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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
SC REF. NO. 3 OF 1999
SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 10; RE: CALLING OF THE PARLIAMENT
REFERENCE BY THE OMBUDSMAN COMMISSION
WAIGANI: AMET CJ; KAPI DCJ; WOODS, LOS, SHEEHAN, SAKORA AND SEVUA JJ
10, 11 May; 25 June 1999
Facts
This is a special reference made by the Ombudsman Commission pursuant to s 19 of the Constitution seeking ruling on various questions concerning the interpretation of s 124(1) of the Constitution which prescribes, inter alia, the frequency of meetings of the National Parliament. Section 124 of the Constitution states:
"Calling, etc.
(a) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
(b) An Organic Law shall make provision for the calling of meetings of the Parliament.
(c) Subject to Subsection (1) and (2), an Act of the Parliament or the Standing orders of the parliament may make provision in respect of the sittings of the Parliament."
The following factual background caused this special reference. Following the 1997 General Elections the date fixed for the return of writs was July 15 1997. In the 12 months period commencing July 16 1997 and ending on July 15, 1998, Parliament met seven times on a total of 40 days. In the next 12 months period July 16, 1998 and ending on July 15, 1999 Parliament has so far, met four times, on a total of 17 days. On December 2 1998 Parliament adjourned for a period of 7 months and 11 days to July 13, 1999 leaving a mere 3 days to the end of that 12 months period. Accordingly when Parliament resumed on July 13 1999 and assuming it meets on each of the remaining days of 13, 14 and 15 July 1999, it would have only sat in that 12 months period for a total of 20 days only. The question of the possible breach of s 124(1) of the Constitution then arises. Earlier the Supreme Court has decided in SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141 when interpreting the application of s 124(1) of the Constitution, that in essence, there are three limbs to s 124(1): first, that Parliament must be called to meet not more then 7 days after the day fixed for the return of writs for a general election; second, that Parliament must meet three times in each period of 12 months; and three, that Parliament must meet for not less than nine weeks in each such period.
The following questions were referred for the Supreme Court to determine:
"Question 1
Having regard to the dates on which the 6th National Parliament has met, was Section 124(1) of the Constitution breached when the Parliament decided on 2 December 1998 to adjourn to 13 July 1999?
Question 2
If the answer to Question 1 is no, will s 124(1) of the Constitution be breached if the Parliament does not meet sooner than 13 July 1999?
Question 3
If the answer to Question 2 is yes – when will the breach occur?
Question 4
If the answer to Question 1 or 2 is yes:
(a) Does Section 124(1) of the Constitution impose a duty on the Parliament, as a public authority, for the purposes of Section 22 of the Constitution, to mitigate or avoid a breach of Section 124(1).
(b) Having regard to the dates on which the 6th National Parliament has met and its adjournment on 2 December 1998, is there, for the purposes of Section 22 of the Constitution, a lack of supporting, machinery or procedural laws to give effect to that duty?
(c) If there is a lack of supporting, machinery or procedural laws, does s 22 of the Constitution give the National Court jurisdiction to supply the lack?
(d) In particular, does Section 22 of the Constitution give the National Court jurisdiction to make an order requiring the Parliament to meet on or a prescribed day for a prescribed period so as to give effect to the duty imposed by Section 124(1) of the Constitution?
Question 5
If the answer to Question 1 or 2 is yes –
(a) Does section 23(1) of the Constitution give the National Court jurisdiction to make an order imposing a sentence of imprisonment or a fine, if section 124(1) of the Constitution has been breached?
(b) In particular, could such an order under section 23(1) be made against:
(i) The members of the Parliament who voted in support of the motion that the Parliament adjourn to 13 July 1999?
(ii) Any other person or authority?
(c) Does Section 23(2) of the Constitution give the National Court jurisdiction to make an order to prevent a breach of the duty imposed by Section 124(1) of the Constitution.
(d) In particular, could such an order under Section 23(2) be made against:
(i) The Parliament, requiring it to meet on or by a prescribed period?
(ii) The National Executive Council, requiring it to advise the Governor- General, pursuant to the Organic Law on the calling of Meetings of the Parliament, that it is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament and that a particular date should be fixed for a meeting of the Parliament?
(iii) Any other person or authority?"
Held
This question is answered in the positive on the basis that a duration of about 3 weeks (20 days) is inconsistent with the requirement to meet in principle for not less than 9 weeks. This is subject to other relevant considerations, which may be proven in a National Court proceedings.
It is not necessary to answer this question.
The breach has occurred and is continuing. This is subject to other considerations the Court referred to in Question 1. The breach referred to in Question 1 may be remedied if the Parliament actually sits the required period, which may be considered to be consistent with the principle of nine weeks within the 12 months period.
(a) Section 124(1) imposes a duty within the meaning of s 22 of the Constitution as indicated earlier. The breach may be remedied by sitting the required period if there is time within the 12 months period.
(b) No. A person seeking to give effect to this duty may institute proceedings under the National Court Rules (O16). Such proceedings have been taken in this manner in England to enforce duties given under ordinary statutes (see R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118; R v Police Commissioner, ex parte Blackburn [1973] QB 241; R v GLC, ex parte Blackburn [1976] 1 WLR 550). These cases are helpful as to the procedure and the remedy for enforcing the law. Alternatively, orders in the nature of prerogative writs may be applied for under s 155(4) of the Constitution.
(c) If the National Court Rules are not appropriate or are not applicable to a proceeding taken under s 155 (4), the National Court can give such directions as it considers appropriate under s 22 or s 185 of the Constitution.
(d) Section 22 deals with procedural matters. The power to remedy the breach by ordering the Parliament to meet by a prescribed day is to be found in s 23 of the Constitution.
(a) Yes
(b) The extent to which particular orders that may be made should be considered in the context of a particular case, having regard to all relevant considerations. It is not appropriate to prescribe sanctions in the limited circumstances assumed in the present reference.
(c) Yes. The manner in which this jurisdiction may be exercised can be determined in accordance with the facts of each case.
(i) Yes. The exercise of this discretion can be determined in the context of each case. The relevant circumstances would include the manner in which the NEC may exercise its discretion under the Organic Law on the Calling of Meetings of the Parliament.
(ii) Yes, the National Court may direct the National Executive Council to exercise its discretion in accordance with s 2(a)(ii) of the Organic Law on the Calling of Meetings of the Parliament.
(iii) No.
"Where the Constitution imposes a duty on the Parliament, the Parliament has an obligation to carry out that duty. If Parliament breaches that duty, the National Court, pursuant to its judicial and constitutional authority conferred by s 22 and s 23 is entitled to enforce such a breach and impose such sanctions it considers under the Constitution appropriate in the circumstances."
Papua New Guinea cases cited
Haiveta v Wingti (No 3) [1994] PNGLR 197.
Nilkare v Ombudsman Commission [1999] 333.
The State v Kapal [1987] PNGLR 417.
Papua New Guinea Law Society v McEniery [1993] PNGLR 76.
SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141.
The State v NTN Pty Ltd & Another [1992] PNGLR 1.
Other cases cited
Marbury v Madison [1 Cranch 2 L Ed 60 (1803)].
R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118.
R v Police Commissioner, ex parte Blackburn [1973] QB 241.
R v GLC, ex parte Blackburn [1976] 1 WLR 550.
Counsels
D Cannings, for Ombudsman Commission.
C Coady, for the Speaker of the Parliament.
Sir Charles Maino, for the National Executive Council.
25 June 1999
AMET CJ. I propose to give short answers to the questions referred and deliver fuller reasons at a later time.
This is a special reference made pursuant to Constitution s 19 by the Ombudsman Commission, seeking an opinion on the interpretation and application of several provisions of the Constitution: in particular s 124(1).
Section 19 of the Constitution provides for Special References to the Supreme Court and the authorities that are entitled to make differences. Subsection 19(1) provides that:
"Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in subsection (3), give its opinion on any question relation to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law".
The Ombudsman Commission is an authority referred to in Sub-section 19(3).
Section 124 provides for the calling of the Parliament in the following terms:
(1) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principles, for not less than nine weeks in each such period.
(2) An Organic Law shall make provision for the calling of the meetings of the Parliament.
(3) Subject to Subsections (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.
The following circumstances gave rise to the questions that have been referred:
Question 1
Having regard to the dates, on which the 6th National Parliament has met, was s 124(1) of the Constitution breached when the Parliament decided on 2 December 1998 to adjourn to 13 July 1999?
The Supreme Court had determined in SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141 that s 124(1) imposed three separate requirements as to meetings of the Parliament. The first that, Parliament must be called to meet not more than 7 days after the days fixed for the return of writs for a general election. This requirement is not relevant to the issues raised in this reference. The second is that Parliament must meet at least three times in each period of 12 months. Thirdly, Parliament must, in principle, meet for not less than nine weeks in each such period of 12 months.
