Tuesday 16 June 2020

IN THE SUPREME COURT OF JUSTICE re John Momis and BEC lose 4 Judges against to 1 Judge for Momis' case

PacLII

Special Reference Pursuant to Constitution, Section 19(1), Reference by the Bougainville Executive [2020] PGSC 42; SC1952 (29 May 2020)

SC1952

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


SC REF NO 2 OF 2020


SPECIAL REFERENCE PURSUANT TO
CONSTITUTION, SECTION 19(1)


REFERENCE BY THE BOUGAINVILLE EXECUTIVE


RE SECTIONS 89(2) AND 91(4)(f)
OF THEBOUGAINVILLE CONSTITUTION


Waigani: Salika CJ, Kandakasi DCJ,
Kirriwom J, Gavara-Nanu J, Cannings J
2020: 7th, 29th May


CONSTITUTIONAL LAW – Basic Rights – National Constitution, s 50 (right to vote and stand for public office) –Bougainville Constitution, ss89(2) (election of President) and 91(4)(f) (qualifications and disqualifications from election as President) –whether laws that prevent a person being elected President on more than two occasions are inconsistent with s 50 of National Constitution– whether Bougainville Constitution, ss 89(2) and 91(4)(f), prohibit exercise of the right to be elected to elective public office or are a reasonable regulation of it. 


The Bougainville Executive (the referrer) referred two questions of constitutional interpretation to the Supreme Court under s 19 of the National Constitution.The questions concern two provisions of the Bougainville Constitution, ss 89(2) and 91(4)(f), which provide that a person cannot be elected as President of the Autonomous Region of Bougainville on more than two occasions. The questions are whether those provisions are inconsistent with s 50(right to vote and stand for public office) of the National Constitution due to them preventing a person who has been President on two occasions being re-elected as President. Two persons were granted leave to appear as interveners in the proceedings: the Speaker of the Bougainville House of Representatives (first intervener) and the Attorney-General of Papua New Guinea (second intervener). 


The referrer argued that ss 89(2) and 91(4)(f) of the Bougainville Constitution are inconsistent with s 50 of the National Constitution and should be declared to be unconstitutional, invalid and of no effect. The first intervener argued that the Court should decline to give an opinion as the question of operation of the BougainvilleConstitution should be left to the Bougainville House of Representatives to determine, and in the alternative argued that there was no inconsistency between ss 89(2) and 91(4)(f) of the Bougainville Constitution and s 50 of the National Constitution. The second intervener took no clear position. 


Held: 


(1) (Per Salika CJ, Kandakasi DCJ, Kirriwom J & Cannings J; Gavara-Nanu J deciding otherwise): Sections 89(2) and 91(4)(f) of the Bougainville Constitution are not inconsistent with s 50 of the National Constitution, and are not unconstitutional.

(2) (Per Salika CJ): The Supreme Court must not be seen to be derailing the efforts of the Bougainville people and stopping them to progress. Sections 89(2) and 91(4)(f) of the Bougainville Constitution are a reasonable regulation of the rights of all citizens under s 50 of the National Constitution, and are not unconstitutional.

(3) (Per Kandakasi DCJ): A person claiming a law is not “reasonably justified in a democratic society” must establish it with appropriate evidence. The referrer failed to establish that the restrictions imposed by ss 89(2) and 91(4)(f) of the Bougainville Constitution are unreasonable and not justified in a democratic society like Papua New Guinea’s.

(4) (Per Kirriwom J): The doctrine of separation of powers requires that law-making powers vest in the legislature. If the Bougainvilleans think that the Bougainville Constitution deprives them of voting for a person as president who is the right person for the job and they want to keep voting for that person to serve more than two terms, the Bougainville House of Representatives is the only forum in which the Bougainvillean laws should be changed. The Supreme Court is not the right forum in which to change the Bougainville Constitution. 

(5) (Per Gavara-Nanu J: Sections 89(2) and 91(4)(f) of the Bougainville Constitution are an impermissible restriction of the rights of all citizens under s 50 of the National Constitution, and are unconstitutional.

(6) (Per Cannings J): the two-term limit imposed by ss 89(2) and 91(4)(f) of the Bougainville Constitution is a reasonably justifiable regulation of the rights of all PNG citizens under s 50(1) of the National Constitution. 

(7) By 4:1 majority: both questions the subject of the Special Reference are answered No. Sections 89(2) and 91(4)(f) of the Bougainville Constitution are not unconstitutional.

Cases Cited


The following cases are cited in the judgment:


In re Reference by East Sepik Provincial Executive [2011] 2 PNGLR 126
In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (2001) SC678 
Namah v Pato (2016) SC1497
Re Alleged Brutal Treatment of Suspects (2014) N5512
Re Human Rights of Prisoners Sentenced to Death (2017) N6939
Re Release of Prisoners on Licence (2008) N3421
SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 176
SC Ref No 1 of 1984 Re Minimum Penalties Legislation [1984] PNGLR 314
SC Ref No 1 of 1986, Re Vagrancy Act [1988] PNGLR 1
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319
SC Ref No 1A of 1981, Re Motor Traffic Act [1982] PNGLR 122
SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214
SC Ref No 5 of 1992, Re Organic Law on National Elections  [1992] PNGLR 114
SC Ref Nos 1 & 2 of 2012, Re Prime Minister and National Executive Council Act Amendments [2012] 1 PNGLR 74
Special Reference by the Morobe Provincial Executive (2005) SC785
Sup Ct Ref No 2 of 1984, Re New Ireland Provincial Constitution [1984] PNGLR 81
The State v NTN Pty Ltd [1992] PNGLR 1
The State v Paul Pokolou (1983) N404


REFERENCE


This was the determination of a Special Reference under s 19 of the National Constitution.


Counsel


L R Henao & R Raka, for the Referrer, the Bougainville Executive
G J Sheppard & P Tabuchi, for the First Intervener, the Speaker of the Bougainville House of Representatives 
T Tanuvasa, for the Second Intervener, the Attorney-General of 
Papua New Guinea


29th May, 2020


  1. SALIKA CJ: I have read the draft judgments of Kandakasi DCJ and Kirriwom J and Cannings J and agree with the reasons for the answers they arrived at.The greater issues relating to the Autonomous Region of Bougainville at this stage of Bougainville’s political development are not settled yet. A referendum was conducted in 2019 and a result announced. There are important processes of Bougainville’s aspirations for self-determination yet to be completed. 
  2. At this stage, the status of the Bougainville Constitution should be maintained, in my respectful view. This Court must not be seen to be derailing the efforts of the Bougainville people and stopping them to progress. Bougainville is part of PNG. PNG agreed for it to be granted autonomy. The People of Bougainville have observed and learnt from their experiences as Papua New Guineans,
  3. They have also observed governments globally and made a conscious decision to have a presidential type of government. Is selecting a presidential type of government unconstitutional too? The referrer is not seeking to have the system of government chosen by Bougainville to be declared unconstitutional.
  4. They made a considered decision for a presidential style of government, which is a different style of government from PNG. Under a presidential style of government, the entire population of Bougainville elects the President. In PNG, the Parliament elects the Prime Minister, and the Prime Minister can be replaced or removed by a vote of no confidence according to the relevant provisions of the Constitution. Bougainville has deliberately decided against the election of the President by its Parliament, and has also decided that a President can only serve two terms. There are good reasons for a very powerful person, namely the head of government of a country, to have two terms only, one of which is the corruptive nature of power. In my respectful opinion, a limit of two terms of service as President is reasonable.
  5. I do not consider ss 89(2) and 91(4)(f) of the Bougainville Constitution to be inconsistent with s 50 of the National Constitution. My answer to both questions in this Special Reference, for the reasons given above and for the reasons articulated by Kandakasi DCJ and Kirriwom J and Cannings J, is No. 
  6. KANDAKASI DCJ: The Bougainville Executive Council has referred two identical constitutional questions pursuant to the combined provisions of ss 19 and 301 of the National Constitution and s 209(b) of the Bougainville Constitution. These provisions authorise the Bougainville Executive Council to refer and grants this Court the necessary jurisdiction to deal with the questions.
  7. The identical questions are:

(1) Is Section 89(2) of the Bougainville Constitution inconsistent with Section 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public function is restricted, therefore is unconstitutional, invalid and is of no effect?


(2) Is Section 91(4)(f) of the Bougainville Constitution inconsistent with Section 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public function is restricted, therefore is unconstitutional, invalid and is of no effect?


  1. I have had the benefit of reading the draft judgment of my brother Cannings J. His Honour has ably summarised the questions, reproduced the relevant provisions of the National Constitution and that of the Bougainville Constitution and the background leading to this reference, which I need not repeat. I agree with his Honour’s view that, the questions presented are indeed one question that is applicable to two different provisions in the Bougainville Constitution, namely ss 89(2) and 91(4)(f). I also agree with his Honour that, these questions are properly before this Court for the reasons his Honour gives. Further, I agree with his Honour’s proposed answers to the questions for the reasons he gives. I will only add a few comments, observations and possibly reiterate some of the points his Honour makes in his judgment.
  2. The main thrust of the Bougainville Executive Council’s argument through its learned Counsel, Mr Henao is that, subject to the restrictions specifically placed by the Constitution itself, s 50 of the National Constitution grants all citizens:

... of full capacity and has reached voting age, ... the right, and shall be given a reasonable opportunity—

(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.


  1. In line with subsection (2) of the same provision, Mr Henao agrees that this right is subject to be “regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.” Proceeding on that basis, Mr Henao submits that ss 89(2) and 91(4)(f) of the Bougainville Constitution, rather than regulating, they restrict the right granted by s 50 of the National Constitution, in that these provisions prohibit a person who has been “elected as President on more than two occasions” from contesting the presidency. Accordingly, he argues that these provisions are unconstitutional and therefore invalid and of no effect.  
  2. This calls for consideration of the relationship between the National Constitution and the Bougainville Constitution. His Honour, Cannings J has cited the relevant provisions of both Constitutions that need to be considered and their effect on the matters under consideration. I adopt those as my own and add a few points.  
  3. Firstly, in accordance with the provisions of s 286(1) of the National Constitution and s 206(2) of the Bougainville Constitution, the Bougainville Constitution is “the Supreme Law of Bougainville”. This in my view means, the Bougainville Constitution is the constitutional law that applies when it comes to matters that are exclusive to or only applicable to Bougainville. However, if the subject matter is one that is applicable throughout the country, the National Constitution would apply. It would follow therefore that, any provision in the Bougainville Constitution that contradicts a provision in the National Constitution would be unconstitutional, invalid and ineffective.
  4. I note, in practice, that is the case when it comes to National General Elections. There are a number of seats in the PNG National Parliament for members representing a number of electorates including the Bougainville Regional Seat. The law that governs the election of representatives into these offices is the National Constitution and the Organic Law on National and Local-level Government Elections. There is no contest that s 50 of the National Constitution applies to the whole of the country, including Bougainville. This provision is the applicable provision when it comes to National Elections. The National Constitution does not provide for elections and for qualification of persons to stand for an elective office or become a candidate in an election in Bougainville. The applicable law only for Bougainville is the Bougainville Constitution as provided for in s 276(1) of the National Constitution. 
  5. Secondly, on the question of whether, the provisions of s 89(2) and 91(4)(f) are only regulating or prohibiting the right to stand for an elective public office or vote under s 50 of the National Constitution is something I turn to next. In addition to what my learned brother Cannings J says, I note that s 50 itself starts with “Subject to the express limitations imposed by this Constitution...” The Bougainville Constitution is part of the PNG Constitution and is in the same level as Organic Laws. It should follow therefore that, ss 89(2) and 91(4)(f) of the Bougainville Constitution are part of the National Constitution.Consequently, the limitations expressly provided for by these provisions are, in my respectful view, already part of what is already expressly provided for by s 50 itself right in its opening provisions.
  6. Thirdly, s 50(1)(a) – (ba) already provide for a restriction or a disqualification of a person from an exercising of the right granted by this section in the following terms:  

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country.


  1. There is nothing in this provision which indicates that the above list is exhaustive. The provisions of ss 89(2) and 91(4) of the Bougainville Constitution do nothing more than add to the list of categories that would disqualify a person from exercising the right under s 50. None of these restrictions are under any challenge. If we went through each of the factors listed in s 50(1)(a)–(ba) and ss 89(2) and 91(4), the intent behind including each of these categories onto the list becomes obvious. Taking paragraphs (a) – (ba) in s 50(1) for example, the intention is to exclude convicted criminals and persons who are also citizens of other countries standing for an elective office. The elective offices are public offices and the intention is to keep away persons falling under these categories for the protection of the offices and the public. The intention to keep the kind of persons caught by the various categories under ss 89(2) and 91(4) of the Bougainville Constitution out are obvious. Turning specifically to exclusion of a person who has “already been elected as President on two occasions”, the intention is also clear. A person falling under such a category has already had his turn in exercising his or her right under s 50 of the National Constitution. This kind of restriction is not a new idea or unique to Bougainville.The Report of the Bougainville Constitutional Commission, July 2004, succinctly states the intent and purpose well in these terms:

The BCC determined that the best interest of Bougainville would be served by restricting the President to two terms only ... As happens in other jurisdictions (including the United States and many Africa, Asian and European states) a restriction of this nature is directed towards ensuring that no one politician dominates this key post and also to ensure that a process of regeneration is provided for by a fresh face at least every ten years.


