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Published online by Cambridge University Press: 24 January 2025
In the latter half of 1979 the Supreme Court of Papua New Guinea delivered judgment in two cases in which it was called upon to decide a number of issues of fundamental significance to the interpretation of that country’s Constitution. In the course of this litigation, several of the Justices of the Court became embroiled in confrontation with the Government. The potential for such conflict had been foreseen by the makers of the Constitution, who took the view that conflict would be ameliorated if the Court adopted an autochthonous interpretation based on the social philosophy of the Constitution and on its legislative history. This article surveys the legal issues raised in these cases and evaluates the modes of interpretation employed by the Court by contrasting an “absolutist” with a “purposive” mode, with the latter expressing the intention of the Constitution’s makers. It concludes that for the most part the Court adopted the absolutist mode, and that thereby the autochthonous nature of the Constitution has been undermined.
page 121 note 1 The Constitution of the Independent State of Papua New Guinea is its full title, but is referred to in this text as the Constitution. A general commentary is Goldring, The Constitution of Papua New Guinea (1978).
2 Unreported (Supreme Court case no. 160, 3 September 1979).
3 Unreported (Supreme Court case no. 163, 11 September 1979).
4 The National Court is a superior court of record and of unlimited jurisdiction (Constitution, ss. 163, 166), and when sitting normally comprises a single Justice; the Supreme Court is the final court of appeal, and when sitting normally comprises three or five Supreme Court Justices. To date, all Justices of the National Court have been appointed to the Supreme Court.
5 Infra p. 131.
6 Infra p. 151.
7 Prentice C.J., Raine Deputy C.J., Saldanha and Andrew JJ. in the majority; Wilson J. dissenting.
8 Raine Deputy C.J., Saldanha, Wilson and Greville-Smith JJ. in the majority; Kearney J. dissenting.
9 E.g. Lane, , The Australian Federal System (2nd ed. 1979) 1175-1205Google Scholar concerning the Constitution of the Commonwealth of Australia, and Ducat, Modes of Constitutional Interpretation (1978) passim concerning the Constitution of the United States of America.
10 Lane, op. cit. 1182-1184.
11 Ducat, op. cit. 117.
12 See the judgments in Western Australia v. The Commonwealth (1975) 134 C.L.R. 201.
13 Lane, op. cit. 1188.
14 See Bayne, and Colebatch, , Constitutional Development in Papua New Guinea, 1968-1973, New Guinea Research Unit Bulletin no. 51 (1973) 123-129.Google Scholar
15 Final Report of the Constitutional Planning Committee (1974), published by the Government Printer, Port Moresby, Papua New Guinea.
16 A concept that owes much to Wheare, Constitutional Structure of the Commonwealth (1960) ch. 4.
17 Final Report of the Constitutional Planning Committee (1974) 15/2. This recommendation was implemented by Schedule 2.6 of the Constitution. See Lynch, , “The Adoption of an Underlying Law by the Constitution of Papua New Guinea” (1976) 4 Melanesian Law Journal 37.Google Scholar
18 Id. 2/1.
19 Id. 2/14.
20 Id. 2/13.
21 Ibid.
22 Although the Supreme Court Justices have in a number of cases referred to separation of powers as an element of the Constitution, there has not yet been a full analysis of how this theory should bear on interpretation. The case which goes furthest in this direction is In the Matter of a Reference by the Ombudsman Commission pursuant to Section 19 of the Constitution, unreported (Supreme Court case no. 136, 6 October 1978), in which there were sharp differences of opinion about the significance to be attached to s. 99(2).
23 See De Smith, , “Westminster’s Export Models: The Legal Framework of Responsible Government” (1961) Journal of Commonwealth Political Studies 2.Google Scholar
24 S. 11(1).
25 Ss. 18 and 57.
26 See Campbell, , “Papua New Guinea Government: Consideration of a Bill of Rights” in Young (ed.), Constitutional Development in Papua New Guinea (1971) 65-67Google Scholar for a general discussion.
27 Infra p. 137.
28 S. 38(1); see generally Chalmers, , “Human Rights and What is Reasonably Justifiable in a Democratic Society”(1975) 3 Melanesian Law Journal 92.Google Scholar
29 Final Report of the Constitutional Planning Committee (1974) 8/1.
30 Id. 8/15.
31 Id. 8/1.
32 Ibid.
33 See now Constitution s. 134.
34 Final Report of the Constitutional Planning Committee (1914) 8/2.
35 Id. 2/1.
36 Id. 8/16. Note also s. 158(2), which provides that: “In interpreting the law the courts shall give paramount consideration to the dispensation of justice”.