In the relevant 12 months period from 15 July 1999 Parliament had already met 4 times, and when it meets on the 13 July 1999 it will be the 5th Meeting within the 12 months period. Parliament has thus fulfilled the second requirement of s 124(1), which is that it must meet at least three times in each period of 12 months.
The circumstances that gave rise to the reference raise the issue as to whether the third requirement of s 124(1) will be complied with when Parliament meets from 13-15 July 1999. It will only have sat for a total of 20 days.
The question therefore arises as to the interpretation and application of the third requirement of s 124(1) that:
"The Parliament...shall meet... in principle, for not less than nine weeks in each such period" (of 12 months).
There are, in my opinion, three elements of this third requirement that need to be addressed in determining the questions referred. Firstly, what is meant by the term "meet" and "meeting", secondly, what the term "in principle" means and what the period "nine weeks" means.
I consider that the provisions generally and the second and third elements in particular and the issues raised in this reference have been addressed by the Supreme Court in SCR No 4 of 1990. I am not persuaded that that majority judgment of a senior five – member court is wrong and should be overruled.
In SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141, the reference was made after the Leader of the Opposition and Deputy Leader of the Opposition took out proceedings in the National Court challenging the validity of a decision of the Parliament to adjourn from the 7 November 1990 until 16 July 1991. The reference sought the opinion of the Court on three questions. The first concerned when the "period of 12 months" referred to in s.124 begins and ends. The second and third questions, which are relevant and applicable to the questions raised in this reference, were;
Question 2:
Does s 124 of the Constitution place a duty on:
(a) the Speaker of the Parliament; and
(b) The National Executive Council to ensure that the Parliament meets not less than three times in each period of 12 months and, in principle, for less than nine weeks in each such period.
Question 3:
With reference to, and for the purpose of, both Question 1 and 2:
(a) if a meeting of the Parliament starts before the end of the "12 month period" as interpreted in Question 1, and ends after the commencement of the next "12 month period" are there two meetings, being one in each of the two "12 month period?
(b) If the answer is in the negative, in which "12 month period" does the meeting fall?
What does "meet" and "meeting" mean and what does "sit" and "sitting" of the Parliament mean? Neither of these expressions is defined in the Constitution, but they are defined in the Standing Orders of the Parliament.
"Meeting" is defined as meaning "the period between the date of commencement of the business of the Parliament and the last day when such business is completed".
"Sitting" is defined as meaning the period during which the Parliament is sitting without adjournment, and includes any period during which it is in Committee of the whole Parliament.
I consider that the term and the meaning of the expression "meet" or "meeting " is and should not be confused with the term and meaning of the expression "sitting". Meeting refers to a period whereas sitting refers to specific days. The clearest illustration of the distinction is that a "meeting" may last over a period of three weeks and during which Parliament may only actually "sit" for a total period of 12 days and not the full 21 days of the three weeks as might be assumed by equating a "meeting" with the sitting days. This is because the 12 "sitting days have been the four working days in each of the three weeks during which Parliament "met".
When Parliament is first "called to meet" after the general election, it may "meet" for three weeks, during which period it may only "sit" for ten days spread over the three weeks. In my opinion, Parliament has "met" for three weeks during which it has "sat" 10 days.
In s 124 itself the contradistinction is made between "meeting" and "sitting", when in Sub-sections (1), (2) and (3). In sub-section (3) it provides for the "sittings" of the Parliament, in contradistinction to "meetings".
In my opinion the following additional body of provisions of the Constitution compel the interpretation that "meetings" should not be mistaken with "sitting" days — Section 2(1), 14(2)(a), 15(3)(c), 88(3)(4)(5)(b), 104(2)(d), 114(1), 115(6), 136, 142(2), (3) 187E(6)(a)&(b), 187F(2)(b), 239(2), 241(2)(b), 242(2), (3) and 245(1).
They make it abundantly clear that "meeting cannot be equated with "sitting" days.
In my opinion therefore it is not correct to interpret "nine weeks" to mean 63 days. I consider that a "meeting week" means the week during which Parliament came together to conduct its business, but not the days it actually "sat" in the chambers, which could be one or two or more days within such a week.
I believe that this interpretation is entirely consistent with the second requirement that Parliament shall meet a minimum of three times within a period of 12 months. If Parliament "meets" for a minimum period of three weeks in each of the three meetings within the period of 12 months then it will have compiled with both requirements. Again, in my opinion it is important to bear in mind that in each of the weeks of the meeting Parliament may only need to sit some days only of the working days and not the full 5 working days or even 7 days.
I believe this is the reason that the requirement to meet at least three times in a period of 12 months is mandatory and the requirement to meet for less than nine weeks in each such period of 12 months then it will have complied with both requirements. Again, in my opinion it is important to bear in mind that in each of the weeks of the meeting Parliament may only need to sit some days only of the working days, and not the full 5 working days or even 7 days. I believe this is the reason that the requirement to meet at least three times in a period of 12 months is mandatory and the requirement to meet for not less than nine weeks in each such period of 12 months is in principle only.
What does "in principle" mean? Again, I consider that the interpretation given by the Court in the SC Reference 4 of 1990 is correct, and I would adopt what the Court said in that case.
Schedule 1.6 of the Constitution provides that:
Where a provision of a Constitution Law is expressed to state a proposition "in principle", then-
(a) an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffectual; but
(b) if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be so given effect to.
It was submitted that the "act" is as submitted. The "act" is the resolution of Parliament to adjourn to 13 July 1999. Firstly, I consider that that "act" or the decision per se is not "inconsistent" with the third requirement of s 124(1). Even if that "act" is inconsistent with that requirement, such an "act" is inconsistent with that requirement, Schedule 1.6 states that that "act " or the decisions "is not, by reason of that inconsistency alone, invalid or ineffectual". This suggests to my mind that there may be other reason, other than that inconsistency, which may render the "act" or decision invalid or ineffectual.
The second provision in Sch. 1.6 however means that if for the other reason or reasons the "act" or decision is invalid or ineffectual, and if the "act" is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition (that is the requirement to meet for not less than nine weeks in 12 months), it (the act or the decisions) shall be so given effect to in such a way as not to be inconsistent with the third requirement of s 124(1), for the following further reason.
I consider that the "effect" of the decision is anticipatory only. It will not be effected until the Parliament actually meets on the 13 July 1999. Until then it cannot be said that the infringement has taken place. The further reason is that if the proposition contended for by the Referrer is to be upheld and that nine weeks means 63 days then a breach has not occurred yet until Parliament does meet from 13 to 15 July 1999.
For these foregoing reason I would answer Questions 1 and 2, NO.
The other questions do not rise.
KAPI, DCJ. This is a special reference made by the Ombudsman Commission under s 19 of the Constitution. The reference arises out of a decision by the National Parliament on 2nd December 1998 to adjourn its meeting to the 13th July 1999. Important constitutional questions have arisen as to the duty of the Parliament to perform its duty under s 124 of the Constitution and consideration of the powers of the National and Supreme Courts to enforce such a duty (if any) under s 22 and s 23 of the Constitution. It is convenient to set out these provisions here:
"Section 124 Calling, etc.
(1) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
(2) An Organic Law shall make provision for the calling of meetings of the Parliament.
(3) Subject to Subsection (1) and (2), an Act of the Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.
Section 22 Enforcement of the Constitution
The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws; general principles of justice and generally-accepted doctrine
Section 23 Sanctions
(1) Where any provision of a Constitutional law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may-
(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10,000.00; or
(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a government body) who is in default,
or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.
(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.
(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).
The court has been asked to determine the following questions:
"Question 1
Having regard to the dates on which the 6th National Parliament has met, was Section 124(1) of the Constitution breached when the Parliament decided on 2 December 1998 to adjourn to 13 July 1999?
Question 2
If the answer to Question 1 is no, will s 124(1) of the Constitution be breached if the Parliament does not meet sooner than 13 July 1999?
Question 3
If the answer to Question 2 is yes – when will the breach occur?
Question 4
If the answer to Question 1 or 2 is yes:
(a) Does Section 124(1) of the Constitution impose a duty on the Parliament, as a public authority, for the purposes of Section 22 of the Constitution, to mitigate or avoid a breach of Section 124(1).
(b) Having regard to the dates on which the 6th National Parliament has met and its adjournment on 2 December 1998, is there, for the purposes of Section 22 of the Constitution, a lack of supporting, machinery or procedural laws to give effect to that duty?
(c) If there is a lack of supporting, machinery or procedural laws, does s 22 of the Constitution give the National Court jurisdiction to supply the lack?
(d) In particular, does Section 22 of the Constitution give the National Court jurisdiction to make an order requiring the Parliament to meet on or a prescribed day for a prescribed period so as to give effect to the duty imposed by Section 124(1) of the Constitution?
Question 5
If the answer to Question 1 or 2 is yes –
(a) Does section 23(1) of the Constitution give the National Court jurisdiction to make an order imposing a sentence of imprisonment or a fine, if Section 124(1) of the Constitution has been breached?