  1. Fourthly, subsection (2) of s 50 allows for a regulation of an exercise of this right by “a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.” This concept of a law being reasonably justified in a democratic society has received this Court’s attention, interpretation and application on a number of cases. Some of the cases on point have already been cited in Cannings J’s judgment. The principles enunciated in those cases make the point that a person claiming a law is not “reasonably justified in a democratic society” must establish it with appropriate evidence. Given the history leading to the amendment to the National Constitution to allow for the Bougainville Constitution and reasons advanced for having the restrictions in ss 89(2) and 91(4)(f) as well as the fact the Bougainville Constitution is an interim arrangement pending a referendum and change to the status of Bougainville that may arise therefrom (s 206 of the Bougainville Constitution) it was incumbent on the referrer to establish by appropriate evidence that the restrictions imposed by ss 89(2) and 91(4)(f) are unreasonable and not justified in a democratic society like ours. This, the referrer failed to do. 
  2. For these reasons, I would answer both of the questions referred to this Court in the negative.
  3. KIRRIWOM J: I have read the judgment of Cannings J in this Special Reference and I am in agreement with the answers proposed by him. I wish only to add some comments as I consider this case to be an important landmark case for both Bougainville and the rest of the country. My approach to answering the question of constitutionality of the laws in the Bougainville Constitution that are subject of this reference is based more on conscience than legalism. Therefore I will give a brief chronology of the events leading up to the reference being filed laying the basis upon which I let my conscience guide me to the most appropriate conclusion in the entire circumstances of the case before the Court. 
  4. The laws that are subject of this Special Reference are ss 89 and 91 of the Constitution of the Autonomous Region of Bougainville and s 50 of the National Constitution. 
  5. The Bougainville Executive filed this Special Reference seeking an interpretation of ss 89(2) and 91(4)(f) of the Bougainville Constitution, in particular whether those laws are harmony with s 50 of the National Constitution. As the referrer, it is contending that ss 89(2) 91(4)(f) are inconsistent with s 50 and must therefore be declared null and void.
  6. The Special Reference questions are:
    • (1) Is Section 89(2) of the Bougainville Constitution inconsistent with Section 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect?
    • (2) Is Section 91(4)(f) of the Bougainville Constitution inconsistent with Section 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect?
  7. Sections 89 and 91 of the Bougainville Constitution relate to election of the President and the qualifications for and disqualifications from election as President. Section 50 of the National Constitution gives every citizen the right to vote and stand for public office.
  8. This reference is coming before this Court for an opinion on this question as Bougainville is only a month away from going into its fourth general election under its own Constitution. 
  9. Section 50 of the National Constitution provides:

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or


(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph, or


(ba) has dual citizenship of another country, 


has the right, and shall be given a reasonable opportunity—


(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and


(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and


(e) to hold public office and to exercise public functions.


(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.”


  1. Sections 89 and 91 of the Bougainville Constitution provide:

89: Election of President


(1) The President shall be elected by the electors of the Autonomous Region of Bougainville.

(2) A person shall not be elected as President on more than two occasions.

(3) Except as provided by Section 90 (special election of President), the election of a President shall be held as part of, and at the same time as, a Bougainville general election under Section 107 (Bougainville general elections) and for that purpose – 
  • (a) the provisions of this Constitution relating to Bougainville general elections, with the necessary modifications, apply; and
  • (b) the whole of the Autonomous Region of Bougainville is a single constituency. [Underlining added]

91: Qualifications for and disqualifications from election as President


(1) Until a Bougainville law made by an absolute majority vote provides otherwise, a President must be not less than 40 years of age.

(2) A candidate for election as President must be qualified to vote in elections to the House of Representatives.

(3) A candidate for election as President must be a Bougainvillean.

(4) A person is not qualified to stand, or to continue to stand for election as President – 
  • (a) if he is not qualified or becomes disqualified, in accordance with Section 110 (right to vote) to vote in an election to the House of Representatives; or 
  • (b) he is of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or 
  • (c) he is under, or becomes subject to, a sentence of death or imprisonment for a period of more than three months; or 
  • (d) he is, or becomes disqualified from standing for election under this Constitution; or 
  • (e) he is, or becomes, a member of, or a candidate for election or appointment to, the National Parliament, or to the House of Representatives; or 
  • (f) he has already been elected as President on two occasions; or 
  • (g) he has been declared bankrupt by a court of competent jurisdiction, and remains bankrupt; or 
  • (h) he has nominated in an election to be held at the same time as a candidate for election as – 
    • (i) a member representing a single member constituency under Section 55(2)(b)(i) (establishment and composition of the House of Representatives); or 
    • (ii) a woman member to represent the interests of women under Section 55(2)(b)(ii) (establishment and composition of the House of Representatives); or
    • (iii) a former combatant member to represent the interests of former combatant members under Section 55(2)(b)(iii) (establishment and composition of the House of Representatives); or 
  • (i) if the election is an election for President under Section 58(5)(d) (recall of member of the House of Representatives) and the person is the person whose recall is the subject of the poll under Section 58(5)(c) (recall of member of the House of Representatives).

(5) Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. [Underlining added] 


Bougainville Executive’s position


  1. The referrer’s case is that ss 89(2) and 91(4)(f) prohibit a person who has already held the office of the President for two terms from seeking a further term in the office of the President of the Autonomous Region of Bougainville, and the effect of that restriction is that they deprive and deny that person the right to hold and/or stand for elective public office, which is of the President, and thereby deny him this special right all citizens are guaranteed by the National Constitution.

Speaker of the House of Representatives’ position


  1. The first intervener, the Speaker of the House of Representatives, disagrees and contends that the two sections are not prohibitive but merely regulate the system of Government Bougainville has adopted through its own Constitution. 

Attorney-General’s position 


  1. The second intervener, the Attorney-General of Papua New Guinea, took a view different to his earlier position captured in the written submission of the Solicitor-General supporting the Referrer. 

Bougainville system of government 


  1. The Bougainville Constitution provides for an elective legislature and accountable executive under s 282 of the National Constitution. The structure of Bougainville Government is the same as the National Government except for the office of the Chief Executive Officer referred to as the President who is elected directly by the People and whose term in office is limited to two terms of five years each. The President is the head of the Executive and on his election, he appoints a Vice-president from amongst the Members of the House of Representatives (s 96 Bougainville Constitution). Other members of the Executive Government assume office in accordance with the process set out in ss 80, 81-84 of the Bougainville Constitution. 
  2. There have been three elections held in Bougainville under its Constitution since 2005 and John Lawrence Momis has occupied the office of President in the last two terms of five years each. By virtue of s 89(2) of the Bougainville Constitution Mr Momis cannot seek re-election for the third term and s 91(4)(f) disqualifies him for seeking re-election for the third term. 
  3. There are total number of 41 seats in the Bougainville House of Representative comprising the President, 33 members representing constituencies, three women members representing interests of women, three representatives of former combatants and the Speaker.

Failed attempt to amend Bougainville Constitution


  1. In January 2020 several motions were introduced in the House of Representatives by the Attorney-General and Minister for Justice Honourable Ezekiel Masatt to amend s 89(2). The same should have been done for s 91(4)(f) but it was not realised that when the motion to amend s 89(2) did not muster the absolute majority vote after the second reading and by the Speaker’s ruling, the motion lapsed. The absolute majority needed for the proposal to move forward to the third reading required 27 votes but it could only muster 25 in favour, and 14 against, with no abstentions. The proposal to amend the Bougainville Constitution through the legislative process of the House of Representatives failed.
  2. Following that result, this Special Reference was made by the Bougainville Executive for this Court to give its opinion on the constitutionality of the two sections, the subject of the failed legislative attempt for change. 

Issue


  1. The critical issue is whether ss 89(2) and 91(4)(f) of the Bougainville Constitution are restrictive and or prohibitive to the extent that this Court should interfere in the law-making function of the legislature. If the answer is in the affirmative then obviously both sections cannot stand according to case authorities such as In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (2001) SC678, SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319 and SC Ref Nos 1 & 2 of 2012, Re Prime Minister and NEC Act [2012] 1 PNGLR 74. 

Prohibition or regulation amounting to prohibition?


  1. It is submitted that ss 89(2) and 91(4)(f)of the Bougainville Constitution impose a restriction and in effect prohibit the rights of a citizen, who has been elected as President on two occasions from exercising his right in the terms of s 50(1) of the National Constitution. 
  2. It is also submitted that ss 89(2) and 91(4)(f) are not only prohibitive, but also discriminatory and unfair in that of all citizens who are eligible to stand for the office of the President at a general election, only one person in this instance is singled out and banned from running for the office of the President just because he has been elected as President on two occasions. It is argued that there is no justification under s 50(2) of the National Constitution for his rights under paragraphs (c), (d) and (e) of s 51(1) being restricted and/or prohibited. 
  3. I have taken note of the forceful arguments presented by Mr Henao for the referrer. However, I am not convinced that either of the two sections, the subject of this constitutional challenge, are prohibitive or restrictive in effect that amounts to prohibition. 
  4. In my view this is a case that falls well within the parameters of s 50(2) of the National Constitution. In the wisdom of the founders of the Bougainville Constitution a deliberate decision was made to impose a clear restriction or limitation on the term of office of the President by enactment of ss 89(2) and 91(4)(f) that regulate that qualified right so that no one person holds that office indefinitely or for too long a term thereby denying others the right also to aspire to contest for the top seat. It is clear to me as evidenced by the Report of the Bougainville Constitutional Commission that this was what was intended for Bougainville, when comparing the National Constitution and other constitutions and systems across the globe. 

Separation of powers 


  1. This is not an appropriate case for the Supreme Court to read and construe the provisions in question in such a way that interferes with the law-making powers of the House of Representatives. This is a case where the Supreme Court must confine its inherent powers and jurisdiction to its primary role and function of interpretation and application of the Constitution as it is or as it stands. This is a case where the doctrine of separation of powers enshrined in s 99 of the National Constitution – which provides for the separation and independence of the three arms of government – must come into full play and be respected. 
  2. This Court must leave the important task of law-making where it belongs – in the legislature – and concentrate on the Court’s tasks of interpreting and applying laws and deciding disputes between parties in accordance with law. 
  3. Although there have been occasions on which the Supreme Court has had to step in and strike down or declare invalid laws made by the Parliament, that has been done only in cases where the legislature has made laws clearly in contravention of the National Constitution. That is because the Parliament is subject to the Constitution as is every person in the country and every institution of government, including this Court. 
  4. In this case, judicial intervention is unwarranted, uncalled for, unnecessary and unjustified. The Supreme Court must not go there.

Bougainville Constitution made by the People of Bougainville


  1. Sections 89(2) and 91(4)(f) are in the Bougainville Constitution because of a deliberate, carefully considered and accepted decision of the People of Bougainville. It is their Constitution. They made it themselves. It was not imposed on them by anyone, least of all by the Government of Papua New Guinea. 
  2. The two-term limit for the office of President was a specific recommendation found in the July 2004 Final Report of the Bougainville Constitutional Commission. It was not an afterthought. it was not an inclusion by oversight. It is what the People of Bougainville wanted, and they gave it to themselves. 
  3. It is not a unique provision. And it is not permanent. Parliaments make laws. And parliaments repeal laws that no longer serve the interests of the people for whom the laws were made in the first place. 
  4. Law-making powers in our system of government vest in the legislature. If the Bougainvilleans now think that this law is bad or that it deprives them of voting for a person as president who is the right person for the job and they want to keep voting for that person to serve more than two terms, the Bougainville House of Representatives is the only forum in which the Bougainvillean laws should be changed. This Court is not the right forum in which change the Bougainville Constitution. 
  5. What is in the Bougainville Constitution is the manifestation of the will and desire of the People of Bougainville as a unique and autonomous region quite distinct from the rest of Papua New Guinea. It has its own system of Government that is unique to the Bougainville. 
  6. This law was not drafted by one man who forced it upon the people of Bougainville to accept for there to be room for oversight, inadvertence or mistake. This law was deliberately thought out, considered, debated and incorporated into the Bougainville Constitution for good reasons by a Committee of eminent people after widest possible consultation with the People of Bougainville. 
  7. And this is clearly reflected in the Report of the Bougainville Constitutional Commission I referred to earlier which states at page 177:

Number of Terms of Office for the President

The BCC determined that the best interests of Bougainville would be served by restricting the President to two terms only (sub-clause 88(2)). As happens in other jurisdictions (including the United States and many constitutions of African, Asian and Europeans states) a restriction of this nature is directed towards ensuring that no one politician dominates this key post and also to ensure that a process of regeneration is provided for by requiring a fresh face at least every ten years.


