sitting day for Parliament to elect a new Prime Minister.

If my interpretation and construction of recommendation 21(2)(a) is correct, and I say it is open, then it would in my view be consistent with recommendation 21(2)(b) and also recommendation 22 of the CPC Final Report. Indeed, in my view the CPC never intended a rush. I am further of the view that the committee was well aware of political process on the occasion of a vacancy of the Office of Prime Minister and catered for such process in its recommendations. The committee realised that a vacancy for Prime Minister would arise at the time of resignation, but it specifically said the resignation would not be effective until a new Prime Minister was appointed under recommendation 21(2). In the meantime, he would still act as the Prime Minister.

It is, therefore, my view that all along, the founding fathers of our nation did not intend a sudden and discreet election of a Prime Minister. They intended an open, democratic parliamentary process in the election of the Prime Minister by allowing for plenty of time.

It is my view that the proper construction of s 142(3) is that when a Prime Minister resigns, Parliament is to be informed and stands adjourned to the next sitting day. This is because the question of appointment of a Prime Minister arises in Parliament after the notice of resignation of the Prime Minister is tabled in it. Furthermore, it gives effect to the aspirations of the Constitutional Planning Committee and to the National Goals and Directive Principles. On the next sitting day, the new Prime Minister is appointed. This is consistent with the original intention of the CPC.

Apart from the matters I have said on my own behalf, I am in agreement with the other reasonings and, ultimately, the conclusions of the Chief Justice and the Deputy Chief Justice. I have also read the draft judgment of Jalina J and agree with his views.

JALINA J: I have had the advantage of reading the judgments of the Chief Justice, the Deputy Chief Justice, and Salika J, respectively, in draft and endorse their views, as what they have said reflect my own.

There is, however, one aspect of this case which was strongly argued by the appellant and the first and second respondents which does not appear to have been settled in this Court and, as such, I consider that I should say something about it on my own behalf so as to provide some guidelines for the future. It relates to the application of s 11(1) of the Interpretation Act Ch 2 in the interpretation of "next sitting day" in s 142(3) of the Constitution.

Section 142(3) provides:

"If the Parliament is in session when a Prime Minister is to be appointed, the question of the appointment shall be the first matter for consideration, after any formal business and any nomination of a Governor-General or appointment of a Speaker, on the next sitting day."

Section 11(1) of the Interpretation Act provides:

"In computing time for purposes of a statutory provision, a period of time from:

(a)      a certain day; or

(b)      the happening of an event; or

(c)      the doing of an act or thing,

shall be deemed to be exclusive of the certain day or of the day on which the event happens or the act or thing is done."

Mr Narokobi, counsel for the appellant, has submitted that since the resignation was effective on the night of 23 September 1993, which, by virtue of s 11(1) of the Interpretation Act, was excluded, the "next sitting day" for purposes of election of a new Prime Minister under s 142(3) of the Constitution should be computed from 24 September 1994, which was when members of Parliament, who were the only ones empowered by the Constitution to elect a new Prime Minister, were informed of a vacancy in that office. He relied on the decision of Andrew J in the Morobe Provincial Government case of Joshua v Meya [1988-89] PNGLR 188. His Honour held that the requirement under s 41 of the Morobe Constitution for two weeks notice of a no confidence motion was subject to s 8 of the Interpretation Act (Morobe Province), which is in similar terms to s 11(1), so that the day on which the no confidence motion was to be heard was excluded.

Mr Reeve, for the respondents, relied on ss 9 to 11 of the Constitution and the Interpretation Act and made submissions based on common sense that the Constitution, being a superior law, cannot be subject to an ordinary Act of Parliament for purposes of interpreting its provisions.

Sections 8 to 11 of the Constitution provide:

"8.      Principles of interpretation

For the purpose of the interpretation of this Constitution and the Organic Laws, the provisions of Schedule 1 (Rules for Shortening and Interpretation of the Constitutional Laws) applies and, subject to that Schedule, the underlying law applies.

9.       The Laws

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

10.     Construction of written laws

All written laws (other than this Constitution) shall be read and construed subject to:

(a)      in any case - this Constitution; and

(b)      in the case of Acts of the Parliament - any relevant Organic Laws; and

(c)      in the case of adopted laws or subordinate legislative enactments - the Organic laws and the laws by or under which they were enacted or made, and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

11.     Constitution, etc., as Supreme Law

(1)      This Constitution and the Organic laws are the Supreme Law of Papua New Guinea, and, subject to 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.

(2)      The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject matters permit."

The Interpretation Act, on the other hand, says in the preamble, "Being an Act for the interpretation of Act and instruments made under Acts...".

Section 2 of that Act provides:

"2.      Application

(1)      Except where in this Act the context indicates otherwise, or some other meaning is clearly intended, this Act applies to every statutory provision (including this Act) whenever made or adopted.

(2)      The rules contained in this Act apply in accordance with Subsection (1) unless the context of any particular statutory provision indicates otherwise, or some other meaning is clearly indicated by a particular statutory provision.

(3)      This Act binds the State."

"Act" is defined in s 3(1) to mean "an Act of the Parliament". "Act of the Parliament" is also defined in s 3(1) to mean "a law (other than a Constitutional Law) made by the Parliament". "Statutory provision" is defined in s 1(1) to mean in whole or part:

"(a)     an Act; or

(b)      an adopted foreign law; or

(c)      an instrument (whether of a legislative nature or not) made under an Act or an adopted foreign law; or

(d)      an instrument (whether of a legislative nature or not) having effect by virtue of an instrument referred to in Paragraph (c)."

Sections 9, 10, and 11 of the Constitution clearly show the hierarchy of laws in Papua New Guinea, and ss 9(a), 10(a) and 11(1) clearly demonstrate the supremacy of the Constitution. Section 10(a) expressly provides for all written laws to be read and construed subject to the Constitution "in any case". This, in my view, means that "all written laws" are to be construed subject to the Constitution "in all cases".

From this, therefore, there can be no doubt in my mind that when s 11(1) of the Interpretation Act says, "In computing time for purposes of a statutory provision", it means computing time for purposes of:

(a)      an Act; or

(b)      an adopted foreign law; or

(c)      an instrument (whether of a legislative nature of not) made under an Act... or

(d)      an instrument (whether of a legislative nature or not) having effect by virtue of an instrument referred to in para (c).

It does not and could not have been envisaged by Parliament to be used for computing time for purposes of s 142(3) of the Constitution.

Section 11(1) of the Interpretation Act is, therefore, not applicable to the interpretation of s 142(3) of the Constitution. Consequently, the appellant's submission must, with respect, fail.

Lawyers for appellant: Bernard Narokobi.

Lawyers for first respondent: Warner Shand.

Lawyer for second respondent: Pato Lawyers.

Lawyers for third respondent: Blake Dawson Waldron.