(b) In particular, could such an order under Section 23(1) be made against:
(iii) The Members of the Parliament who voted in support of the motion that the Parliament adjourn to 13 July 1999?
(iv) Any other person or authority?
(c) Does Section 23(2) of the Constitution give the National Court jurisdiction to make an order to prevent a breach of the duty imposed by Section 124(1) of the Constitution?
(d) In particular, could such an order under Section 23(2) be made against:
(i) The Parliament, requiring it to meet on or by a prescribed period?
(ii) The National Executive Council, requiring it to advise the Governor- General, pursuant to the Organic Law on the Calling of Meetings of the Parliament, that it is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament and that a particular date should be fixed for a meeting of the Parliament?
(iii) Any other person or authority?"
The Court has been asked to consider these questions with the following circumstances in mind. The date fixed for the return of the writs after the general election was 15th July 1997. In the period of 12 months commencing on the 16th July 1997 and ending 15th July 1998, the national Parliament met seven times, on a total of 40 days. In the period of 12 months commencing on the 16th July 1998 and ending 15th July 1999, the Parliament has, so far, met four times, on a total of 17 days. On the 2nd December 1998, the Parliament fixed 13 July 1999 as the day on which it shall next meet, i.e., Parliament adjourned for 7 months and 11 days. If the Parliament meets on each of 13th, 14th and 15th July 1999, it will, during the period of 12 months, have sat for a total of 20 days.
I will assume these circumstances for the purposes of this reference. It is clear that the constitutional issues involve reference to the time periods stipulated by s 124 of the Constitution. It is therefore, important to get the initial stipulation of time right from the beginning of the life of a Parliament. This question was determined in the SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141.
In that case, the Parliament adjourned its sittings in similar circumstances to the present case. On the last day of the sittings on the 7th November 1990, the Parliament fixed the next sittings on the 16th July 1991, a period of 8 months. Three questions were referred, one of which was the question of when the 12 months period in the life of a Parliament commences on the day after the return of writ.
All counsel in the present case accepted the ruling by the Supreme Court that the 12 months period commences to run on the day after the return of the writ. The first period of twelve months in the present Parliament commenced on 16th July 1997. All time periods will be taken to run from this date.
Section 124 of the Constitution also stipulates the frequency of the meetings of the Parliament. The Court held that the Parliament is required to meet for a minimum of three times in a 12 months period and that this requirement is mandatory.
The present reference raises the question, whether, there is a duty imposed upon the Parliament to sit for a required period of 12 months. This calls for the proper interpretation of the meaning to be given to the time stipulation of the "nine weeks" and what that means in terms of the period of time the Parliament is required to sit. If the Constitution imposes a duty to meet for a required period of time, has the Parliament breached this requirement. If so, can a breach of such duty be enforce by the National Parliament and the Supreme Courts under s 22 and s 23 of the Constitution?
In addressing the question of the duty of Parliament, counsel for the Speaker of the Parliament submits that the question was determined by the majority in the Supreme Court Reference No. 4 of 1990 (supra) wherein the majority held that the period for which a Parliament is required to sit in the 12 months period is the independent prerogative of the Parliament. Counsel further submits that the "nine weeks" requirement refers to the nine weeks within which Parliament may meet and not the actual sittings days. He further submits that we should construe the provisions of Schedule 1.6(b) in a positive way only so that there is no room for any interpretation where it may be held that any period of sitting is inconsistent with the requirement of "nine weeks".
Counsel for the National Executive Council in effect adopts the arguments presented by counsel for the Speaker.
Counsel for the Ombudsman Commission submits that this Court should overturn the decision for the majority in the Supreme Court Reference No, 4 of 1990 (supra) and follow the dissenting opinion I express in that case. He relied on a number of substantive grounds why this Court should not follow the majority opinion.
In the light of full and helpful arguments put in the present case, I have carefully reconsidered the majority opinion and my dissenting opinion with an open mind. As a matter of law, this Court is not bound by its own decision (see Schedule 2.9 (1) of the Constitution) This Court has previously laid down the circumstances under which it may depart from its own decisions. In this regard I adopt what I said in Titi Christian v Rabbie Namaliu & The State (a decision of the Supreme Court OS No.2 of 1995, dated 18 July 1996). In a developing jurisdiction such as ours, it is important to bear in mind two competing considerations. On the one hand, it is desirable to provide certainty in the law that is developed by the highest Court in the land. This consideration would support the approach that as far as possible, previous decisions of the Court should be upheld. On the other hand, many of the principles or provisions of the Constitution are being subjected to the scrutiny of the Court for the first time, it is desirable to examine these decisions are correct and are based on sound legal reasoning. The Court is at the early stages of developing the law. No Court simply follow or overturn a previous decision without examining the decisions carefully. There will come a time when it will be decided that the law is settled and therefore it cannot be further corrected by judicial act. It will then be difficult to overturn a previous decision in those circumstances. In the final analysis, the test is, whether, a previous decision is clearly wrong. The court should act to correct a wrong decision (see Papua New Guinea Law Society v McEniery [1993] PNGLR76; John Nilkare v Ombudsman Commission [1999] PNGLR 333.
Applying these principles, I have been persuaded by the careful and substantive arguments presented by counsel for the Ombudsman Commission that the decision by the majority with respect is wrong. It follows from this that I adhere to my dissenting opinion in the Supreme Court reference No. 4 of 1990 (supra) on pages 157 to 158.
Before turning to the task of construing s 124, I remind myself of the nature of the question with which this Court is asked to deal with. As I said so in the earlier reference, the decision as to the number of days the Parliament sits is by nature a question of politics. That is to say, it is determined by voting in the Parliament. It is no secret that this type of decision is taken on political grounds. That is no reason for this Court to turn a blind eye and come to the view that it should not enter the arena of politics. This is a proper caution that this Court must bear in mind when faced with the issues involving political considerations. I gave this caution in The State v Kapal [1987] PNGLR 417 at 429-426. The Constitution has made this clear in adopting the doctrine of separation of powers under s 99 of the Constitution. The independence of each of the three arms of government is fundamental. This Court must observe and uphold this principle.
However, the Constitution of Papua New Guinea is unique in many respects. It has subjected many political or policy issues to the scrutiny of the Courts. It is the duty of this Court to take up these issues without fear and favour within the strict confines of the powers given by the Constitution. This Court has had a proud tradition of addressing such issues: becoming involved in the policy decisions on television broadcasting (see The State v NTN Pty Ltd & Another [1992] PNGLR 1); resignation and appointment of the Prime Minister (see Haiveta v Wingti (No 3) [1994] PNGLR 197) to mention only but a few.
The words to be construed under s 124 of the Constitution are:
"The Parliament ... shall meet... ‘ in principle, for not less than nine weeks in each... period of 12 months."
The effect to be given to the words "shall meet" was also decided by the Court in Supreme Court Reference No. 4 of 1990 (supra) with reference to the number of times the Parliament is required to meet within 12 months period. The majority held on held page 145:
"The second requirement, that Parliament shall meet not less frequently than three times in each period of 12 months, is also in unequivocally mandatory terms. That simply directs that Parliament shall meet a minimum of three times in each period of 12 months . That is the minimum: it may meet more than three times in each or any of the periods of 12 months, but Parliament cannot meet less than the minimum three times in each 12 months period."
I reach the same conclusion at page 154.
The words "shall meet" are also applicable to the requirement for the Parliament to meet "in principle, for not less than nine weeks in the period of 12 months". It follows that the Parliament is required to meet for the required period in mandatory terms. The question is: what is the time required by the word "in principle, for not less than nine weeks", it would follow from the interpretation given by the Court to the second limb of s 124 (the minimum of three times), that the Parliament shall meet for a minimum period of nine weeks. The inclusion of the words "in principle" qualifies that minimum requirement of the nine weeks. The word "principle" does not refer to the mandatory requirement of the Parliament commanded by the words "shall meet". This conclusion is read together with the terms of Schedule 1.6 of the Constitution:
"Statement of general principle.
Where a provision of a Constitutional Law is expressed to state a proposition ‘in principle", then-
(a) an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffectual; but
(b) if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be given effect to."
The fact that the Parliament may meet in principle for less than nine weeks, of itself does not invalidate the act. In the context in which the reference is made, if the Parliament meets for less than the minimum of nine weeks, that by itself would not result in the breach of the duty of the Parliament to meet. As to what period of time (less than the nine weeks) is acceptable, the Schedule does not indicate. The test for determining this is to be found in Schedule 1.6(b). I adopt what I said in Supreme Court Reference No. 4 of 1990 (supra) in this regard at page 158:
"What this effectively means is that the Parliament must aim to comply with the proposition in principle, and if it cannot achieve the proposition (nine weeks requirement, such less period of sitting must ‘not be inconsistent with the nine weeks proposition ..., I would expect that all members of the Parliament should bear in mind) that whatever period the parliament sits, it should be reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the nine weeks requirement".