Supreme Court must respect the will of People of Bougainville 


  1. One cannot go any further past this wish of the people through a Supreme Court review process to contradict the expressed view of the legislators in the HoR. That statement is a clear manifestation of the desire and wish of the people of Bougainville that cannot be changed by a judicial declaration except through and by the people through their legislature. 
  2. The Supreme Court in In re Constitutional (Amendment) Law 2008, Reference by the Ombudsman Commission [2013] 1 PNGLR 233 said that the passage of laws is the role of the Parliament which is the supreme-law making body under s 100 of the National Constitution. This Court cannot intervene unless the Parliament has clearly breached the Constitution, as this would be a clear violation of the separation of powers doctrine as defined in s 99 of the National Constitution. 
  3. In the context of the Autonomous Region of Bougainville, the House of Representatives is the appropriate body mandated to make laws and for that matter to repeal or amend laws under s 54 of the Bougainville Constitution which provides in very clear terms that the legislative power of the ABG is vested in the House of Representatives. And the House of Representatives had convened to address this specific motion for amendment to the Bougainville Constitution but the motion failed to muster the required two-thirds absolute majority of 27 members, and it was defeated 23/14. That, from my perspective, was a clear reflection of the desire of the People of Bougainville that now is not the right time to amend their Constitution. That is where the journey ends and should remain.
  4. That decision must be respected. This Court must submit to those voices. 

No evidence to justify amendment


  1. No evidence was presented before the Court to justify the amendment as to whether there was an overwhelming desire for change and there was change in the attitude of the majority of Bougainvilleans who wanted this law changed so that whoever held the office of President can remain in office without restriction or indefinitely as long as the democratic process of election was followed. In this case there was no evidence presented of the incumbent expressing an interest to go for another term as President but for the restrictions in ss 89(2) and 91(4)(f) of the Bougainville Constitution.

No breach of s 50 National Constitution


  1. This is not a case of violation of s 50 rights as in those cases I alluded to earlier where the Supreme Court’s inherent jurisdiction was successfully invoked and the offending laws were struck down. This was not a case of inadvertence such as, in my view, SC Ref No 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 where an amendment to the Motor Traffic Act authorized the police to issue traffic infringement notices to traffic offenders who refused to pay fines for violations of traffic laws and advised to appear in court on a specified day. And if the person failed to appear in court on the specified day, he was deemed guilty and a conviction recorded against him. The law was declared invalid and unconstitutional as the amendment usurped a function that was essentially judicial in nature. 
  2. Where there has been a deliberate choice made of a particular need after careful consideration of different options available on the globe, the judicial law-making power must rarely be invoked to usurp the law-making functions and responsibilities of the legislature which is the right forum for any change to be effected to existing laws, constitutional or ordinary Acts of Parliament. As Kidu CJ said in The State v Paul Pokolou (1983) N404: “The principle of separation of powers permeates the Constitution.” In saying that his Honour went on to find that the action of the Court was invalid because it usurped the legislative function of the Parliament. 
  3. Under the Bougainville Constitution, s 110, only citizens of Bougainville can participate in the elections of representative to the House of Representative on Bougainville. In that narrow context, s 50 of the National Constitution can be read and applied, in so far as it affects the rights of other Bougainvilleans.

Bougainville Constitution made by Bougainvilleans for Bougainville 


  1. The rationale for having ss 89(2) and 91(4)(f) in the Bougainville Constitution that restricts a Bougainville citizen to only two terms in office or ten years in office as President is well expressed in the Final Report of the Bougainville Constitutional Commission referred to earlier.
  2. The Bougainville Constitution was passed by the House of Representatives to have exclusive application on Bougainville for the People of Bougainville and governed by democratically elected leaders of Bougainville for and by the people of Bougainville. These provisions have no effect to or upon the rest of Papua New Guinea. It was a deliberate decision by the people of Bougainville through their elected representatives in the House of Representative to have a system of government that was different to the rest of Papua New Guinea. It was not an oversight, a mistake, inadvertence or deliberate defiance to other laws in the country. 
  3. And having restricted application in their sphere of operation, the provisions are only relevant to the Government of Bougainville and the people of Bougainville and not to or on the rest of Papua New Guinea. They cannot, in my view, therefore contravene the National Constitution in their application and operation in Bougainville, as they do not cover the same broad spectrum of the populace throughout Papua New Guinea. That law only operates within its confined jurisdiction which is that of the Autonomous Region of Bougainville.
  4. The provisions do not deny any Bougainvillean the right to vote and stand for elective public office. All it does is prescribes a time limit as to the length of time one person can hold the office of President. That is not a denial or prohibition from exercising one’s right under s 50. There may be a time in the future when this law may be seen as a hindrance and there is a huge desire for change but not now in my respectful view when the Bougainville Constitution has not been given its full run and given the recently conducted Referendum, the Bougainville Constitution is still going through a transition process.
  5. In the words of McDermott J in SC Ref No 1 of 1984 Re Minimum Penalties Legislation [1984] PNGLR 314 at p 362:

It is not unreasonable to expect some future limitation under valid laws of these qualified rights - limitations forced by an emergency situation or limitations which from time to time become necessary and are reasonably justifiable in a democratic society.


  1. The two-term limitation for the office of President in Bougainville is not unreasonable but a reasonably justifiable one reflecting of the wishes of the majority of Bougainville who also want to exercise that right. 
  2. There is therefore no contradiction between ss 89(2) and 91(4)(f) of the Bougainville Constitution and s 50 of the National Constitution.

Let Conscience Guide the Court


  1. The bottom line is, as far as my conscience goes, where the Legislature has spoken in no uncertain terms, after full debate, both supportive and dissenting voices were heard after which the vote was taken, and the result was negative, it is not right for the Court to usurp the function of the Legislature by extending its inherent powers to judicial law-making as an indirect way of achieving an outcome that the Parliament had rejected. 
  2. Sections ss 89(2) and 91(4)(f) of the Bougainville Constitution are not prohibitive in their application. These are laws that regulate the rights of all Bougainvillean citizens under s 50 of the National Constitution. They are reasonably justifiable laws made for their purpose in a democratic society that has a proper regard for the rights and dignity of mankind. They are not unconstitutional. 
  3. My answers to the two questions in the Special Reference are as follows:
  4. Question 1: Is Section 89(2) of the Bougainville Constitution inconsistent with Section 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect?

Answer: No


  1. Question 2: Is Section 91(4)(f) of the Bougainville Constitution inconsistent with Section 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect?

Answer: No


  1. GAVARA-NANU J: The Referrer brings this Special Reference (Reference) under s 19 of the Constitution seeking this Court’s opinion on whether ss 89(2) and 91(4)(f) of the Bougainville Constitution (BC) are restrictive and are therefore in breach of or inconsistent with s. 50 of the National Constitution(Constitution).
  2. Section 50 is in these terms: 

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country,


has the right, and shall be given a reasonable opportunity—


(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.


(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.


  1. Section 89 of the Bougainville Constitution is in these terms:
    • (1) The President shall be elected by the electors of the Autonomous Region of Bougainville.
    • (2) A person shall not be elected as President on more than two occasions.
    • (3) Except as provided by Section 90 (special election of President), the election of a President shall be held as part of, and at the same time as, a Bougainville general election under Section 107 (Bougainville general elections) and for that purpose – 
      • (a) the provisions of this Constitution relating to Bougainville general elections, with the necessary modifications, apply; and
      • (b) the whole of the Autonomous Region of Bougainville is a single constituency. 
  2. Section 91 (qualifications for and disqualifications from election as President) states:
    • (1) Until a Bougainville law made by an absolute majority vote provides otherwise, a President must be not less than 40 years of age.
    • (2) A candidate for election as President must be qualified to vote in elections to the House of Representatives.
    • (3) A candidate for election as President must be a Bougainvillean.
    • (4) A person is not qualified to stand, or to continue to stand for election as President – 
      1. if he is not qualified or becomes disqualified, in accordance with Section 110 (right to vote) to vote in an election to the House of Representatives; or 
      2. he is of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or 
      1. he is under, or becomes subject to, a sentence of death or imprisonment for a period of more than three months; or 
      1. he is, or becomes disqualified from standing for election under this Constitution; or 
      2. he is, or becomes, a member of, or a candidate for election or appointment to, the National Parliament, or to the House of Representatives; or 
      3. he has already been elected as President on two occasions; or 
      4. he has been declared bankrupt by a court of competent jurisdiction, and remains bankrupt; or 
      5. he has nominated in an election to be held at the same time as a candidate for election as – 

(i) a member representing a single member constituency under Section 55(2)(b)(i) (establishment and composition of the House of Representatives); or 

(ii) a woman member to represent the interests of women under Section 55(2)(b)(ii) (establishment and composition of the House of Representatives); or

(iii) a former combatant member to represent the interests of

formercombatant members under Section 55(2)(b)(iii) (establishment and composition of the House of Representatives); or 


(i) if the election is an election for President under Section 58(5)(d) (recall of member of the House of Representatives) and the person is the person whose recall is the subject of the poll under Section 58(5)(c) (recall of member of the House of Representatives).

(5) Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. [Emphasis added]


  1. The Referrer is not one of the authorities named in s 19(3) of the Constitution, and therefore s 19(3) on its own does not confer authority or standing on the Referrer to bring this Reference. The authority of the Referrer to bring this Reference is derived from s 301 of the Constitution which declares the Referrer an authority which can bring a Special Reference under s. 19 of the Constitution. Sections 19(3) and 301 therefore have to be read together for the Referrer’s authority to bring this Reference. 
  2. Section 301 (special references to the Supreme Court) states:

The—


(a) Bougainville Legislature; and

(b) Bougainville Executive,


are authorities entitled to make application to the Supreme Court, in accordance with Section 19 (Special references to the Supreme Court), for an opinion on any question relating to the interpretation or application of any provision of a Constitutional Law including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.