37 Constitution s. 24, see text infra.
38 Schedule 1.2, 1.3, 1.4, 1.16 and 1.20.
39 Schedule 2.1.
40 Schedule 2.2.
41 Schedule 2.9(1).
42 Schedule 2.9(2).
43 Schedule 2.12(1).
44 See generally Hegarty, , “Issues and Conflict in Post-Colonial Papua New Guinea” (1979) 18 World Review 27, 28-29Google Scholar especially.
45 The statements of facts are taken primarily from the judgments of Raine Deputy C.J. and Saldanha J. in the Premdas case.
46 Premdas case, 3 per Prentice C.J.
47 Premdas v. The Independent State of Papua New Guinea, unreported, 4 July 1979, 1; Appendix “B” to the judgment of Kearney J. in the Rooney case (interlocutory judgment), unreported (Supreme Court case no. 163A, 3 September 1979).
48 ld. 3.
49 Infra p. 156.
50 Premdas case, 7 per Prentice C.J. is illustrative of the view taken by the whole Court.
51 Id. 35 per Saldanha J., 82 per Andrew J.
52 Id. 7.
53 Id. 34 per Saldanha J., 77 per Andrew J. who also refers to the power as ministerial.
54 Id. 7.
55 Final Report of the Constitutional Planning Committee (1974) 5/1/10.
56 S. 1 of the Fourteenth Amendment to the Constitution of the United States of America.
57 See generally Jacobs, , The European Convention on Human Rights (1975) 76-90.Google Scholar
58 Premdas case, 28 per Saldanha J.
59 Id. 8 per Prentice C.J.
60 (1975) 119 Solicitors’ Journal 322; see also n. 25, infra p. 145.
61 Ibid.
62 Premdas case, 10.
63 Ibid. The decisions cited were R. v. Inspector of Leman Street Police Station; ex parte Venicoff [1920] 3 K.B. 72; R. v. Governor of Brixton Prison; ex parte Soblen [1963] 2 Q.B. 243; and Re Maries’ Application [1958] E.A. 153 (High Court of Kenya).
64 Premdas case, 29.
65 The Ringeisen case, discussed in Jacobs, op. cit. 78-83.
66 That is, by having been adopted by the Parliament after Independence in a manner which satisfied s. 38; see supra p. 126.
67 Premdas case, 9 per Prentice C.J.
68 Id. 9, per Prentice C.J., 18 per Raine Deputy C.J. and 78 per Andrew J.
69 Final Report of the Constitutional Planning Committee (1974) 5/1/12.
70 Premdas case, 30 per Saldanha J., 78 per Andrew J.
71 Prentice C.J., (with whom Raine Deputy C.J. agreed) and Andrew J.
72 Premdas case, 12 (emphasis added).
73 Id. 10.
74 Id. 11, quoting from Final Report of the Constitutional Planning Committee (1974) 5/1/13.
75 Id. 10.
76 Id. 12.
77 Id. 73-75.
78 Constitution, ss. 50-56.
79 Final Report of the Constitutional Planning Committee (1974) 5/1/5.
80 Premdas case, 10.
81 Id. 78.
82 Id. 14, referring to that part of the C.P.C. report quoted by Prentice C.J.
83 Id. 79.
84 Ibid.
85 Final Report of the Constitutional Planning Committee (1974) 5/1/33.
86 Id. 5/1/20.
87 Premdas case, 14.
88 Ibid.
89 Ibid.
90 Id. 15.
91 [1948] 1 K.B. 223.
92 [1968] A.C. 997.
93 Premdas case, 22.
94 Id. 32.
95 Id. 79.
96 Id. 16 per Prentice C.J., 31 per Saldanha J.
97 Id. 16.
98 Id. 32.
99 Ibid.
page 141 note 1 Id. 16.
2 Id. 21.
3 Id. 80.
4 In his letter to Mrs Rooney, the Minister for Justice, on 13 July 1979, infra p. 151, Prentice C.J., after referring to the Premdas case (which at that stage had been considered by Pritchard J. in the National Court), stated that he was sure that the Minister’s advisers, if she had consulted them, would have drawn her attention to s. 41 of the Constitution. Pritchard J.’s judgment (see Appendix “B” to the judgment of Kearney J. in the Rooney case, unreported Supreme Court case no. 163A) does not refer to s. 41, and Prentice C.J.’s comment was, at least, a prejudgment that this was an issue.
5 Final Report of the Constitutional Planning Committee (1974) S/1/25.
6 Premdas case, 12.
7 Ibid. Prentice C.J. referred to s. 28(5) (proceedings against “leaders” under the Leadership Code), s. 37(22) (proceedings of Village Courts), and s. 37(11). Wilson J. added as a fourth category decisions made in the exercise of “deliberate judgement”, which s. 62(1) provides “must not be biassed, arbitrary or capricious”: id. 54. On the other hand, Saldanha J. found only two instances where the Constitution required observance of natural justice, viz ss. 28(5) and 37(22): id. 36.