This is the test to be applied when considering whether the Parliament has breached the duty imposed by s 124 of the Constitution. In applying this test, the Court is required to consider whether, the act is "not to be inconsistent with the proposition". This test has been expressed in the double negative. This test may be expressed simply in the positive: ‘whether, the act is consistent with the proposition?" Whether, or not, the act may be given effect to depends on the answer to the test I have suggested. With respect, I reject outright the submission by counsel for the Speaker that the Schedule 1.6(b) only allows positive effect to be given to it and not the negative effect. Such a submission would render the provision meaningless.
In applying the test, there are many considerations, which may be taken into account. The period the Parliament in fact sits is the most important consideration. The period that is taken as the principle or the proposition is "not less than nine weeks".
What then is the meaning to be given to the words "nine weeks"? Any reference in the Constitution to year, month, week and day must be taken to refer to the calendar periods unless the Constitution indicates otherwise either expressly or by implication.
The words "nine weeks" have to be interpreted within the context they have been used under s 124 of the Constitution. The third limb of s 124 here requires the Parliament to sit for a period of time to transact its business. It is not dealing with the period in which it may meet. This is to be contrasted with the reference to 12 months period. There the section uses the words"...shall meet...in 12 months." The former refers to the total period for which the Parliament actually sits and transacts its business and the latter refers to the period in which it may meet. The "nine weeks", must be construed in a practical way. The only way to give such meaning is to break down the "nine weeks " in terms of days. Common sense dictates that. From our experience, we work from day to day and those days amount to weeks, months, etc. The difficulty is; should the word "week " be given the meaning 7 days as in a calendar week, or, 5 days as in a working week in the public service, or alternatively, is the total number of days the Parliament actually meets to transact its business?
In my view, the "nine weeks" refer to the total period the Parliament is require to meet. It cannot refer to 7 days in a week because the Parliament does not work on Saturday or Sunday. It cannot refer to 5 working days in a week because Parliament is not required to work for 5 days in a week. Under s 33 of the Standing Orders, the Parliament is required to meet on Monday, Tuesday, Thursday and Friday. The provisions in the Standing Orders with regard to the sittings of the Parliament are made in accordance with see s 124(3) of the Constitution. I do not accept the 7 or 5 days a week meaning because they include days that the Parliament does not sit. I do not consider that the Parliament intended to include days when it does not sit. I do not consider that the Parliament intended to include days when it does not sit to transact its business. The interpretation I have given only refers to the days the Parliament actually sits. That meaning will still apply even when the Standing Orders subsequently change the days on which the Parliament may sit. The conclusion I have reached accords with the intention of the Constitutional Planning Committee in its Report, paragraph 87 at page 6/3 in the particular the following:
"We propose that the minimum requirement be altered to at least three meetings a year with a total duration of at least nine weeks – that is an average of three weeks per meeting. We stress, however, that this is a minimum requirement, set below the present amount of annual meeting time."
(emphasis added)
I have also come to this conclusion having regard to the many duties the Parliament is expected to perform. I have rejected alternative meanings submitted by counsel because in effect those interpretations reduced the duration of nine weeks. Each of the days that make up the nine weeks is a working day. This is a total of 63 working days.
If one reads the third limb in the manner I have interpreted it together with the requirement that the Parliament should sit for a minimum of 3 times, the Parliament should at least aim to sit for 21 days each time in order to fulfil its duty. That is the principle or the proposition state in s 124 of the Constitution.
It follows from the conclusions I have reached that s 124 of the Constitution imposes a duty with the meaning of s 22 and 23 of the Constitution.
The conclusion that the Parliament has a duty to meet in principle for a duration of not less than nine weeks is consistent with the principle of Parliamentary democracy which runs right through the Constitution. The Constitutional Planning Committee in its report made clear in paragraph 1, page 6/1 in particular the following:
"The legislature should not be seen as a rival to the executive arm, but rather as a full and constructive partner. It can then help to ensure the overall effectiveness of government by keeping the executive accountable to the people. This is the approach that underlies our proposals." (Emphasis added).
This principle was recognised in Haiveta v Wingti (No 3) [1994] PNGLR 197 per Amet CJ. The Executive Government is made responsible to the people through the Parliament. The Constitution asserts that the legislative authority resides in the people and this power is entrusted to the Parliament to exercise it in the interest of the people. The Parliament therefore is the ultimate forum where important matters that affect the nation as well as the people are debated and decided. Every Member of the Parliament represents the interest of the common people including the unemployed person living in the squatter settlements in Port Moresby to the ordinary subsistence farmer living in a remote village in the outback. The Parliament is there to serve the interests of the people. To give effect to this principle, s124 requires the Parliament to sit in principle for duration of not less than nine weeks to perform its constitutional functions. To come to a contrary view is to fail to give effect to the intention and the underlying philosophy of the Constitution. If the Parliament loses its focus then it is the duty of this Court to point the Parliament in the right direction. The Court is duty bound to do this within the terms of s124 and the enforcement provisions under s 22 and s 23 of the Constitution.
If the Parliament sits for less than the proposition (that is less than the nine weeks), it does not mean that the Parliament has breached its duty under the Constitution (see Sch 1.6(a)).
In the present case, it is assumed that the Parliament has sat only 17 days and if it sits for another three days, it will have sat for only 20 days within the current 12 months period. The question then arises; is this not inconsistent with the proposition, namely, that the Parliament should sit for a minimum of nine weeks (63 days of sitting) in a 12 months period?
As I indicated before, the number of days the Parliament sits is the most important consideration. On the facts assumed, 20 days out of the 63 days (approximately 3 weeks out of 9 weeks) is one third of the period required in principle. This points strongly to the conclusion that the 20 days of meeting is inconsistent with the proposition set out under s124 of the Constitution.
In the Supreme Court Reference No 4 of 1990 (supra), I expressed the opinion:
"I am of the opinion that the meaning and application of Sch1.6 can be fully understood within the context of an actual case, with facts which would show the number of days it was intended to sit in the 12 months period, the amount of business it completed, and the reasons for sitting for so many days. I do not think, with respect, that this Court can conclusively determine the meaning and application of Sch. 1.6 of the Constitution on a hypothetical question under s 19 of the Constitution."
I consider that these considerations are relevant to the question of whether the number of days actually sat is not inconsistent with the proposition (nine weeks). I also consider that the question of whether the Parliament adjourned to continue to meet as Committee of the Parliament is relevant in that that is a continuation of the work of Parliament. The list of relevant considerations is not exhaustive.
It follows from what I have said so far that appropriate action should be brought in the National Court to establish all relevant facts so that the issues can be fully adjudicated upon.
It also follows from what I have just concluded that the question of enforcement under s 22 and s 23 cannot be dealt with fully. In so far as it may be helpful, I will express some opinions on general issues.
If there was a breach of duty under s 124 of the Constitution, I find that the sanctions set out under s 23 of the Constitution would be applicable. The power to impose these sanctions is primarily given to the National Court. That means the Supreme Court has no original jurisdiction. While s 18(1) gives original and exclusive jurisdiction to the Supreme Court to interpret and apply a provision of the Constitution, it is subject to other provisions of the Constitution. The question of sanctions for breach of a duty is expressly given to the National Court. The only way such a matter may come before this Court is by way of judicial review or appeal under the Supreme Court Act. For this reason, it is not proper to actually spell out the powers of the National Court and the manner in which it may exercise them. It would be more appropriate for the National Court to deal with such a power in a proceeding with all the relevant facts.
Generally speaking, breach of a constitutional duty is viewed very seriously by the Constitution, s 23. The sanctions set out are very severe and the National Court is given very wide powers to give such other orders that it considers appropriate. Let there be no mistake that this provision is applicable to governmental bodies which includes the National Government (see definition of "governmental body" under the Schedule to the Constitution). The National Government is made up of three principal arms; the National Parliament, National Executive and the National Judicial System (see s 99(2) of the Constitution).
If there is any lack of procedural laws for the purposes of imposing the sanctions, the National Court has wide powers to supply such laws (s 22 of the Constitution). I hope that everyone who are charged with such duties will take heed that the National Court has extensive powers to sanction those that breach their constitutional duties. All powers and authorities should be diligent in the performance of their constitutional duties.
In considering the powers that may be exercised by the National Court, I refer to s 23(2), which empowers the National Court to make orders to remedy any breach. Where the Parliament may be found to have breached the duty, the National Court can make orders for the Parliament to remedy the breach by sitting extra days to make up the required duration of meetings. The National Court could make an order to direct the Parliament in accordance with law to sit to make the required period of time to comply with the requirement if there was opportunity to make up the time within the 12 months period. Such an order would be made in accordance with s 2 of the Organic Law on Calling of Meetings of the Parliament. In particular an order may be made to direct the NEC to exercise its powers under s 2(1)(a)(iii) of the Organic Law on Calling of the Meetings of Parliament. In the event that the NEC fails to exercise its discretion in accordance with law, the National Court has wide powers to give an appropriate direction to the Parliament. As to the manner in which the National Court may exercise its discretion cannot be set out here. The full circumstances need to be ascertained in a court proceeding.