  1. Section 301 is essentially a transitional provision because of Bougainville's current political status as an autonomous region, which was specifically created under the special constitutional arrangement based on the Bougainville Peace Agreement signed between the people of Bougainville and the National Government in Arawa on 30 August, 2001 and published in the National Gazette No G146 of 16 November, 2001. The Agreement also made provisions for the people of Bougainville to vote in a Referendum to decide the future political status of Bougainville viz;whether to remain as part of Papua New Guinea or be independent. That Referendum was conducted in late 2019 through a popular United Nations mandated equal suffrage vote throughout Bougainville. The result of the Referendum was that the overwhelming majority of the people of Bougainville favoured independence. The result of the Referendum is non-binding and it still has to be debated by the National Parliament. Thus, in my view until the final determination is made on the political status of Bougainville by the national Parliament, Bougainville remains part of Papua New Guinea and therefore all its laws, including the BC are subject to the laws of Papua New Guinea, including the Constitution.
  2. Under the current constitutional framework, Bougainville enjoys being autonomous, in which it has its own legislature viz; the House of Representatives (HoR) and the Public Service. The President is the head of the Bougainville Executive Council. The Office of the President is established by s 88 of the BC.
  3. The Bougainville Government has its own elections for the Members of the HoR every 5 years. There are 6 special reserve seats in the HoR, 3 are for the representatives of the ex-combatants and another 3 are for the women representatives.
  4. The President is elected by the people and pursuant to ss 89(2) and 91(4)(f) of the BC the President can only serve two terms. This is the subject of this Reference.
  5. There are two Questions posed by the Reference which this Court is asked to give its opinion on: 
    1. Is s 89(2) of the Bougainville Constitution inconsistent with s 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect? 
    2. Is s 91(4)(f) of the Bougainville Constitution inconsistent with s 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect? 
  6. From the materials before the Court, including the affidavit sworn by the President of the Autonomous Region of Bougainville, Mr John Lawrence Momis, on 17 April, 2020, it is noted that the Reference¸ hence the Questions posed by it were purportedly necessitated by or related to certain events that occurred during the sittings of the HoR in the months of January and February, 2020. Those events were related to proposed laws to amend ss 55(5)(b), 89(2) and 91(4)(f) of the BC which were moved by their proponents for debate by the HoR.
  7. The proposed law to amend s 55 (5)(b) was to allow for the reinstatement of the 3 representatives of the ex-combatants whose term as Members of the HoR had by operation of that provision (s 55 (5)(b)), expired upon the return of the writ for the Bougainville Referendum to the Governor General on 11 December, 2019
  8. The proposed law to amend s 89(2) was to allow the person who had served two terms as President to be eligible to contest the same seat again, if he so desired and not be restricted to the two terms the person had served. 
  9. The aim of the proposed law to amend s 91(4)(f), was the same as the proposed law to amend s 89(2), which was to allow the person who served two terms as President to be eligible to contest the seat again and not be restricted to the two terms the person had served. 
  10. The proposed laws to amend ss 55(5)(b) and 89(2) went through the first and second readings in the HoR. In their second readings the proposed law to amend s 89(2) failed to muster the required absolute majority of votes, thus it lapsed and failed to go through to the third reading. As to the proposed law to amend s 55(5)(b), it mustered the required absolute majority of votes, which included the votes from the 3 representatives of the ex-combatants. Thus, the proposed law went through to the third reading. 
  11. It should be noted that before the second reading was taken on the proposed law to amend s 55(5)(b), a question was raised with the Speaker whether the 3 representatives of the ex-combatants whose term as Members of the HoR had expired on 11 December, 2019 were eligible to vote on the proposed law. The Speaker ruled that they could. 
  12. When the proposed law to amend s 89(2) failed to muster the required absolute majority of votes, the proposed law to amend s 91(4)(f) was not moved by its proponent for debate by the HoR. 
  13. At the hearing of this Reference, I raised two questions with Mr Loani Henao, of counsel for the Referrer. First, whether the Questions posed by the Reference raise issues which the HoR could resolve by making necessary amendments to ss 89(2) and 91(4)(f). Second, whether the ruling by the Speaker that the 3 representatives of the ex-combatants could vote on a proposed law, was a matter which could be resolved under the Standing Orders of the HoR. 
  14. The issues relating to the proposed laws to amend ss 89(2) and 91(4)(f) of the BC and the debates on those proposed laws as well as the ruling by the Speaker on the eligibility of the 3 representatives of the ex-combatants to vote on a proposed law related to the proceedings of the HoR. Therefore there is no doubt that those issues could be resolved by necessary amendments and dealt with under appropriate Standing Orders.
  15. That said, after carefully considering the issues raised by the Questions posed by the Reference, I have come to a firm view that the Questions raise issues which turn purely on the interpretation of ss 89(2) and 91(4)(f) of the BC against s 50 of the Constitution. In my view, the Questions do not relate to or arise from the debates relating to the proposed laws to amend ss 89(2) and 91(4)(f) of the BC, by the HoR in its January and February, 2020 sittings. In other words, the Questions do not turn on those facts. In this regard I think the issues have been made unnecessarily confusing by references being made to those debates both in the Reference Book and by counsel in their submissions, especially counsel for the Referrer. In fact this is what led me to raise questions with Mr Henao. Nevertheless, I do not think a mere confusion of this kind is fatal to the Referrer, because it does not fall into the category of fatal defects mentioned in SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319and In re Reference to Constitution Section 19(1) by East Sepik Provincial Executive [2011] 2 PNGLR 126. The Questions are clear and straightforward in their terms, they are not convoluted, ambiguous, duplicitous or frivolous.  
  16. As a matter of practice, the issues could have perhaps been made a lot simpler and clearer from the beginning by the Referrer simply by giving a brief encompassing statement of the case, then posed the Questions. Such pleading would have in my opinion still clearly established the basis of the Reference. See, Special Reference by the Morobe Provincial Executive (2005) SC785.
  17. The legal issues raised by the Questions must therefore be separated from the facts relating to the debates in the HoR in January and February, 2020 regarding the proposed laws to amend ss 89(2) and 91(4)(f) of the BC. Those events are to my mind irrelevant for the purposes of deciding the legal issues raised by the Questions. 
  18. I find that the Questions raise one key legal issue which is whether ss 89(2) and 91(4)(f) of the BC, are for the purposes of s 19(1) of the Constitution,laws that restrict and prohibit rather than regulate the right conferred by s 50 of the Constitution for all citizens to have an opportunity to stand for an elective public office.
  19. Section 50 confers on every person who is of full capacity and has reached the voting age the right to, among others, stand for an elective public office and hold a public office. Section 50 prescribes its own restrictions to this right by disqualifying certain classes of people from standing for an elective public office. Those persons are named in Sub-section (1)(a) and (b), they are, a person who is under death sentence, or has been imprisoned for a period of more than nine months or has been convicted within the period of three years next preceding the first day of polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of Parliament and the person having dual citizenship of another country. These restrictions go to the character and dignity of the person, they are also aimed at protecting the integrity and dignity of the elective public office. Thus, a person caught by any of these grounds for disqualification would be disqualified from standing for an elective public office as he would justifiably restricted from exercising the right conferred by s 50 of the Constitution. 
  20. Section 50 (2) allows for the right conferred by Sub-section (1)(c), (d) and (e) viz; to stand for public office to be regulated by a law that is reasonably justiciable in a democratic society that has proper regard for the rights and dignity of mankind. 
  21. It is important to note that the law allowed by s 50(2) is to regulate and not to restrict and or prohibit the right conferred by s 50(1)(c), (d) and (e).
  22. So, the question is - Do ss 89(2) and 91(4)(f) of the BC regulate the right conferred by s 50 of the Constitution? If they do not, then they are inconsistent with s 50 of the Constitution and are unconstitutional.
  23. Section 280 of the Constitution gives allowance for the BC to be made and endorsed and the BC is to provide for the organization and structures of government for Bougainville under the autonomous arrangements. 
  24. Pursuant to s 285 of the Constitution, the BC had to be endorsed by the Head of State acting on advice from the National Executive Council. The BC then had to be published in the National Gazette before it could become operational. 
  25. Section 286 of the Constitution confers legal status on the BC as the supreme law to all “matters” falling within the jurisdiction of the Bougainville Government. Section 286 is in these terms:

286. Legal status of Bougainville Constitution.


(1) Subject to this Constitution, the Bougainville Constitution shall be the supreme law as regards matters that fall within the jurisdiction of the Bougainville Government in accordance with this Part and the Agreement, and Bougainville laws and institutions shall be consistent with the Bougainville Constitution.


(2) The Bougainville Constitution shall be enforceable—


(a) in the Supreme Court; and

(b) in the Bougainville Court established under Section 306(4)(a) (establishment of courts in Bougainville),

to the extent provided by the Bougainville Constitution.


  1. It is important to note that s 286 (1) at the outset makes the BC subject to the Constitution. Then Subsection (2)(a) provides that the BC is enforceable in the Supreme Court. This in my view, clearly makes the Constitution supreme over the BC. It is also worth noting that Subsection (1) makes the BC supreme over all “matters” but not laws, that fall within the jurisdiction of the Bougainville Government. I do not think it is an oversight that the word “law” is not mentioned in the Subsection. To my mind this is a deliberate omission because all laws of Bougainville, including the BC are subject to the supreme law of Papua New Guinea (of which Bougainville is a part), namely the Constitution. 
  2. Section 303 of the Constitution provides for qualified rights. The section is in these terms: 

Subdivision C.—Rights and Freedoms.


303. Qualifications on qualified rights.


(1) The Bougainville Constitution may make provision for the regulation or restriction by a Bougainville law which complies with the requirement of this section, of a right or freedom referred to in Subdivision III.3.C (qualified rights) where the law—


(a) regulates or restricts the right or freedom to the extent that the regulation or restriction is necessary—


(i) taking account of the National Goals and Directive Principles and the Basic Social Obligations, for the purpose of giving effect to the public interest in—

(A) public safety; or

(B) public order; or

(C) public welfare; or

(D) public health (including plant and animal health); or

(E) the protection of children and persons under disability (whether legal or practical); or

(F) the development of under-privileged or less advanced groups or areas; or


(ii) in order to protect the exercise of the rights and freedoms of others; or


(b) makes reasonable provision for cases where the exercise of one such right may conflict with the exercise of another,


to the extent that the law is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.


(2) A Bougainville law referred to in Subsection (1) shall—

(a) be expressed to be a law regulating or restricting a right or freedom referred to in Subdivision III.3.C (qualified rights); and

(b) specify the right or freedom that it regulates or restricts; and

(c) specify the purpose for which the regulation or restriction was necessary; and

(d) be made and certified in the manner provided in the Bougainville Constitution.


(3) The burden of showing that a Bougainville law is a law that complies with the requirements of this Section is on the party relying on its validity.


  1. The right to stand for an elective public office under s. 50 (1) of the Constitution is a basic and a special qualified right of all citizens, including all Bougainvilleans, who are of full capacity and of voting age. Therefore, ss. 89 (2) and 91 (4) (f) of the BC would be unconstitutional if they were to restrict and prohibit that right. 
  2. The task for the Court therefore is to decide whether ss 89 (2) and 91 (4) (f) of the BC regulate the right conferred by s 50 of the Constitution. In this regard, the Court has to decide whether ss 89 (2) and 91 (4) (f) of the BC are consistent with s 50 of the Constitution.
  3. Pursuant to s. 286 (1) of the Constitution, the power and authority of the BC derives from the Constitution, so the Constitution is the source of BC's power and authority. Without the Constitution, BC is devoid of power and authority. This is the legal position of the BC under the existing constitutional framework. Thus, the Constitution being supreme to the BC, any provisions of the BC that are inconsistent with the Constitution would be unconstitutional, including, ss 89 (2) and 91(4)(f).
  4. The phrase "subject to this Constitution" in s 286(1) of theConstitutionis key to correct and proper interpretation of ss 89(2) and 91(4)(f) of the BC. This phrase was interpreted in SC Ref No 1 of 1982, Re Phillip Bouraga [1982] PNGLR 176. The Court in that case was considering proper authorities that had power to discipline the Police Commissioner. Justice Kapi (as he then was) considered a provision of the Public Services (Interim Arrangements) Act, which appeared inconsistent with s 191(1)(b) of the Constitution. His Honour said: 

Where there is any conflict with the provisions of the Public Service (Interim Arrangements) Act on the one hand and the combined effect of s 193(3) and Sch 1.10(4) of the Constitution then the provisions of the Constitution must prevail. This is the effect of the words “subject to this Constitution”.


  1. Then in SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214 Justice Kapi (as he then was) reiterated the interpretation he gave to the phrase - "subject to this Constitution" in Bouraga. His Honour said:

Section 55 of the Constitution guarantees the equality of all citizens. We are concerned here with the equality of the right to stand for elective public office. However, the equality of all citizens on this right is qualified by the introductory words of Section 55 (1) "subject to this Constitution". I discussed the meaning of the phrase "subject to" in the recent Bouraga Reference (Unreported judgment of the Supreme Court SC225 dated 23rd March 1982).


This means that where other provision of the Constitution orlaws permitted to be made by other provisions of the Constitution which may be considered to be contradictory to the concept of equality of citizens, those provisions of the Constitution or laws permitted to be made by other provisions of the Constitution shall prevail. 


  1. The learned judge made these observations when considering the right given to every person to stand for an elective public office under s 50 of the Constitution. I respectfully adopt them.
  2. I consider that as long as Bougainville remains an autonomous region of Papua New Guinea all its laws including the BC must be read subject to the Constitution. This has also been fully acknowledged by the people of Bougainville in the Report of the Bougainville Constitutional Commission at page 91 under the Heading:

Autonomy Under the PNG Constitution Unless the Referendum Leads to Change. The Report reads:

Once it was accepted by the parties to the Bougainville peace process that, until the referendum is held, Bougainville will have special autonomous status under the BPA and the laws implementing it, then the Bougainville leaders involved in the negotiations accepted that there should be some limits on the subjects that could be dealt with in the Bougainville Constitution. Instead of being a Constitution for an independent country, it will be a Constitution for anautonomous part of PNG.


As a result, some aspects of the things that would normally be laid down in a national constitution cannot be dealt with in the Bougainville Constitution, at least for the time being. Instead,such matters will be dealt with under the PNG Constitution. That situation will only change if Bougainville becomes independent after the referendum, which must be held within 10 to 15 years after the ABG is established" (my underlining).


  1. Then at page 99, under the Heading: Meeting Internationally Accepted Standards of Good Governance-, the Report acknowledges the requirements of s 282(2) of the Constitution. The Report reads: 

The structures and procedures of the Bougainville Government shall meet internationally accepted standards ofgood governance, as they are applicable and implemented in the circumstances of Bougainville and Papua New Guinea as awhole , including democracy, the opportunity for participation by Bougainvilleans, transparency, accountability, and respect for human rights and the rule of law, including thisConstitution" (my underlining).


  1. As to the number of terms the ABG President may serve, the Report at page 177, under the Heading – Number of Terms of Officefor the President– the Report says:

The BCC determined that the best interests of Bougainville would be served by restricting the President to the two terms only (sub-clause 88 (2)). As happens in other jurisdictions (including the United States and many constitutions of African, Asian and European states) a restriction of this nature is directed towards ensuring that no one politician dominates this key post and also to ensure that a process of regeneration is provided for by requiring a fresh face at least every ten years. 