8 Id. 12. There is of course no “Common Law of the United Kingdom”, and Prentice C.J. should be taken to be referring to English common law.
9 Id. 36.
10 Id. 52.
11 Id. 77-78. Andrew J. simply cited English decisions, and found the Australian cases to be to the same effect.
12 Id. 12.
13 Id. 51.
14 Id. 35.
15 Id. 13, citing the cases referred to supra n. 63.
16 [1969] 2 Ch. 149.
17 Citing R. v. MacKellar; ex parte Gaunt (1978) 20 A.L.R. 119; Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396; and R. v. MacKellar; ex parte Ratu (1977) 137 C.L.R. 461.
18 Premdas case, 13. Andrew J. adopted the same analysis as Prentice C.J., but did not consider whether the English and Australian authorities were applicable to Papua New Guinea: id. 77-78.
19 Id. 36.
20 Ibid.
21 Id. 36-39. In addition to those cases cited by Prentice C.J., supra n. 63, Saldanha J. quoted a passage from Pear/berg v. Varty [1972] 2 All E.R. 6, 17, and relied squarely on Schmidt’s case.
22 [1969] 2 Ch. 149.
23 [1964] A.C. 40.
24 Premdas case, 39.
25 Saldanha J. does not provide a citation for Birdi, and the only available reports (those in The Times, 12 February 1975, and (1975) 119 Solicitors’ Journal 322) do not contain the passages quoted by his Honour; see n. 33, infra p. 147.
26 Cornelius v. Phillips [1918] A.C. 199, 211 per Viscount Haldane, and Flower v. Ebbw Vale Steel, Iron & Coal Coy. Ltd [1934] 2 K.B. 132, 154 per Talbot J.
27 Premdas case, 41.
28 Id. 54.
29 Id. 53.
30 Smith, De, Judicial Review of Administrative Action (3rd ed. 1973) 165Google Scholar. The provision of a review mechanism could be argued as a basis for the application of this maxim; that is, that the mechanism for review is an implied exclusion of any other procedure. Contrawise, it could be argued that the Act did not stipulate the procedure to be followed by the Committee of Review. Wilson J.’s conclusion may well be correct, but his statement of principle appears to be excessive.
31 Premdas case, 53. Part X of the Constitution permits the declaration of a national emergency in relation to the whole or part of the country, and in this situation most of the Basic Rights provisions may be qualified by emergency laws: s. 233. Wilson J. appears to suggest that the underlying law on natural justice would also contract in its scope of application in a state of emergency, a view in line with the English law: De Smith, op. cit. 167-168.
32 Premdas case, 56.
33 There is very little basis upon which the politicians or the lawyers who were involved could have known that the Court of Appeal in Birdi had discussed the principles of natural justice. The only law report cited by Wilson J. in Premdas is the 9 May 1975 part of volume 119 of the Solicitors’ Journal, which, at the earliest, would have arrived in Papua New Guinea towards the end of the Constituent Assembly debate on the Constitution Bill. Moreover, this report indicates only that Lord Denning M.R. referred in some way to the legitimate expectation principle, and while it indicates too that Stephenson and Geoffrey Lane L.JJ. delivered concurring judgments, it does not record that these Lords Justice made any reference to the principles upon which natural justice applied. Birdi’s case was also reported in The Times newspaper on 12 February 1975 (which would have been known to at least Prentice C.J., who referred to a case-note on Birdi in (1976) 92 Law Quarterly Review 33, 34 which refers to The Times report), but that report is no fuller than that in the Solicitors’ Journal. However, Wilson J. referred to parts of the judgments of both Lord Denning M.R. and Geoffrey Lane L.J. which do not appear in either of these truncated reports of Birdi’s case, and it must be presumed that the Court had before it some other report of the Court of Appeal’s judgment; Prentice C.J. and Saldanha J. also referred to passages from Birdi not printed in the two available reports. Finally, it may be noted that Wade, Administrative Law (4th ed., 1977) 397, 423 refers to Birdi’s case only on the issue of the effect of the European Convention on English domestic law, and that he regards the case as unreported. In the light of all this, it is difficult to regard the case as “authoritative”.
34 Premdas case, 56.
35 [1969] 2 Ch. 149, 170.
36 [1964] A.C. 40.