I have offered these observations to make the point that the provisions of the Constitution are not just a collection of empty principles but the Constitutional Fathers carefully thought through the process of enforcing those provisions. I express the hope that those who are charged with such constitutional duties will now realise the seriousness of the consequences of failing to perform those duties. This has implications for everyone including those of us charged with constitutional duties in the National Judicial System.
I would answer the questions as follows:
Question 1
I am inclined to answer this question in the positive on the basis that a duration of about 3 weeks (20 days) is inconsistent with the requirement to meet in principle for not less than 9 weeks. This is subject to other relevant considerations, which may be proven in a National Court proceedings.
Question 2
It is not necessary to answer this question as I have answered question 1 in the positive.
Question 3
The breach has occurred and is continuing. This is subject to other considerations I referred to in Question 1. The breach referred to in Question 1 may be remedied if the Parliament actually sits the required period, which may be considered to be consistent with the principle of nine weeks within the 12 months period. Time is fast running out for this purpose in the current 12 months period.
Question 4
(a) Section 124(1) imposes a duty within the meaning of s 22 of the Constitution. As I have indicated before, the breach may be remedied by sitting the required period if there is time within the 12 months period.
(b) No. A person seeking to give effect to this duty may institute proceedings under the National Court Rules (O16). I believe such proceedings have been taken in this manner in England to enforce duties given under ordinary statutes (see R v Commissioner of Police of the Metropolis, ex parte Blackburn [1968] 2 QB 118; R v Police Commissioner, ex parte Blackburn [1973] QB 241; R v GLC, ex parte Blackburn [1976] 1 WLR 550). These cases are helpful as to the procedure and the remedy for enforcing the law. Alternatively, orders in the nature of prerogative writs may be applied for under s 155(4) of the Constitution.
(c) If the National Court Rules are not appropriate or are not applicable to a proceeding taken under s 155 (4), the National Court can give such directions as it considers appropriate under s 22 or s 185 of the Constitution.
(d) Section 22 deals with procedural matters. The power to remedy the breach by ordering the Parliament to meet by a prescribed day is to be found in s 23 of the Constitution.
Question 5
(a): Yes
(b): The extent to which particular orders that may be made should be considered in the context of a particular case, having regard to all relevant considerations. It is not appropriate to prescribe sanctions in the limited circumstances assumed in the present reference. I would decline to answer this question.
(c): Yes. The manner in which this jurisdiction may be exercised can be determined in accordance with the facts of each case.
(i) Yes. The exercise of this discretion can be determined in the context of each case. The relevant circumstances would include the manner in which the NEC may exercise its discretion under the Organic Law on the Calling of Meetings of the Parliament.
(ii) Yes, the National Court may direct the National Executive Council to exercise its discretion in accordance with s 2(a)(ii) of the Organic Law on the Calling of Meetings of the Parliament.
(iii) No.
WOODS J. This reference had been filed by the Ombudsman Commission for this Court to answer questions related to the constitutional requirements for the meetings of the National Parliament. The background to this Reference is that the National Parliament has sat for only 17 days in this its second year of office and there are no plans for it to sit again until 3 days before the end of this second year. Questions are thereby raised that as Parliament has sat and will have only sat for such a short time and then only for a possible maximum of 20 days, does this call into question whether the constitutional requirements have been breached. Then if there has been a breach what are the consequences.
The Questions are:
Having regard to the dates on which the 6th National Parliament has met, was s 124(1) of the Constitution breached when the Parliament decided on 2 December 1998 to adjourn to 13 July 1999.
If the answer to Q 1 is no, will s 124(1) be breached if the Parliament does not meet sooner than 13 July.
If the answer to Q 2 is yes, when will the breach occur.
If the answer to Q 1 or 2 is yes: (a) does s 124(1) of the Constitution impose a duty on the Parliament, as a public authority, for the purposes of s 22 of the Constitution, to mitigate or avoid a breach of s 124(1). (b) Having regard to the dates on which the 6th National Parliament has met and its adjournment on 2 December 1998, is there, for the purposes of s 22 of the Constitution, a lack of supporting machinery or procedural laws to give effect to that duty. (c) If there is a lack of supporting machinery or procedural laws does s 22 of the Constitution give the National Court jurisdiction to supply the lack? (d) In particular does s 22 of the Constitution give the National Court jurisdiction to make an order requiring the Parliament to meet on or by a prescribed day for a prescribed period so as to give effect to the duty imposed by s 124(1) of the Constitution.
If the answer to Q 1 or 2 is yes (a) Does s 23(1) of the Constitution give the National Court jurisdiction to make an order imposing a sentence of imprisonment or a fine, if s 124(1) of the Constitution has been breached. (b) In particular could such an order under s 23(1) be made against the members of the Parliament who voted in support of the motion that the Parliament adjourn to 13 July 1999, any other person or authority. (c) Does s 23(2) of the Constitution give the National Court jurisdiction to make an order to prevent a breach of the duty imposed by s 124(1) of the Constitution. (d) In particular could such an order under s 23(2) be made against, the Parliament requiring it to meet on or by a prescribed day for a prescribed period; The National Executive Council requiring it to advise the Governor-General pursuant to the Organic Law on the Calling of Meetings of the Parliament, that it is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament and that a particular day should be fixed for a meeting of the Parliament; any other person or authority.
There are some agreed facts over the dates that the National Parliament has sat since the Elections in 1997 and for the period since the 16th July 1998, being the first anniversary of the return of the writs for the Parliament, it has sat for a total of 17 days. And when one considers that on the 2nd December the Parliament voted to adjourn to its next meeting on the 13th July this will allow a possible further 3 days to be added to that 17 days for the total number of sitting days since that first anniversary.
This reference is being made by the Ombudsman Commission by virtue of its powers under s 19 of the Constitution, and the reference has been signed by two of the three Ombudsmen. Section 19 provides for any authority referred to in the Section to apply to the Supreme Court for an opinion on any question relating to the interpretation or application of any provision of a constitutional law.
The questions raised by the referee relate firstly to an interpretation of s 124 of the Constitution and then to s 22 and s 23 of the Constitution, which are enforcement and sanction provisions.
"Section 124 – Calling:
(1) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
(2) An Organic Law shall make provision for the calling of meetings of the Parliament."
This provision was considered in SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141 where the Supreme Court held that the provision imposes three separate requirements as to meetings of the Parliament. The first requirement was that Parliament must be called to meet not more than 7 days after the date fixed for the return of he writs for the general election. The requirement is not relevant in this reference. Secondly, the Parliament must meet at least three times in each period of 12 months. The Court in that case held that the first period of 12 months begins on the day after the day fixed for the return of the writs following the general election. The second and subsequent periods of 12 months commence on the day after the first and subsequent periods of 12 months have expired. That judgement is the basis for the calculation for the number of sitting days for this Parliament as referred to in the reference. For the purpose of this reference it appears that the 6th National Parliament has complied with this obligation. The third requirement is the basis of this reference namely that the Parliament must, in principle, meet for not less than 9 weeks in each such period of 12 months.
So what do these words ‘for not less than nine weeks in each such period’ mean?
The Supreme Court in SCR 4 of 1990 was not asked to specifically address itself to the meaning of this nine weeks, the main tenor of the reference in that case was directed to the 3 times in each period of 12 months, and to from when the 12 months is calculated. However in so far as the Court addressed itself to the meaning of s 124 it noted that the words "in principle" clearly qualify the requirement and make it directory only and enables Parliament to determine its own timetable for the legislative program and the business it needs to deal with. The Court suggested that if Parliament effectively completes all its business in less than nine weeks it should not be obliged to continue to sit unnecessarily. The Court noted that whilst it was the intention of the Constitutional Planning Committee that the nine weeks be the minimum length of time Parliament should sit in a period of 12 months, the wording of s 124 does not reflect this and it appears that the founding fathers of the Constitution deliberately left the length of each sitting of Parliament to the discretion of the Parliament itself. The Court stated that it cannot enquire into the reasons why meetings within the 12 month period were of less duration than the nine weeks, and further that the compliance with the stipulation of the nine weeks is the independent prerogative of Parliament. The Court then suggested that under s 124 there is no duty specifically placed on a person, an office or an institution to comply with its requirements. So are these statements by the Supreme Court in the case SCR 4 of 1990 the end of the matter especially when an analysis of the meaning or import of the nine weeks was not a matter referred to the Court at the time so presumably would not have been the main subject of the submissions in that case.