  1. This excerpt of the Report is partly reflected in ss 89(2) and 91(4)(f)of the BC, which are now under challenge by the Referrer as being unconstitutional. 
  2. Based on the earlier excerpts of the Report which I referred to and the reasons given, there is no doubt in mind that the BC has to be read subject to the Constitution, the key point in this regard is that Bougainville is part of Papua New Guinea.
  3. Section 55 of the Constitution is a general provision which states that all citizens have same rights, privileges, obligations and duties. The provision is silent on the grounds upon which the citizens may be denied these rights. Other provisions of the Constitution provide those grounds, including s 50. In such situations, s 55 must give way to those provisions.  
  4. Section 91(5) of the BC provides that nothing in Subsection (1), is intended to reduce any right conferred by s 50 (right to vote and stand for an elective public office) of the Constitution, then it goes on to say, but it is the considered opinion of the people of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly that any restrictions imposed by this section (s 91 of the BC) are reasonable and are reasonably justifiable in a democratic society having proper regard for the rights and dignity of mankind. To me, s 91(5) is another acknowledgement that the Constitution is supreme over the BC.
  5. The restrictions under ss 89(2) and 91(4)(f) of the BC must be consistent with the restrictions prescribed under s 50(1)(a) and (b) of the Constitution, for ss 89(2) and 91(4)(f) of the BC to be constitutional. If the restrictions under ss 89(2) and 91(4)(f) of the BC are inconsistent with the restrictions prescribed under s 50 (1) (a) and (b) of the Constitution then they cannot be regulatory. When one looks at the restrictions prescribed in ss 89(2) and 91(4)(f) of the BC they are clearly inconsistent with the restrictions prescribed under s 50 (1) (a) and (b) of the Constitution, thus they are not regulatory, they are restrictive and prohibitive and are therefore unconstitutional. The restrictions under ss 89(2) and 91(4)(f) of the BC are also inconsistent with s 50(2) in that they are unreasonable and are not justifiable. 
  6. The office of the President is an elective public office and as such, as long as Bougainville is part of Papua New Guinea, the process of electing the President must be consistent with s 50 of the Constitution. 
  7. The Referrer has the initial burden to simply show that ss 89(2) and 91(4)(f) of the BC are prima facie inconsistent with s. 50 of the Constitution. The Interveners who argue in the negative then have the burden to prove that ss 89(2) and 91(4)(f) of the BC are consistent with s 50 of the Constitution and are constitutional. Whilst I am satisfied that the Referrer has discharged its onus to show that ss 89 (2) and 91(4)(f) of the BC are prima facie restrictive, I am not satisfied that the Interveners arguing in the negative have discharged the onus to prove that ss 89(2) and 91(4)(f) are regulatory and are therefore consistent with s 50 of the Constitution. See, SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319 and The State v NTN Pty Ltd [1992] PNGLR 1. 
  8. It is important to note that ss 89(2) and 91(4)(f) of the BC, simply state that the person who has served two terms as President cannot stand for the same office again, they do not give any basis or reasons for those restrictions. Unlike the restrictions prescribed under s. 50 (1) (a) and (b) of the Constitution, the two provisions do not state any convincing reasons why the person cannot stand for more than two terms. To simply state that the person cannot contest the seat for the President because the person had served two terms is not a good and valid reason. When one looks at the restrictions given under s 50 (1) (a) and (b) of the Constitution, they are based on the character of the person which would justifiably disqualify the person from standing for an elective public office and holding public office. The restrictions are also aimed at protecting the image and dignity of the public office. The restrictions under ss 89(2) and 91(4)(f) of the BC are not based on the character of the person nor are they aimed at protecting the image and dignity of the Office of the President. 
  9. Whilst references have been made by the Bougainville Constitutional Commission regarding practices of other countries where a President may hold office for a limited number of terms, in my respectful opinion the Court would be making a grave error if it looked at the practices of other countries to decide the issues before it. In this instance, the Court is being asked by the Referrer to interpret and give an opinion on the provisions of the BC and the Constitution. The Court therefore cannot look outside of these two laws to answer the Questions posed by the Reference. To me, the practices of other countries would be irrelevant considerations. Ultimately, the people of Bougainville have the right to know what is being restricted and for what purpose or reason, and if there are reasons, whether those reasons are reasonable and justifiable in restricting the person from exercising his right under s. 50 to stand for an elective public office. SeeSC Ref No 5 of 1992, Re Organic Law on National Elections [1992] PNGLR 114 and The State v NTN (supra). In my view, ss 89(2) and 91(4) (f) of the BC impose unnecessary restrictions with no proper basis.
  10. The reasons given in the Bougainville Constitutional Commission Report for the person who served as President for two terms to not to stand for further terms for fear of that person becoming too powerful and or dominating and the need to have fresh faces in the office after two terms are for the reasons given are inconsistent with s 50 of the Constitution. In any event, they cannot be relied upon by this Court for two reasons. First and foremost, they are not part of or embodied in ss 89(2) and 91(4)(f) of the BC. Second, they are mere sentiments expressed by the people of Bougainville and because they have not been incorporated in ss 89(2) and 91(4)(f) of the BC, they have no legal effect and are irrelevant. This is the issue before the Court and they must be ignored. Even if they had been incorporated or embodied in ss. 89 (2) and 91(4)(f), they would for the reasons given, be restrictive and unreasonable and unjustifiable and therefore inconsistent with s 50 of the Constitution.
  11. Sections 89(2) and 91(4)(f) of the BC, are therefore not regulatory, they are restrictive and they prohibit a citizen who has served two terms as President from exercising the right conferred by s 50 of the Constitution to stand for an elective public office of the President. In my view, ss 89(2) and 91(4)(f)of the BC in this regard go beyond the power of regulation given by s 50 of the Constitution. 
  12. In SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214, Kearney DCJ in reiterating the right of every eligible citizen to stand for public office under s 50 of the Constitution said: 

So far as concerns the right to stand for public office, I consider that s 50 (1) does 2 things: first, it affirms that any eligiblecitizen may hold elective public office; second, every eligiblecitizen must be "given a reasonable opportunity" to secure suchoffice through the electoral process.Both of these may be characterized as rights of each eligible citizen; the first is his primary right; the second is an adjectival right, designed to make effective his primary right" 


(my underlining). 


  1. For the foregoing reasons, I find that ss 89(2) and 91(4)(f) of the BC are restrictive and prohibitive, they are not regulatory. The two provisions are therefore inconsistent with s 50 and are unconstitutional. 
  2. Consequently, my answers to the Questions are as follows:

(i) Question 1 - Yes.
(ii) Question 2 – Yes.


  1. CANNINGS J: Two questions of constitutional interpretation and application have been referred to the Supreme Court by the Bougainville Executive under s 19(1) (special references to the Supreme Court) of the National Constitution. The questions concern two provisions of the Bougainville Constitution, ss 89(2) and 91(4)(f), which provide that a person cannot be elected as President of the Autonomous Region of Bougainville on more than two occasions. 
  2. The questions can actually be reduced to one: are those provisions inconsistent with s 50 (right to vote and stand for public office)of the National Constitution due to them preventing a person who has been President on two occasions being re-elected as President of Bougainville? Two persons were granted leave to appear as interveners: the Speaker of the Bougainville House of Representatives, the Honourable Simon Pentanu (first intervener) and the Attorney-General of Papua New Guinea, the Honourable Davis Steven MP (second intervener). 
  3. The referrer argued that ss 89(2) and 91(4)(f) of the Bougainville Constitutionare inconsistent with s 50 of the National Constitution and should be declared unconstitutional, invalid and of no effect. The first intervener argued that the Court should decline to give an opinion as the question of operation of the BougainvilleConstitution should be left to the Bougainville House of Representatives to determine; and in the alternative, that there was no inconsistency between ss 89(2) and 91(4)(f) of the BougainvilleConstitution and s 50 of the National Constitution. The second intervener took no clear position. 

I set out my opinion in this way:


  1. The two questions are stated.
  2. The two provisions of the Bougainville Constitution are stated.
  3. Section 50 of the National Constitution is stated. 
  4. The issue of whether the Court should decline to give an opinion is addressed.
  5. Finally, the question of whether the two provisions of the Bougainville Constitution are inconsistent with the National Constitution is addressed.

1 THE QUESTIONS


  1. The questions are:
    1. Is s 89(2) of the Bougainville Constitution inconsistent with s 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect? 
    2. Is s 91(4)(f) of the Bougainville Constitution inconsistent with s 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect? 
  2. Apart from the questions being based on different provisions of the Bougainville Constitution, the wording of the questions is the same. Sections 89(2) and 91(4) are so similar in their form and effect, it is not possible to conceive of a way that questions 1 and 2 would be answered differently. That is why I think the two questions are properly regarded as one, viz:Are ss 89(2) and 91(4)(f) of the Bougainville Constitution inconsistent with s 50 of the National Constitution in that the right of a citizen to take part in the conduct of public affairs, the right to vote for and to be elected to elective public office, the right to hold public office and exercise public functions is restricted, therefore, unconstitutional, invalid and of no effect? 
    1. SECTIONS 89&91 OF THE BOUGAINVILLE CONSTITUTION
  3. It is convenient to cite the whole of ss 89 and 91, which are found in Division VI.3 (the President) of the Bougainville Constitution,and to highlight the relevant provisions, ss 89(2) and 91(4)(f).
  4. Section 89 (election of President) states:
    • (1) The President shall be elected by the electors of the Autonomous Region of Bougainville.
    • (2) A person shall not be elected as President on more than two occasions.
    • (3) Except as provided by Section 90 (special election of President), the election of a President shall be held as part of, and at the same time as, a Bougainville general election under Section 107 (Bougainville general elections) and for that purpose – 
      • (a) the provisions of this Constitution relating to Bougainville general elections, with the necessary modifications, apply; and
      • (b) the whole of the Autonomous Region of Bougainville is a single constituency.[Emphasis added]
  5. Section 91(qualifications for and disqualifications from election as President) states:
    • (1) Until a Bougainville law made by an absolute majority vote provides otherwise, a President must be not less than 40 years of age.
    • (2) A candidate for election as President must be qualified to vote in elections to the House of Representatives.
    • (3) A candidate for election as President must be a Bougainvillean.
    • (4) A person is not qualified to stand, or to continue to stand for election as President – 
      • (a) if he is not qualified or becomes disqualified, in accordance with Section 110 (right to vote) to vote in an election to the House of Representatives; or 
      • (b) he is of unsound mind within the meaning of any law relating to the person and property of persons of unsound mind; or 
      • (c) he is under, or becomes subject to, a sentence of death or imprisonment for a period of more than three months; or 
      • (d) he is, or becomes disqualified from standing for election under this Constitution; or 
      • (e) he is, or becomes, a member of, or a candidate for election or appointment to, the National Parliament, or to the House of Representatives; or 
      • (f) he has already been elected as President on two occasions; or 
      • (g) he has been declared bankrupt by a court of competent jurisdiction, and remains bankrupt; or 
      • (h) he has nominated in an election to be held at the same time as a candidate for election as – 
        • (i) a member representing a single member constituency under Section 55(2)(b)(i) (establishment and composition of the House of Representatives); or 

(ii) a woman member to represent the interests of women under Section 55(2)(b)(ii) (establishment and composition of the House of Representatives); or 

(iii) a former combatant member to represent the interests of formercombatantmembersunder Section 55(2)(b)(iii) (establishment and composition of the House of Representatives); or 


(i) if the election is an election for President under Section 58(5)(d) (recall of member of the House of Representatives) and the person is the person whose recall is the subject of the poll under Section 58(5)(c) (recall of member of the House of Representatives).

(5) Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. [Emphasis added]


3 SECTION 50 OF THE NATIONAL CONSTITUTION


  1. Section 50 (right to vote and stand for public office) is one of the human rights provisions contained in Division III.3 (Basic Rights) of the National Constitution. It states:

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country,


has the right, and shall be given a reasonable opportunity—


(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.


(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.


  1. SHOULD THE SUPREME COURT DECLINE TO GIVE AN OPINION?
  2. This issue was raised during submissions when it became apparent that the restrictions on qualification to hold the office of President imposed by ss 89(2) and 91(f)(f) are the product of an express recommendation of the Bougainville Constitutional Commission. There has in recent times been a proposal to alter these provisions which has been debated by the House of Representatives. The first intervener submitted that in these circumstances the Supreme Court should decline to give an opinion and leave the issue of qualifications for the office of President to the People of Bougainville to decide, through their elected representatives in their legislature, the House of Representatives.
  3. I respectfully reject that submission as in my view the questions raised by the Bougainville Executive are properly before the Supreme Court under s 19 of the National Constitution and none of the circumstances that would allow the Court to decline to give an opinion apply.
  4. Section 19 (special references to the Supreme Court) states:

(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.


(2) An opinion given under Subsection (1) has the same binding effect as any other decision of the Supreme Court.


(3) The following authorities only are entitled to make application under Subsection (1):—


(a) the Parliament; and

(b) the Head of State, acting with, and in accordance with, the advice of the National Executive Council; and

(c) the Law Officers of Papua New Guinea; and

(d) the Law Reform Commission; and

(e) the Ombudsman Commission; and

(ea) a Provincial Assembly or a Local-level Government; and

(eb) a provincial executive; and

(ec) a body established by a Constitutional Law or an Act of the Parliament specifically for the settlement of disputes between the National Government and Provincial Governments or Local-level Governments, or between Provincial Governments, or between Provincial Governments and Local-level Governments, or Local-level Governments; and

(f) the Speaker, in accordance with Section 137(3) (Acts of Indemnity).


(4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—


(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the Court of any question; and

(c) cases and circumstances in which the Court may decline to give an opinion.


(5) In this section, "proposed law" means a law that has been formally placed before the relevant law-making body.


  1. The questions are properly before this Court because:
  • the questions relate to interpretation and application of a provision of a Constitutional Law (viz, s 50 of the National Constitution);
  • an application has been made to the Supreme Court by an authority entitled to do so, viz the Bougainville Executive, for the Court’s opinion on such questions;
  • though the Bougainville Executive is not expressly referred to in s 19(3) as one of the authorities entitled to make an application to the Supreme Court under s 19(1), its entitlement to do so is conferred by s 301 (special references to the Supreme Court) of the National Constitution, which states:

The—


(a) Bougainville Legislature; and

(b) Bougainville Executive,


are authorities entitled to make application to the Supreme Court, in accordance with Section 19 (Special references to the Supreme Court), for an opinion on any question relating to the interpretation or application of any provision of a Constitutional Law including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.


  • the form and content of the special reference comply with Order 4 (applications and references under Constitution, Sections 18 and 19) of the Supreme Court Rules, which have been made consistently with s 19(4) of the National Constitution.
  1. The circumstances in which the Supreme Court may decline to give an opinion on questions that are properly before it are prescribed, in accordance with s 19(4)(c), by Order 4, Rule 18 of the Supreme Court Rules, which states:

The court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.


  1. In my opinion the questions are not trivial, vexatious, hypothetical or unlikely to have any relevance to the circumstances of Papua New Guinea. 
  2. A “trivial” question would be one of little value or importance. These questions are of great importance as they have a direct bearing on whether the only person who has ever been elected as President of Bougainville on two occasions – the Honourable John Lawrence Momis – is qualified to stand for election at the Bougainville general election due to be held later this year.
  3. A “vexatious” question would be one that is asked to cause annoyance or because the referrer has some ulterior and improper motive. These questions appear to be asked because of a genuine need for clarification, not for some ulterior or improper motive.
  4. A “hypothetical” question would be one asked in a factual vacuum or based on assumed facts with little connexion to a real situation. These questions – although not expressly based on the scenario surrounding Mr Momis – are based on that very real scenario and the attempts, unsuccessful so far, that have been made to have the Bougainville Constitution amended by the House of Representatives. That is explained in the ‘Circumstances’ giving rise to the special reference, set out in part 2 of the special reference. 
  5. For a question to be categorised as “unlikely to have any relevance to the circumstances of Papua New Guinea”, it would be unlikely to be of any practical relevance in the foreseeable future. The present questions are of immediate practical relevance to the question of Mr Momis’ qualification for the forthcoming presidential election, which is part of the present circumstances of Papua New Guinea.
  6. As the questions are properly before the Court and none of the circumstances in which the Court would be able to decline to give an opinion apply, the Supreme Court is obligedto give its opinion on the questions referred by the Bougainville Executive.The Court should not, and cannot properly, decline to give an opinion in the circumstances of this case. 
  7. Before leaving this issue – which pertain to the original and exclusive jurisdiction of the Supreme Court under s 18(1) of the National Constitution,as to questions relating to the interpretation or application of provisions of the Constitutional Laws – I will comment on one part of the submission made by Mr Henao, for the referrer, with which I have difficulty. 
  8. Mr Henao suggested that the Court should not decline to give an opinion as it was being asked to interpret provisions of the Bougainville Constitution, which is a Constitutional Law. I disagree. The term “Constitutional Law” is defined in Schedule 1.2(1) (meaning of certain expressions) of the National Constitution as follows:

In this Constitution or an Organic Law ... "Constitutional Law" means this Constitution, a law altering this Constitution or an Organic Law.


  1. Though Schedule 1.1(1) (application of Schedule 1) provides that “the rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws”, this is not a case of a contrary intention appearing. 
  2. Though the Bougainville Constitution has been made pursuant to the National Constitution (s 280 (Bougainville Constitution)), it does not form part of the National Constitution. It forms part of the laws of Papua New Guinea, by virtue of s 300 (Bougainville Constitution and Bougainville laws to form part of the laws of Papua New Guinea) of the National Constitution, which states:

The Bougainville Constitution and laws made by the Bougainville Legislature in accordance with the Bougainville Constitution form part of the laws of Papua New Guinea as specified in Section 9 (The Laws).


  1. Section 9 of the National Constitution states:

The laws of Papua New Guinea consist of—


(a) this Constitution; and

(b) the Organic Laws; and

(c) the Acts of the Parliament; and

(d) Emergency Regulations; and

(da) the provincial laws; and

(e) laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and

(f) the underlying law,


and none other.


  1. The Bougainville Constitution was made by the People of Bougainville in accordance with the powers and procedures prescribed by Part XIV (Bougainville Government and Bougainville Referendum) of the National Constitution (Application by Paul Tupuru (2005) N2796). It forms part of the laws of Papua New Guinea under s 9(e) of the National Constitution. Though it has the character and gravitas of a constitutional law, it does not fall into the definition of“Constitutional Law” (note capital C, capital L) provided by the National Constitution, as it is not:
    • part of the National Constitution; or 
    • a law altering the National Constitution; or
    • an Organic Law.
  2. However, the fact that the Bougainville Constitution is not a Constitutional Law has no bearing on the jurisdiction of the Supreme Court. The Court has jurisdiction, and is obliged to give its opinion on the questions referred by the Bougainville Executive, because it has been asked questions which relate to the interpretation and application of s 50 of the National Constitution, which isobviously a provision of a Constitutional Law. 
  3. ARE SECTIONS 89(2) AND 91(4)(f) OF THE BOUGAINVILLE CONSTITUTION INCONSISTENT WITH SECTION 50 OF THE NATIONAL CONSTITUTION? 
  4. The referrer has put three fundamental propositions to the Court:

(A)That the Bougainville Constitution must comply with the National Constitution. 


(B) That the Bougainville Constitution does not comply with the National Constitution,as ss 89(2) and 91(4)(f) are inconsistent with s 50 of the National Constitution. 


(C) That because of the inconsistency, ss 89(2) and 91(4)(f) of the Bougainville Constitution are unconstitutional, invalid and of no effect. 


(A) THE REFERRER’S FIRST FUNDAMENTAL PROPOSITION: THE BOUGAINVILLE CONSTITUTION MUST COMPLY WITH THE NATIONAL CONSTITUTION


  1. I uphold this proposition. Though the Bougainville Constitution provides in s 206(2) that it is “the Supreme Law of Bougainville”, that does not mean that it can,or is intended to,override the National Constitution. 
  2. Section 206 (supremacy of the Constitution) of the Bougainville Constitution states:
    • (1) Until any change in the status of Bougainville that may occur following the Bougainville Referendum, the National Constitution, National Constitutional Laws and National laws are valid and effective in Bougainville as provided in the Bougainville Peace Agreement as implemented in Part XIV (Peace-Building in Bougainville – Autonomous Bougainville Government and Bougainville Referendum) of the National Constitution. 
    • (2) Subject to Subsection (1), this Constitution is the Supreme Law of Bougainville and subject to Section 213 (construction of Bougainvillean laws), all Bougainville laws and all acts (whether legislative, executive or judicial) that aer inconsistent with it are, to the extent of the inconsistency, invalid and ineffective.
    • (3) The provisions of this Constitution are self-executing as far as their respective subject matters allow. 
  3. The Bougainville Constitution must be interpreted and applied subject to the National Constitution. This is made clear by s 213 (construction of Bougainvillean laws) of the Bougainville Constitution, which states:

Until any change in the status of Bougainville that may occur following the Bougainville Referendum, it is hereby declared that –


(a) this Constitution shall be read and construed subject to the National Constitutional Laws; and

(b) the Bougainville laws shall be made under this Constitution and shall be read and construed subject to this Constitution, and where a Bougainville law exceeds the authority of this Constitution – 


(i) to the extent that it exceeds the authority of this Constitution – it is invalid; and

(ii) to the extent that it does not exceed the authority of this Constitution – it is valid.


  1. Section 213(a) of the Bougainville Constitution reinforces the general principlesof constitutional interpretation and application arising from ss 10 and 11 of the National Constitution that:
  • all written laws must be read and construed subject to the National Constitution;
  • the National Constitution and the Organic Laws are the Supreme Law of the whole of Papua New Guinea, including in the Autonomous Region of Bougainville; 
  • all acts (whether legislative, executive or judicial) that are inconsistent with the National Constitution or the Organic Laws are, to the extent of the inconsistency, invalid and ineffective. 
  1. Section 10 (construction of written laws) of the National Constitution states:

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


(a) in any case—this Constitution; and

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

(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,


and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.


  1. Section 11 (Constitution etc as Supreme Law) of the National Constitution states:

(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.


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


  1. The proposition that the Bougainville Constitution must comply with the National Constitution is incontrovertible. 

(B) THE REFERRER’S SECOND FUNDAMENTAL PROPOSITION: THE BOUGAINVILLE CONSTITUTION IS INCONSISTENT WITH THE NATIONAL CONSTITUTION


  1. The referrer argues that ss 89(2) and 91(4)(f) of the Bougainville Constitution are inconsistent with s 50 of the National Constitution as those provisions prohibit the free exercise of rights conferred by s 50.

Status of s 50 rights


  1. The rights conferred by s 50 are an integral part of the bundle of Basic Rights, also known as human rights, conferred by and enforceable through Division III.3 (basic rights) of the National Constitution, consisting of:
    1. right to freedom (s 32);
    2. right to life (s 35);
    3. protection from inhuman treatment (s 36);
    4. protection of the law (s 37);
    5. proscribed acts (s 41);
    6. liberty of the person (s 42);
    7. freedom from forced labour (s 43);
    8. freedom from arbitrary search and entry (s 44);
    9. freedom of conscience, thought and religion (s 45);
    10. freedom of expression (s 46);
    11. freedom of assembly and association (s 47);
    12. freedom of employment (s 48);
    13. right to privacy (s 49);
    14. right to vote and stand for public office (s 50);
    15. right to freedom of information (s 51);
    16. right to freedom of movement (s 52);
    17. protection from unjust deprivation of property (s 53);
    18. equality of citizens (s 55).

(See Re Release of Prisoners on Licence (2008) N3421; Re Alleged Brutal Treatment of Suspects (2014) N5512; Re Human Rights of Prisoners Sentenced to Death (2017) N6939.)


Rights conferred by s 50 of the National Constitution apply in Bougainville 


  1. It is uncontentious that the Basic Rights in Division III.2 of the National Constitution, including those conferred by s 50, apply in Bougainville. Both the National Constitution and the Bougainville Constitution acknowledge that the Bougainville Constitution may provide rights in addition to those guaranteed by the National Constitution, but cannot remove rights guaranteed by the National Constitution. 
  2. Section 304 (guaranteed rights and freedoms) of the National Constitution states:
    • (1) Subject to Subsection (3), the Bougainville Constitution may make provision for guarantees in Bougainville of basic and qualified rights in addition to those otherwise guaranteed in this Constitution.

(2) Subject to Subsection (3), the Bougainville Constitution may make provision for the establishment of procedures, institutions or courts to ensure the enforcement of guaranteed rights and freedoms.


(3) Guarantees provided for under Subsection (1) and procedures established under Subsection (2) shall not abrogate the guaranteed rights and freedoms or procedures to ensure their enforcement provided for in this Constitution.


  1. Sections 178 (basic rights) and 179 (additional rights), which are contained in Part XIV (human rights) of the Bougainville Constitution, state:

178: The basic rights set out in Division III.3 (basic rights) of the National Constitution apply in the Autonomous Region of Bougainville.


179: Provision may be made in this Constitution at any time for the guarantee of rights and freedoms available to all citizens of Papua New Guinea in the Autonomous Region of Bougainville additional to the basic rights referred to in s 178 (basic rights).