It would seem that the intention of s 124 was not to impose a mandatory number of sitting days for the Parliament in any 12-month period but rather to ensure that Parliament sat a reasonable amount of time at reasonable frequencies. That must be the intention of the words ‘in principle’ in the section. The Constitution is meant to be a working document imposing duties and responsibilities and it would be expected that in line with the National Goals and Directive Principles all people would work to ensure it was effective. So what is the Parliament in the overall picture of the Nation and in the understanding of the people? The preamble to the Constitution asserts that its authority comes from the people and that all power belongs to the people acting through their duly elected representatives. The National Goals and Directive Principles notes in 2(9) that every citizen to be able to participate, either directly or through a representative, in the consideration of any matter affecting his interests or the interests of the community. And under the Basic Social Obligations it is noted that all persons have the obligation (c) "to exercise the rights guaranteed or conferred by this Constitution, and to use the opportunities made available to them under it to participate fully in the government of the nation". It must be acknowledged that people in Papua New Guinea regularly meet together to discuss community problems and community action. The Parliament must be seen in that light as the meeting place of the people, through their representatives, to discuss their problems and plans and to, in the words of the above principles, to participate in the consideration of matters affecting the nation. So Parliament is not merely the law making body. It is the forum for discussions and questions and the overseeing of the government of the nation. People in the village society meet regularly, and so should the Parliament meet regularly. That must be seen to have been the intention of the framers of the Constitution. One does not have to look very far into the requirements and procedures of Government to find many reasons for regular meetings of the representatives of the people to discuss and oversee the workings of the Government. The various Parliamentary Committees such as the Public Accounts Committee and the Works Committee, to name two important ones, would have continuing functions and the obligation to report regularly back to the Parliament and thereby the people. Then there is Government action under the Organic Law on Provincial and Local-Level Governments, which requires the scrutiny of the Parliament. Actions such as the suspension of a Provincial Government must go before the Parliament for its endorsement and I refer here to the case OS 14 of 1999 Momis and Bougainville Provincial Government v NEC where on 15 February 1999 I noted that the Parliament itself still had to consider the suspension and vote on it and I noted then that the delay then in the Parliament meeting could be a serious breach of responsibility by the Government and it was therefore incumbent on the NEC to find there were exceptional circumstances to ensure that there was a meeting of Parliament as soon as possible so that the elected representatives can do their duty and properly consider the action taken and proposed by the Government. And here we are several months further down the track and still Parliament has not met so in the circumstances still current concerning that problem there is a continuing breach of their duty and responsibility by the NEC and the Parliament.
So I find that s 124 is meant to provide a direction and a guide, and it is a direction and a guide, which places an obligation or a duty. Whilst the words ‘in principle’ do not mean an exact accounting of nine weeks, they must, depending on the circumstances, be capable of some meaning and duty. It is not simply a matter of counting up a reckoning of the number of days. What does 9 weeks mean. It cannot mean at the least a sitting of even only one day for each of 9 weeks otherwise the phrase would have said "in nine weeks". So the only other computation of 9 weeks must be the normal one of each week being 7 days and therefore 63 sitting days. So that must be the starting point. Here we have had only 17 days with another 3 days scheduled for in July. That being well under the nine weeks do the 20 days that will be the total cover a reasonable time at reasonable intervals. Clearly not as there is at present a scheduled gap of 7 months and as I have already noted there has been an urgent need to meet since January. Perhaps if there had been 9 weeks at regular intervals when the Parliament had sat and considered the affairs of the Nation on 4 days of each week, being the normal Parliamentary sitting programme, and so long as there were no delayed business to attend to, then in principle the obligation may have been satisfied in the terms of Sch. 1.6 of the Constitution.
Whilst the Supreme Court has said that compliance with the stipulation of the nine weeks is the independent prerogative of Parliament, there must still be some compliance ‘in principle’ with the intention of the requirement for regular sittings at regular intervals. And where there is a breach of duty as I have already found in February in the case referred to above then it must be the duty of the Supreme Court as the ultimate interpreters of the Constitution to say that there has been a failure to comply.
I must therefore find that on an interpretation of 9 weeks and the facts surrounding the present 12-month period of the sittings of Parliament and the present status of the sitting programme there is a breach of the s 124 of the Constitution. As to when the breach occurred I refer to the Organic Law on the Calling of Meetings of the Parliament. Under that Organic Law the procedure for the calling of meetings in these circumstances is laid down in s 2. In this case the Parliament itself has moved that Parliament was to adjourn until 13th July. Having done this there is no procedure for the Parliament or any group of members to seek an earlier meeting. The only procedure for the calling of an earlier meeting is if a State of Emergency is declared or if there are exceptional circumstances however these both need action by the National Executive Council. And it is clear, from the failure of the National Executive Council to act following the clear need to act in January over the suspension of a Provincial Government as noted above, that the National Executive Council has no intention to act in accordance with Constitutional requirements and therefore there is a continuing breach from the time the Parliament voted in December to adjourn for 7 months. I therefore find that in the circumstances of the obligation for regular meetings at regular intervals that there was a breach of the Constitution s 124(1) on the 2nd December 1998 when Parliament put itself in a situation where it no longer had any power to act to remedy the obligation. I answer yes to Question One and the breach has occurred and is continuing.
Re Question 4. This question has a number of questions about how a breach of s 124 can be remedied and the application of s 22 of the Constitution.
Does s 124 impose a duty on the Parliament as a public authority for the purposes on s 22 to mitigate or avoid a breach of s 124? Firstly it is submitted that Parliament is not a public authority. However the Constitution clearly makes reference to the Parliament as an authority: see s 19 it being an authority entitled to make application under the s 19(3)(b); s 100(2) uses the words ‘an authority other than the Parliament’, thereby inferring it to be an authority. However the Organic Law on the Calling of Meetings of Parliament clearly provides no procedure whereby Parliament itself could mitigate a breach. So there can be no procedure to enable the Parliament itself to remedy the breach
It must be open to a person to institute appropriate proceedings in the National Court.
If there is a lack of supporting machinery or procedural laws does s 22 of the Constitution give the National Court jurisdiction to supply the lack? This must be raised before the National Court being the power with the authority under that section.
This must be argued fully before the National Court in an appropriate action.
Re Question 5.
Does s 23(1) of the Constitution give the National Court jurisdiction to make an order imposing a sentence of imprisonment or a fine, if s 124 has been breached? The section appears to be self-explanatory but note that there is the power to make such order in the circumstances as it thinks proper.
Could such an order under s 23 be made against (i) the Members of the Parliament who voted in support of the motion that the Parliament adjourns to 13 July 1999? (ii) Any other person or authority. This would require submissions to the National Court in appropriate proceedings. But note that under the Organic Law the main responsibility for the calling of the Parliament rests with the National Executive Council.
Does s 23(2) give the National Court jurisdiction to make an order to prevent a breach of the duty imposed by s 124 of the Constitution? This subsection appears quite clear and in appropriate circumstances and following appropriate submissions there is power in the National Court to make any order that it thinks proper.
In particular could such an order under s 23(2) be made against: (i) the Parliament, (ii) the NEC, (iii) any other person or authority? This would require appropriate submissions to the National Court however depending on the circumstances the appropriate orders should fit into the scheme and arrangements provided for in the Organic law on the Calling of Meetings of the Parliament. Clearly because of the procedures for the consideration of matters in the Parliament and the way motions are dealt with in the Parliament the National Executive Council must bear some responsibility for the breach and the continuation of the breach and would have an overriding duty to remedy any breach.
LOS J. The Referrer is the Ombudsman Commission (the Commission) which is an authority authorized in s 19(3) of the Constitution to make any reference to the Supreme Court for an advisory opinion of the Court. Under s 19(2) of the Constitution an opinion given on a reference is binding. It says –
"An opinion given under subsection (1) has the same binding effect as any other decision of the Supreme Court".
Mr Maino for the National Executive Council (NEC) raised a preliminary point as to the competency of the reference. That is to say whether the reference was by the Commission when it bore only two signatures, the Chief Ombudsman’s signature was not present. After some exchanges between Counsel and also the Bench, Mr Maino was prepared to accept the reference if the Chief Ombudsman signed the reference subsequently.
The Commission says as the Parliament has sat for a short time and adjourned for a long time the question arises whether the constitutional requirements for the meetings of the Parliament have been breached. If there has been a breach what may be the consequences. In summary the Commission says since 16th July 1998 the Parliament has sat for only 17 days. On 2nd December 1998, the Parliament decided to adjourn for 7 months and 11 days until 13 July 1999.
The facts agreed to by all the parties are:
The important provision of the Constitution that regulates, guides, or mandates the calling and sitting of the Parliament is s 124(1) of the Constitution. It says –
"Calling, etc
The Parliament shall be called to met not more than 21 days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period."
The reference has 5 questions and I deal with the first 3 questions together. These are –
The Commission submits, and with no apparent contrary submissions, that s 124(1) has three elements.
First, the Parliament must be called to meet not more than 7 days after the day fixed for the return of the writs for a general election. This needs no discussion here.