Section 50 rights not absolute


  1. Like all the human rights provisions in the National Constitution (including those conferring fundamental rights, viz the right to life (s 35), the right to freedom from inhuman treatment (s 36) and the right to full protection of the law (s 37)), s 50 does not confer absolute rights. All human rights are qualified in some way. 
  2. Section 50 confers on certain persons, certain rights, and provides for limitations on the exercise of those rights. It will be recalled that s 50 states:

(1) Subject to the express limitations imposed by this Constitution, every citizen who is of full capacity and has reached voting age, other than a person who—


(a) is under sentence of death or imprisonment for a period of more than nine months; or

(b) has been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections that is prescribed by an Organic Law or an Act of the Parliament for the purposes of this paragraph; or

(ba) has dual citizenship of another country,


has the right, and shall be given a reasonable opportunity—


(c) to take part in the conduct of public affairs, either directly or through freely chosen representatives; and

(d) to vote for, and to be elected to, elective public office at genuine, periodic, free elections; and

(e) to hold public office and to exercise public functions.


(2) The exercise of those rights may be regulated by a law that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.


Certain persons (the ‘holders’ of s 50 rights)


  1. The rights conferred by s 50 are conferred only on persons who have all the following characteristics (prescribed by ss 50(1)(a), (b) and (c)):
  • is a PNG citizen;
  • is of full capacity (ie he or she is not of unsound mind, as per Schedule 1.2(1) of the National Constitution); 
  • has reached voting age (which is 18 years of age, per s 126(3) (elections) of the National Constitution); 
  • is not under sentence of death;
  • is not under a sentence of imprisonment for a period of more than nine months;
  • has not been convicted, within the period of three years next preceding the first day of the polling period for the election concerned, of an offence relating to elections (that is prescribed by an Organic Law or an Act of the Parliament for the purposes s 50(1)(b));
  • does not have dual citizenship of another country.

Certain rights


  1. The persons who hold s 50 rights have the following rights under ss 50(1)(c), (d) and (e):
    • to directly take part in the conduct of public affairs; and
    • to take part in the conduct of public affairs through freely chosen representatives; and
    • to vote for elective public office at genuine, periodic, free elections; and
    • to be elected to elective public office at genuine, periodic, free elections;
    • to hold public office; and
    • to exercise public functions; and
    • to be given a reasonable opportunity to exercise all those rights.

Limitations on exercise of s 50 rights


  1. Section 50(2) provides that the exercise by holders of s 50(1) rights of those rights:
    • is subject to any express limitations provided by the National Constitution; and 
    • may be regulated by a law that “is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind”.

Referrer’s argument


  1. The referrer’s argumentis that the exercise by the holders of s 50 rights, in the case of any person who has already been elected as President of Bougainville on two occasions, of the rights:
    • to be elected to that elective public office; and 
    • to hold that public office; and 
    • to exercise the public functions of that office; and
    • to be given a reasonable opportunity to exercise those particular rights,

is prohibited by ss 89(2) and 91(4)(f) of the Bougainville Constitution. 


  1. The referrer’s alternative argument, as I understand it, in the event that the prohibition argument does not find favour with the Court, is that ss 89(2) and 91(4)(f) of the Bougainville Constitution regulate and restrict the rights of persons who have already been elected as President of Bougainville on two occasions and those provisions are not ‘reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind’. 
  2. Two issues therefore arise. First, do ss 89(2) and 91(4)(f) of the Bougainville Constitution prohibit the exercise of s 50 National Constitution rights? Secondly, if no, do they regulate s 50 rights in a way that is not ‘reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind’? 

Do ss 89(2) and 91(4)(f) of the Bougainville Constitution prohibit the exercise of s 50 National Constitution rights? 


  1. It is permissible for the Bougainville Constitution to regulate the exercise of s 50 rights, provided it does not amount to a prohibition of the exercise of those rights (and meets the ‘reasonably justifiable’ test). This is made clear by Schedule 1.20 (regulation of acts etc) of the National Constitution, which states:

A provision of a Constitutional Law that provides for the regulation of an act or thing does not extend to prohibition, whether in law or in effect.


  1. There have been five cases, summarised in the following table, in which the Supreme Court has struck down various laws as unconstitutional, because the laws prohibited the exercise of s 50 rights. 

CASES IN WHICH SUPREME COURT HAS STRUCK DOWN LAWS AS UNCONSTITUTIONAL FOR PROHIBITING EXERCISE 
OF RIGHTS UNDER SECTION 50 OF THE NATIONAL CONSTITUTION 


No
Case Held 
1
SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment Act, 1981 [1982] PNGLR 214

Kidu CJ, Kearney DCJ, Greville Smith J, Andrew J, Kapi J
The Organic Law on National Elections (Amendment) Act 1981, which increased the nomination fee for contesting the 1982 general election from K100.00 to K1,000.00, having regard to proven facts as to a substantial proportion of the population not being in receipt of any cash income and the low average income of all persons in the country, would effectively prohibit all but a relative few of eligible citizens from standing for election. The law prohibited, not merely regulated, the exercise of s 50 rights. It was inconsistent with s 50 and therefore unconstitutional.
2
SC Ref No 2 of 1984, Re New Ireland Provincial Constitution
[1984] PNGLR 81

Kidu CJ, Kapi DCJ, McDermott J
Section 18(1)(h) of the New Ireland Provincial Constitution, which provided that “Nobody can become or remain either an elected or appointed member of the Assembly if he fails ... within 60 days of being required to do so, to make the disclosures required by s 19(a)” has the effect of totally prohibiting those in breach of s 19(a) from ever standing again for the New Ireland Provincial Assembly. The law provided for a total, lifelong prohibition of rights, contrary to s 50 of the National Constitution, and was therefore unconstitutional. 
3
In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition 
(2001) SC678

Amet CJ, Injia J, Sawong J
The National Capital District Commission (Amendment) Act 2001, which abolished all (except Chairman of Motu Koitabu Council) ex officio positions, including those of members of the National Parliament for National Capital District Commission electorates, and replaced the 18-member Commission with a six-member Commission, five of whom would be appointed by the Governor-General, on the advice of the National Executive Council, prohibited the continued exercise by all NCD members of Parliament of their s 50(1)(d), (e) and (f) rights to take part, in respect of the NCDC, in the conduct of public affairs, to be elected to elective public office, to hold public office and to exercise public functions. As it prohibited the exercise of s 50 rights it was unconstitutional. 
4
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319

Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J
The Organic Law on the Integrity of Political Parties and Candidates, to the extent that it required a member of the National Parliament who was an endorsed candidate of a registered political party at the election that resulted in his or her election, to vote only in accordance with a resolution of the members of the parliamentary wing of their party on (i) votes of no confidence in the Prime Minister, the Ministry or a Minister, (ii) a vote for election of the Prime Minister after a general election, (iii) a vote for approval of the National Budget, and (iv) a vote to enact or repeal a Constitutional Law, prohibited exercise of the right of members of Parliament to exercise public functions under s 50(1)(e), and was therefore unconstitutional.
5
SC Ref Nos 1 & 2 of 2012, Re the Prime Minister and National Executive Council Act Amendments 
[2012] 1 PNGLR 74

Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J
Per Injia CJ, Kirriwom J and Gavara-Nanu J (Salika DCJ and Sakora J declining to give an opinion): The amendment to the Prime Minister and National Executive Council Act2002, which introduced a maximum age of 72 years for a member of Parliament to hold the office of Prime Minister, was a prohibition of the exercise by an elected member of Parliament of the right in s 50(1)(e) to hold elective public office as Prime Minister, and was therefore unconstitutional.


  1. In my opinion, the operation of ss 89(2) and 91(4)(f) of the Bougainville Constitution can be distinguished from each of the laws ruled unconstitutional in the above cases, as:
    • the provisions are of very limited operation;
    • the provisions are only triggered in the case of a person who has already been elected as President of Bougainville on two occasions; 
    • the provisions do not prevent a person who is otherwise qualified to hold office as President of Bougainville from exercising all the other rights conferred by s 50(1)(c), (d) and (e) of the National Constitution. 
  2. I uphold the referrer’s argument that ss 89(2) and 91(4)(f) of the Bougainville Constitution are a curtailment, in the case of the very limited category of persons who are affected by those provisions (in fact, only one person is presently affected by them: the Honourable John Lawrence Momis) on the exercise of s 50 National Constitution rights. However, the nature and extent of the curtailment are not so extensive as to amount to prohibition of the exercise of s 50 rights. The issue therefore becomes whether ss 89(2) and 91(4)(f) of the Bougainville Constitution provide for a regulation of s 50 rights, which is not reasonably justifiable etc.

Do ss 89(2) and 91(4)(f) of the Bougainville Constitution regulate the exercise of s 50 National Constitution rights in a way that is not reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind?


  1. It is clear that ss 89(2) and 91(4)(f) of the Bougainville Constitution regulate the exercise by a very limited class of persons of their rights under ss 50(1)(d) and (e) of the National Constitution to be elected to the elective public office of President of Bougainville and to hold that public office and to exercise public functions in that capacity. The question is whether those provisions of the Bougainville Constitution are reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind.
  2. The referrer argues that ss 89(2) and 91(4)(f) are not reasonably justifiable. The first intervener, in his contention alternative to his primary argument that the Court should decline to give an opinion, argues that those provisions are reasonably justifiable. 
  3. In determining the issue of reasonable justifiability it is necessary to refer to s 39 (“reasonably justifiable in a democratic society”, etc) of the National Constitution, which states:

(1) The question, whether a law or act is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, is to be determined in the light of the circumstances obtaining at the time when the decision on the question is made.


(2) A law shall not be declared not to be reasonably justifiable in a society having a proper regard for the rights and dignity of mankind except by the Supreme Court or the National Court, or any other court prescribed for the purpose by or under an Act of the Parliament, and unless the court is satisfied that the law was never so justifiable such a declaration operates as a repeal of the law as at the date of the declaration.


(3) For the purposes of determining whether or not any law, matter or thing is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind, a court may have regard to—


(a) the provisions of this Constitution generally, and especially the National Goals and Directive Principles and the Basic Social Obligations; and

(b) the Charter of the United Nations; and

(c) the Universal Declaration of Human Rights and any other declaration, recommendation or decision of the General Assembly of the United Nations concerning human rights and fundamental freedoms; and

(d) the European Convention for the Protection of Human Rights and Fundamental Freedoms and the Protocols thereto, and any other international conventions, agreements or declarations concerning human rights and fundamental freedoms; and

(e) judgements, reports and opinions of the International Court of Justice, the European Commission of Human Rights, the European Court of Human Rights and other international courts and tribunals dealing with human rights and fundamental freedoms; and

(f) previous laws, practices and judicial decisions and opinions in the country; and

(g) laws, practices and judicial decisions and opinions in other countries; and

(h) the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974, as affected by decisions of that House on the report and by decisions of the Constituent Assembly on the draft of this Constitution; and

(i) declarations by the International Commission of Jurists and other similar organizations; and

(j) any other material that the court considers relevant.


  1. It is also useful to check how the issue of reasonable justifiability has been determined in previous cases, summarised in the following table.

CASES IN WHICH SUPREME COURT HAS DETERMINED WHETHER A LAW IS REASONABLY JUSTIFIABLE IN A DEMOCRATIC SOCIETY HAVING A PROPER RESPECT FOR RIGHTS AND DIGNITY OF MANKIND 


No
Case Held 
1
SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment Act, 1981 [1982] PNGLR 214

Kidu CJ, Kearney DCJ, Greville Smith J, Andrew J, Kapi J
Per Kidu CJ, Kearney DCJ, Greville Smith J and Andrew J (Kapi J not deciding): The Organic Law on National Elections (Amendment) Act 1981, which increased the nomination fee for contesting the 1982 general election from K100.00 to K1,000.00, having regard to proven facts as to a substantial proportion of the population not being in receipt of any cash income and the low average income of all persons in the country, and the manifest emphasis in the National Constitution on free and equal participation by citizens in the election process, was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.
2
SC Ref No 1 of 1986, Re Vagrancy Act
[1988] PNGLR 1

Kidu CJ, Amet J,

Woods J, Cory J, Barnett J
Per Kidu CJ, Amet J, Cory J and Barnett J (Woods J not deciding): the exclusion orders provided for by s 3 of the Vagrancy Act (Chapter No 268) restricted the right to freedom of movement guaranteed by s 52 of the National Constitution and the State failed to discharge the onus of proving that such exclusion orders were reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.

3
The State v NTN Pty Ltd [1992] PNGLR 1

Kidu CJ, Kapi DCJ, Amet J, Woods J, Barnett J
Per Amet J, Woods J and Barnett J (Kidu CJ and Kapi DCJ dissenting on this point): the Television (Prohibition and Control) Act 1986, which prohibited commencement of television broadcasting in PNG until 31 January 1988, contrary to agreements between the State and television broadcasters (which allowed a much earlier commencement date) wasreasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. 

However, because the Act regulated and restricted the broadcasters’ rights to freedom of expression and publication under s 46 of the National Constitution, it had to, by dint of s 46,comply with the manner and form requirements of s 38 of the National Constitution. It failed to comply, therefore the Act was unconstitutional. 
4
In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition 
(2001) SC678

Amet CJ, Injia J, Sawong J
Per Amet CJ and Injia J (Sawong J not deciding): The National Capital District Commission (Amendment) Act 2001, which abolished all (except Chairman of Motu Koitabu Council) ex officio positions, including those of members of the National Parliament for National Capital District Commission electorates, and replaced the 18-member Commission with a six-member Commission, five of whom would be appointed by the Governor-General, on the advice of the National Executive Council, was not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, and was therefore in breach of s 50(2) of the National Constitution, rendering it invalid and ineffective. 

5
SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319

Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J
By the Court: The Organic Law on the Integrity of Political Parties and Candidates, to the extent that it required a member of the National Parliament who was an endorsed candidate of a registered political party at the election that resulted in his or her election, to vote only in accordance with a resolution of the members of the parliamentary wing of their party on (i) votes of no confidence in the Prime Minister, the Ministry or a Minister, (ii) a vote for election of the Prime Minister after a general election, (iii) a vote for approval of the National Budget, and (iv) a vote to enact or repeal a Constitutional Law, was a law not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind. and therefore in breach of s 50(2) of the National Constitution, rendering it invalid and ineffective. 

6
SC Ref Nos 1 & 2 of 2012, Re the Prime Minister and National Executive Council Act Amendments 
[2012] 1 PNGLR 74

Injia CJ, Salika DCJ, Sakora J, Kirriwom J, Gavara-Nanu J
Per Injia CJ, Kirriwom J and Gavara-Nanu J (Salika DCJ and Sakora J declining to give an opinion): The amendment to the Prime Minister and National Executive Council Act 2002, which introduced a maximum age of 72 years for a member of Parliament to hold the office of Prime Minister, was a law not reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, and therefore in breach of s 50(2) of the National Constitution,rendering it invalid and ineffective. 

7
Namah v Pato 
(2016) SC1497

Salika DCJ, Kandakasi J, Kariko J, Sawong J, 
Higgins J
Per Salika DCJ, Kandakasi J, Kariko J and Sawong J (Higgins J not deciding this point): Section 1 of the Constitution Amendment (No37) (Citizenship) Law 2014, which added to the list of circumstances, prescribed by s 42(1) of the National Constitution, in which persons may be deprived of their personal liberty, a new paragraph (ga) – “for the purposes of holding a foreign national under arrangements made by Papua New Guinea with another country or with an international organisation that the Minister responsible for immigration matters, in his absolute discretion, approves" – was notreasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind, and was therefore unconstitutional.


Principles to apply in determining the question of reasonable justifiability


  1. When the express requirements of s 39 of the National Constitution are read together with dicta of the Supreme Court in the above cases, the following principles emerge as to how the critical question, ‘are ss 89(2) and 91(4)(f) of the Bougainville Constitution laws that are reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind?’, is to be determined:
    • the question is to be determined in the light of the circumstances obtaining at the time when the question is being decided (National Constitution, s 39(1));
    • the test is an objective one in that the question whether the law is reasonably justifiable etc is asked of the reasonable person(SC Ref No 2 of 1982, Re Organic Law on National Elections(Amendment) Act 1981 [1982] PNGLR 214); 
    • the party questioning the constitutional validity of a law on the ground that it is not reasonably justifiable etc must establish a prima facie case, and if such a case is established the onus shifts to the party asserting the law’s validity to satisfy the Court that the law is reasonably justifiable etc(SC Ref No 2 of 1982, Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214); 
    • the Court is not bound by the assessment of the Parliament or other legislative body that made the contentious law that the law is reasonably justifiable, rather the Court must make its own independent assessment of the question of reasonably justifiability (Namah v Pato (2016) SC1497); 
    • evidence as to the factual circumstances at the time the law was made will be relevant to understanding why the law was made and the assessment of its reasonably justifiability(SC Ref No 1 of 2010, Re Organic Law on the Integrity of Political Parties & Candidates [2010] 2 PNGLR 319); 
    • the Court has discretion, but is not obliged, to have regard to the matters set out in s 39(3) of the National Constitution (National Constitution, s 39(3)). 

Application of principles 


  1. I now apply those principles to this case. I am satisfied that the referrer has established a prima facie case that ss 89(2) and 91(4)(f) of the Bougainville Constitution are not reasonably justifiable, having regard to the fact that they will directly curtail the exercise by persons who would otherwise be qualified to be elected President of Bougainville of the rights under s 50(1)(c), (d) and (e)of the National Constitution to take part in the conduct of public affairs as the holder of that office, to be elected to that elective public office and to hold that public office and to exercise the public functions of that office. 
  2. The onus of satisfying the Court that those laws are reasonably justifiable therefore shifts to the party asserting the constitutional validity of those laws, which is the first intervener, the Speaker of the House of Representatives. I leave the second intervener, the Attorney-General of Papua New Guinea, out of the picture at this stage as the oral submissions made on his behalf by Solicitor-General, Mr Tanuvasa (which seemed supportive of the first intervener) were the opposite of the written submissions filed on his behalf prior to the hearing of the reference (which supported the referrer’s contention that ss 89(2) and 91(4)(f) of the Bougainville Constitution were unconstitutional). This meant that no clear position was put to the Court. 
  3. Having given careful consideration to the competing submissions, and assessed the question of reasonable justifiability in the modern-day context, with the next presidential election due in a little over a month from now, and from an objective standpoint of the reasonable person (more particularly here, the reasonable Bougainvillean), making my own independent, judicial assessment of the question, and taking into account the evidence before the Court of the factual circumstances (evident from the report of the Bougainville Constitutional Commission)existing when the laws were made (in 2004), and being guided by the matters set out in s 39(3) of the National Constitution, I am persuaded by the arguments made capably by Mr Sheppard for the Speaker of the House of Representatives, that ss 89(2) and 91(4)(f) of the Bougainville Constitution are reasonably justifiable.
  4. The following factors are those I consider most pertinent:

1 The regulation of s 50(1) National Constitution rights affects a very limited class of persons, viz those persons who have already been elected as President of Bougainville on two occasions.


2In fact only one person who would otherwise be qualified to be elected as President is presently affected by the regulation or restriction of such rights, viz the Honourable John Lawrence Momis. 


3The two-term limit has been in the Bougainville Constitution from the beginning, as an integral part of the system of government opted for by the People of Bougainville, and this is a fact that weighs in favour of it being regarded as a reasonable regulation of a right, as distinct from being a legislative change introduced arbitrarily for political expediency to target a political rival (such as in In the Matter of s 18(1) of the Constitution and the Honourable Bill Skate MP, Leader of the Opposition (2001) SC678, where the target of legislative changewas the Honourable Bill Skate,and in SC Ref Nos 1 & 2 of 2012, Re the Prime Minister and National Executive Council Act Amendments [2012] 1 PNGLR 74, where the target of legislative change was the Right Honourable Sir Michael Somare). 


4The sort of regulation imposed by ss 89(2) and 91(4)(f) – limiting the holding of office of President to two terms – is unremarkable and similar to the limitation in other presidential systems of government, most notably in the United States of America. 


5The limitation of terms was a specific recommendation of the Bougainville Constitutional Commission, which in its final report, in the chapter on the Bougainville Executive, at page 177, stated:


The Bougainville Constitutional Commission determined that the best interests of Bougainville would be served restricting the President to two terms only ... As happens in other jurisdictions (including the United States and many constitutions of African, Asian and European states) a restriction of this nature is directed towards ensuring that no one politician dominates this key post and also to ensure that a process of regeneration is provided for by requiring a fresh face at least every ten years. 


6The People of Bougainville have reinforced their opinion that thetwo-term limit is a reasonably justifiable limitation on human rights by s 91(5) of the Bougainville Constitution, which states:


Nothing in Subsection (1) is intended to reduce any right conferred by Section 50 (right to vote and stand for public office) of the National Constitution, but it is the considered opinion of the People of Bougainville expressed through the Bougainville Constitutional Commission and the Bougainville Constituent Assembly, that any restrictions imposed by this section are reasonable and are reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind.


That statement of opinion applies not only to the age restriction in s 91(1) (that the President must be not less than 40 years of age) but to all restrictions or qualifications imposed by s 91 (including the two-term restriction). Though it is not binding on the Court it is a significant expression of opinion by the People of Bougainville, which supports the objective assessment of the two-term limit as a reasonably justifiable regulation of Section 50(1) National Constitution rights.


7The two-term limit is not the only restriction on the exercise of s 50(1) National Constitution rights imposed by s 91 of the Bougainville Constitution, additional to those imposed by s 50(1) itself. Others include:


  • that the President be not less than 40 years of age (15 years older than the minimum age for a member of the National Parliament, as per s 103(1) of the National Constitution); 
  • that a candidate for election as President:
➢ be a Bougainvillean (as defined by s 7 (Bougainvillean) of the Bougainville Constitution), 
➢ not be subject to a sentence of imprisonment of more than three months (six months less than the requirement in s 50(1)(a) of the National Constitution of nine-months imprisonment), 
➢ not be disqualified under the Bougainville Constitution, 
➢ not be a candidate for election to the National Parliament or the House of Representatives; and 
➢ not be a bankrupt. 
  1. Each of these restrictions, considered alone or in combination with each other, amount – just as does the restriction imposed by the two-term limit –in my view to a reasonably justifiable regulation of the s 50(1) National Constitution rights to take part in the conduct of public affairs as President of Bougainville, to be elected to that office, to hold that office and to exercise public functions in that capacity. 

Summing up reasonable justifiability


  1. I am satisfied that the two-term limit imposed by ss 89(2) and 91(4)(f) of the Bougainville Constitution constitutes a regulation of Section 50(1) National Constitution rights that is reasonably justifiable for the purpose in a democratic society that has a proper regard for the rights and dignity of mankind. 

Determination of referrer’s second fundamental proposition


  1. The second fundamental proposition was that ss 89(2) and 91(4)(f) of the Bougainville Constitution are inconsistent with the National Constitution. I reject that proposition as I have determined that the two-term limit imposed by those provisions is a reasonably justifiable regulation of the rights of all PNG citizens under s 50(1) of the National Constitution. There is no inconsistency between ss 89(2) and 91(4)(f) of the Bougainville Constitution and s 50 of the National Constitution. 

(C) THE REFERRER’S THIRD FUNDAMENTAL PROPOSITION: SECTIONS 89(2) AND 91(4)(f) OF THE BOUGAINVILLE CONSTITUTION ARE UNCONSTITUTIONAL, INVALID AND OF NO EFFECT


  1. I reject this proposition as it based on the alleged inconsistency between ss 89(2) and 91(4)(f) of the Bougainville Constitution and s 50 of the National Constitution, and I have found that there is none. 

CONCLUSION 


  1. The referrer has failed to demonstrate any inconsistency between ss 89(2) and 91(4)(f) of the Bougainville Constitution and s 50 of the National Constitution. The two questions constituting the reference to the Supreme Court, should in my opinion be answered as follows:
    1. Is s 89(2) of the Bougainville Constitution inconsistent with s 50 of the National Constitution, and therefore, unconstitutional, invalid and of no effect? No. 
    2. Is s 91(4)(f) of the Bougainville Constitution inconsistent with s 50 of the National Constitution, and therefore, unconstitutional, invalid and of no effect? No. 
  2. As to costs, as each of the parties is a public office-holder and a leader who has engaged in constitutional litigation of great public importance, in a proper and dignified manner, I would order that the parties bear their own costs. 
  3. BY THE COURT: We summarise the answers to the two questions and determine the proceedings by making the following order of the Supreme Court.
  4. The questions referred to the Supreme Court are answered as follows:
No Question
Salika 
CJ
Kandakasi
DCJ
Kirriwom J
Gavara-Nanu J
Cannings 
J
Majority opinion
1Is s 89(2) of the Bougainville Constitution, inconsistent with s 50 of the National Constitution? 
No
No
No
Yes
No
No
2Is s 91(4)(f) of the Bougainville Constitution, inconsistent with s 50 of the National Constitution? 
No
No
No 
Yes
No
No


  1. It is declared for the purposes of ss 19(1) and 19(2) of the National Constitution that ss 89(2) and 91(4)(f) of the Bougainville Constitution are not unconstitutional, invalid and/or ineffective. 
  2. Theparties shall bear their own costs of the proceedings. 

____________________________________________________________
Henaos Lawyers: Lawyer for the Referrer 
Young & Williams Lawyers:  Lawyer for the First Intervener 
Solicitor-General:  Lawyer for the Second Intervener

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