Secondly, the Parliament must meet three times in each period of 12 months. This was discussed in SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141.
Thirdly, which raises the central issue on duty of the Parliament, is that Parliament must, in principle, meet for not less than nine weeks in each such period.
The commission submitted that from the final sitting to the adjournment, Parliament has sat for only 17 days. When it next sits and if it sits for 3 days, it would be for 20 days. Even if the Parliament decides to resume earlier, it would not reach the nine-weeks period required of it under s 124 of the Constitution. For many reason this would be a serious breach.
For the Parliament, it was argued that counting sitting period in days is wrong because the Parliament does more than just sitting. Secondly, it was argued that there is no mandatory requirement that the Parliament must meet for a total period of 9 weeks in 12 months period.
For the NEC, aside from questioning the Commission’s authority to refer the question has adopted a large aspect of the Parliament’s submission.
In response to the argument that the Parliament has so far set for only 17 days it was argued firstly that the Parliament might have set for only 17 days but in between the members performed other duties such as Parliamentary Committee meetings. It was not the law that duration of sittings be counted in days but it must be in weeks and because s 124 requirement is ‘in principle’ whether the Parliament sits exactly from nine weeks is not a matter for the court to decide.
This raises the question what is meant by in principle and whether because of the separation for powers in s 99 of the Constitution whether the court should consider the reference at all. Sch 1.6 of the Constitution says –
"Statements of general principle.
Where a provision of a Constitutional Law is expressed to state a proposition ‘in principle’, then – an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffectual; but if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be so given effect to."
I consider that because the nine-week requirement is stated to be in principle, it gives the Parliament discretion to decide how its programs should be worked out. The Parliament could sit for less than nine-weeks and that fact, alone cannot constitute breach. But ‘in principle' must be worked in the context of an actual case where relevant matters for consideration are a number of days sat, reasons for sitting and amount of business completed.
Because compliance with nine-weeks requirement is in principle the court should be slow to ‘invade' into the exercise of the powers of the Parliament to determine when to sit and when not to sit. However, the Supreme Court is not prohibited in enforcing its constitutional duties in exercising the judicial powers of the people assigned to it under the Constitution when a breach is so apparent and is either by design or recklessness. The Constitution allows intervention of the court. This Court has done that in Haiveta v Wingti (No 3) [1994] PNGLR 197.
The Parliament must meet at least three times in a period of 12 months. That was discussed in detail in SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141. The question raised now is what is nine weeks. This I consider is a step lower than general statement that the Parliament must meet at least three times a period of 12 months. How far can the court go down without delving into the parliamentary prerogative? I think that to avoid stepping over the line by the court into the Parliamentary territory, the Parliament’s obligation is stated to be in principle. I consider however when a super constitutional institution charged with exercising its function and authority over millions of people in the country whether be Judiciary, National Executive Council or Parliament, the fact that a duty seemingly watered down by a phrase in principle cannot be used as a shield to conceal a non observance or non performance of a constitutional function. They must account for what they do because these institutions exercise the powers granted and entrusted to them by the people. In respect of the Parliament s 100(1) of the Constitution says "... the legislative power of the people is vested in the National Parliament". In relation to the accountability of the Parliament, Haiveta v Wingti (No 3) [1994] PNGLR 197 emphasized this point. At page 210 Amet, CJ said one of the fundamental principles underlying the Constitution –
"... is the need for the parliamentary executive government, comprising the Prime Minister and the Cabinet of ministers, to be collectively responsible and accountable to the People, through the Parliament, the collective body of representatives of the People.
"... the need for the office of the Prime Minister and the Cabinet of ministers to be seen to be corporately and collectively responsible and accountable through Parliament by ensuring that Parliament is informed of important decisions . . ."
I consider that looking at the enormous duty on the Parliament, which needs days, weeks and months to perform, nine-weeks must be interpreted in the light of the enormity of the duty. ‘Nine-weeks' must therefore have been intended to show the normal weeks consisting of seven days per week which add to 63 days. Mere 17 days of sitting cannot even be said to have complied with the nine-weeks requirement in principle. I consider therefore there was a serious breach when the Parliament decided to take such a long break and has gone for such a long break.
Question 4
Does s 124(1) of the Constitution impose a duty on the Parliament, as a public authority, for the purposes of s 22 of the Constitution, to mitigate or avoid a breach of s 124(1)?
Having regard to the dates on which the 6th National Parliament has met and its adjournment on 2 December 1998, is there, for the purpose of s 22 of the Constitution, a lack of supporting, machinery or procedural laws to give effect to that duty?
If there is a lack of supporting, machinery or procedural laws, does s 22 of the Constitution give the National Court jurisdiction to supply the lack?
In particular, does s 22 of the Constitution give the National Court jurisdiction to make an order requiring the Parliament to meet on or by a prescribed day for a prescribed period so as to give effect to the duty imposed by s 124(1) of the Constitution?
Question 5
If the answer to Questions 1 or 2 is yes - Does s 23(1) of the Constitution give the National Court jurisdiction to make an order imposing a sentence of imprisonment or a fine, if s 124(1) of the Constitution has been breached.
In particular, could such an order under s 23(1) be made against:
The member of the Parliament who voted in support of the motion that the Parliament adjourn to 13 July 1999?
Any other person or authority?
Does s 23(2) of the Constitution give the National Court jurisdiction to make an order to prevent a breach of the duty imposed by s 124(1) of the Constitution?
In particular, could such an order under s 23(2) be made against ‘The Parliament, requiring it to meet on or by a prescribed day for a prescribed period?’
The National Executive Council, requiring it to advise the Governor-General, pursuant to the to the Organic Law on the calling of Meetings of the Parliament, that it is of the opinion that exceptional circumstances justify the urgent calling of a meeting of the Parliament and that a particular date should be fixed for a meeting of the Parliament?
Any other person or authority?
Having concluded that there was a breach the next question arises how could a sanction be imposed. Under s 22 of the Constitution the National Court may give effect to various rights through analogous procedures. Under s 23 the National Court may sanction breaches of duties imposed by the Constitution. At this stage this court should not theorize what should or what should not happen but it is necessary to point out the availability of sanction.
It is an agonizing thought that Judiciary would even think of sanctioning the Legislature. But greater and older countries like the USA had agonized over such thoughts before us. I refer in particular to the historical case of Marbury v Madison [1 Cranch 2 L Ed 60 (1803)]. The question asked in that historical case was whether it was the Judiciary’s task to interpret the law or should it be Legislature or the Executive. The decision of course went in favour of the Judiciary, the least dangerous branch of the governmental structure where the Executive held the sword of the community while the Legislature commanded the purse and held power to prescribed rules by which the duties and rights of every citizen were regulated.
We who constitute the Judiciary hold no sword nor purse but it is comforting to know that like the National Executive Council and the Parliament we are mere agents of the people. We as agents have no greater power and the authority than the people. The Judiciary should not therefore shrink from declaring breaches of the constitutional duties by the Parliament irrespective of its enforceability.
My answers to the questions are –
Yes, there was a breach.
No answer in view of my answer in Question (1).
The breach has occurred because the decision was made deliberately to avoid any sitting over a long period of time.
(a) Yes.
(b) Yes.
(c) Yes.
(d) Yes.
(e) Yes, but there are difficulties that I would refer to in (b).
The National Court has to address this issue on the facts before it. There is a question whether the institutional veil of the Parliament should be removed to get to the decision makers in particular when a sentence of imprisonment is relevant. Further issue for consideration of the National Court would be whether the National Executive Council which is responsible for calling of the Parliament had connived with the continuing breach by not recalling the Parliament earlier.
Yes.
Yes, although the issue may just be an academic exercise in view of the days remaining before the Parliament would resume on the 13th July.
SHEEHAN J. I have read in draft the opinions of Kapi DCJ, Woods J and Sevua J, and agreed to the conclusions they have reached. Though I am of view that nine weeks of proceedings of Parliament set out in s 124(1) means exactly that and not some lesser period arise out by interpretation of period of six weeks by way working weeks less weekends or public holiday.
Sch. 1.5 of the Constitution provides that each Constitutional Law is intended to be read as a whole and all the provisions and all the words expressions and proposition shall be given their fair and liberal meaning. Section 124(1) of the Constitution details time and numbers. That is the number of times the Parliament shall meet and for how long. The period of nine weeks is a period of duration that it is not a period of time to be watered down by changing the plain wording to mean working weeks or weeks without weekends and public holidays. It is a period of nine weeks, 63 days. As the CPC report records.
As provision "in principle" is shown by Sch 1.6. of the Constitution that essentially provides that so long as Parliament carries out its function in a manner consistence with its obligation and the peoples representative as a due conduct of Parliamentary business throughout the year again, then a failure to meet the exact minimum requirement will not be inconsistent with their intentions and spirit of the Constitutional provisions.
SAKORA J. I have had the benefit of reading the judgment of my brother the Deputy Chief Justice and I respectfully agree with his conclusions on the four questions asked in this reference and his reasons for these. There is no need, therefore, to add anything to what has been said there.
SEVUA J. I have read the judgment of the Deputy Chief Justice and I agree with his views. I only wish to add a few things to reflect my own thoughts.
On 2nd December, 1998; the Parliament resolved to adjourn its sittings to 13th July, 1999; a period of seven (7) months and eleven (11) days. The Ombudsman Commission has filed this special reference because it says, since 16 July 1998; the Parliament has sat for only 17 days.
The parties have agreed to the following facts:
Constitution s 124(1) is the Constitutional provision, which is at the centre of this special reference by the Ombudsman Commission. It provides:
"Calling, etc.
(1) The Parliament shall be called to meet not more than 7 days after the day fixed for the return of the writs for a general election, and shall meet not less frequently than three times in each period of 12 months, and, in principle, for not less than nine weeks in each such period.
(2) An Organic Law shall make provision for the calling of meetings of the Parliament.
(3) Subject to Subsections (1) and (2), an Act of Parliament or the Standing Orders of the Parliament may make provision in respect of the sittings of the Parliament.
The Ombudsman Commission has referred five Questions to the Supreme Court for its opinion pursuant to s 19 Constitution.
It is my view that, in order to answer Question 1, Question 4 (a) should be determined first. I consider that the Court should, first and foremost, determine whether or not s.124(1) imposes a duty on the Parliament. There are three requirements in s 124(1), and, the Supreme Court in SC Reference No. 4 of 1990 by Acting Principal Legal Adviser [1994] PNGLR 141 has already concluded that the first two requirements impose a duty on Parliament. I agree with that conclusion.
I now set out Questions 1 and 4 in full and I will attempt to answer them.
Question 1 Having regard to the dates on which the 6th National Parliament has met, was s 124(1) breached when the Parliament decided on 2 December 1998 to adjourn to 13 July 1999?
Question 4
If the answer to Question 1 or 2 is yes-
(a) Does s 124(1) of the Constitution imposes a duty on the Parliament, as a public authority, for the purpose of s 22 of the Constitution, to mitigate or avoid a breach of s 124(1)?
The three requirements of s 124(1) are these: Firstly, the Parliament must be called to meet not more than 7 days after the day fixed for the return of the writs for a general election. Secondly, the Parliament must meet at least three times in each period of 12 months. Thirdly, the Parliament is required to meet not less nine weeks in each period of 12 months. The first two elements are not relevant for our purpose, but the third is.
As a matter of construction, I consider that the second imperative "shall" appearing in the second requirement, must be read into the third requirement, so that my construction of the third requirement would read, "the Parliament ‘shall’ meet, in principle, for not less than nine weeks in each period", (my own emphasis). It is my view that when one construes the third requirement the way I have proposed, its interpretation and application will become clearer.
The words, "in principle", has already been discussed in SCR 4 of 1990 (supra). The majority (Kidu CJ, Amet J, Hinchliffe J and Sheehan J) concluded that the requirement that Parliament meets not less than nine weeks apply "in principle" only. By Sch. 1.6, that requirement is directory and not mandatory, therefore compliance is the prerogative of Parliament.
With the greatest respect, I do not agree with that statement of the law, because, in my view, the National Parliament is subject to the Constitution. The National Parliament is a creature of the Constitution and must therefore be subject to the dictates of the Constitution. Even the Organic Law on the Calling of Meetings of the Parliament and the Standing Orders of the Parliament which deal with procedures of Parliament are primarily sourced from the Constitution, s 124(3). The supremacy of the Constitution provided by s 10, in my view, is the basis for a good, strong and vibrant Parliamentary democracy. As the Constitution itself reigns supreme to all other laws, it follows in my view, that those other laws and any institution established by those laws must be subject to the Constitution as the supreme law of the land. The Parliament, the Organic Law on the Calling of Meetings of the Parliament and the Standing Orders of the Parliament should be no exception. In particular, I consider that the Parliament and its proceedings or procedures must comply with any mandatory constitutional requirement.
Counsel for the referrer, Mr Cannings, has submitted a number of propositions in respect of the correct interpretation of the words "nine weeks" appearing in the third limb of s 124(1). Both Mr Coady and Sir Charles have made submissions in response. Literally, one week is seven days, so you cannot have a week consisting of less than seven days. In the absence of a definition of "week" in the Constitution or the Interpretation Act, I do not think I can accept the proposition that one or two sitting days in a week constitutes one week. Furthermore, in the absence of any persuasive authority, I am not inclined to accept that proposition. However, taking into account the fact that the government and most of its instrumentalities function and operate five days a week, I am inclined to accept that five sitting days in a week may constitute one week.
A close scrutiny of the judgment of the five members Supreme Court in SCR 4 of 1990 (supra) clearly reveals that the third requirement of s 124(1) was not an issue before that Court.
The three questions referred to the Court in that case did not include the third limb. The issue of construction or interpretation of the third requirement did not arise then. It is therefore my respectful view that the majority in that reference, with the greatest respect, reached a conclusion prematurely, perhaps without the benefit of full arguments. But the issue has arisen now in this reference, therefore it is imperative that this Court expresses its view on it so as to avoid any further ambiguity or uncertainty.
I reiterate my view that the second imperative "shall" appearing in s 124(1) makes it mandatory when reading the second and third limbs together. Thus, the third requirement of s 124(1) is that, Parliament must meet a minimum of nine weeks, not less than nine weeks. The words, "in principle", in my view mean that, the proposition that the Parliament sits for not less than the nine weeks, is in principle only. In my opinion, parliament can sit for a minimum of nine weeks or more than nine weeks, but not less.
The Constitutional Planning Committee (CPC) had intended that the nine weeks be the minimum length of time Parliament should sit in a period of 12 months. The CPC Report, Ch 6 p31 para 80 states
"In any period of twelve months, there shall be at least three meetings of the National Parliament, and the meetings held shall have a total duration of at least nine weeks."
In my view, s 124(1) reflects and supports the CPC intention in its report, except that the draftsmen of the Constitution had imported the words "in principle" into s 124(1). It is my opinion that, the CPC had intended that nine weeks be the minimum period Parliament shall sit in its three meetings in a 12 months period.
It is my opinion that, if the CPC had intended that the Parliament should sit for a maximum of nine weeks or not more than nine weeks, it would have stated so in its report.
As it were, it was the intention of the CPC that the minimum period to sit was nine weeks, therefore, in principle, Parliament can sit for a minimum of nine weeks or Parliament could sit for more than that period, if need be.
Because I have taken that view, I consider that the third limb of s 124(1) is mandatory. It imposes a mandatory duty. Accordingly, strict compliance by the Parliament is required. The Parliament does not, and can never have, an independent prerogative when the Constitution imposes a duty. It has no right or prerogative to exercise other than to strictly comply with a mandatory constitutional duty.
Where the Constitution imposes a duty on the Parliament, the Parliament has an obligation to carry out that duty. If Parliament breaches that duty, the National Court, pursuant to its judicial and constitutional authority conferred by s 22 and s 23 is entitled to enforce such a breach and impose such sanctions it considers under the Constitution appropriate in the circumstances.
In respect of the words, "in principle", I am in agreement with the view expressed by Kapi DCJ in SCR 4 of 1990 (supra) at 158, in so far as those words are considered with Sch. 1.6(b). In fact, I agree with His Honour’s views expressed on this issue in the present reference.
I would therefore answer the Ombudsman Commission's questions in the following manner.
Question 1
Yes. I find that the third limb of s 124(1) is mandatory and therefore imposes a duty. I find that when Parliament decided to adjourn its sittings on 2nd December, 1998 to 13th July, 1999, it breached that duty. For as long as such a breach is not remedied or mitigated, the breach continues.
In view of my answer to Question 1, the issue of non-justifiability does not arise.
Questions 2 and 3
Since my answer to Question 1 is yes, I decline to answer questions 2 and 3.
Question 4
(a) Yes. Section 124(1) imposes a duty.
(b) No.
(c) Yes. Section 22 gives original jurisdiction to the National Court if there is a lack of supporting, machinery or procedural laws. However, any issue arising from such lack should be addressed at the National Court.
(d) Yes. Section 22 confers jurisdiction on the National Court to enforce the Constitution, however, any issues relating to enforcement should be raised in the National Court in an actual proceeding.
Question 5
Yes. Section 23(1) confers jurisdiction on the National Court to impose a penalty where a breach has occurred under s 24(1).
(b) (i) and (ii) These questions should be raised in the National Court.
(c) Yes. Section 23(2) confers jurisdiction in the National Court to make appropriate orders either to remedy or prevent a constitutional breach.
(d) i. Yes.
Lawyer for the Ombudsman Commission: Mr Canning with Mr Kingal.
Lawyer for the State: Henao Lawyers & Maino & Associates.
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