37 [1969] 2 Ch. 149, 171. No citation is given to Geoffrey Lane L.J.’s judgment,
38 Premdas case, 57-58.
39 See Constitution, Schedule 2.2(1). Premdas case, 58.
40 Salemi v. MacKellar (No. 2) (1977) 137 C.L.R. 396.
41 R. v. MacKellar; ex parte Ratu (1977) 137 C.L.R. 461.
42 Premdas case, 65.
43 [1977] 3 All E.R. 452.
44 Id. 457 per Lord Denning M.R., 461 per Geoffrey Lane L.J., 465 per Cumming-Bruce L.J.
45 Id. 460.
46 Premdas case, 64.
47 Id. 65.
48 Id. 64, citing Richard West and Partners (Inverness) Ltd v. Dick (1969] 1 All E.R. 289, 292 per Megarry J., Slack v. Leeds Industrial Co-operative Society Ltd [1923] 1 Ch. 431, 451 per Lord Sterndale M.R., and Cornelius v. Phillips [1918] A.C. 199, 211 per Lord Haldane L.C.
49 Id. 65. The status of Birdi has been commented on supra n. 33, and the only significant pre-1975 authority is the judgment of Lord Denning M.R. in Schmidt.
50 Id. 47, although Wilson J. acknowledged that the letter from the Prime Minister’s Office to Dr Premdas did state that the Government considered his activities to be “detrimental to the good government of his country”.
51 Id. 50-51.
52 Id. 58.
53 De Smith, op. cit. 243-244.
54 (1977) 14 A.L.R. 1, 39.
55 Id. 40.
56 De Smith, op. cit. 166-167.
57 Reproduced in the judgment of Raine Deputy C.J. in the Rooney case, 2-3; statements of fact are taken from this judgment unless otherwise indicated.
58 Id. 4-6.
59 Id. 21.
60 A press report of this occasion says only that the Chief Justice made his statement in “a crowded Supreme Court sitting”, and that Pritchard and Kearney JJ. sat with the Chief Justice: Post-Courier, 23 July 1979. The publication by this newspaper of the Minister’s letter of 11 July did not lead to any prosecution of the editor or journalist responsible, even though, as Wilson J. noted, the newspaper was “directly responsible for the wide publication of the statements”: Rooney case, 5. Wilson J.’s remark was also directed at the publication by the National Broadcasting Commission of the statement made by Mrs Rooney to a reporter. (It is to be noted that the pages of Wilson J.’s judgment in Rooney are separately numbered.)
61 Rooney case, 11.
62 Ibid.
63 Post-Courier, 23 July 1979.
64 Post-Courier, 24 July 1979.
65 Ibid.
66 Post-Courier, 2 August 1979.
67 Post-Courier, 7 August 1979.
68 Post-Courier, 9 August 1979.
69 1 Kina equals approximately $1 Australian.
70 See generally Miller, , Contempt of Court (1976).Google Scholar
71 E.g. Attorney-General v. Times Newspapers Limited [1974] A.C. 273, 312 per Lord Diplock, where his Lordship indicates that he differed from other Lords. It is difficult to see how findings can be made beyond reasonable doubt where there is disagreement between the judges.
72 E.g. Ambard v. Attorney-General of Trinidad and Tobago [1936] A.C. 322. The European Court on Human Rights, basing its opinion on the freedom of expression clause of the European Convention, has disagreed with the House of Lords opinion in The Times case: (1979) 123 Solicitors’ Journal 416-417.
73 See generally Dobbs, , “Contempt of Court: A Survey” (1971) 56 Cornell Law Review 183.Google Scholar
74 Bridges v. California (1941) 314 U.S. 252,271.
75 Dobbs, op. cit. 210, quoting from Pennekamp v. Florida (1946) 328 U.S. 331, 349.
76 Rooney case, 25.
77 Final Report of the Constitutional Planning Committee (1974) 5/1/1.
78 Rooney case, 25.
79 Vol. 9, pp. 7, 8 and 21.
80 Rooney case, 15.
81 Ibid.
82 Id. 17.
83 [1974] A.C. 273.
84 Rooney case, 18.
85 Id. 45.
86 Premdas v. The Independent State of Papua New Guinea, unreported, 4 July 1979; Appendix “B” to the judgment of Kearney J. in the Rooney case (interlocutory judgment).
87 Rooney case (interlocutory judgment), 1 per Raine Deputy C.J., 10 per Kearney J.
88 Id. 2. Nevertheless his Honour found this assumption “hard to accept, for if it was [the case] then certainly the judge changed his mind”: id. 2-3. With respect, it would seem clear that Pritchard J. did change his mind.
89 Id. 3.
90 Ibid.
91 [1903] 2 K.B. 432.
92 Id. 437. This aspect of R. v. Parke was stressed by the High Court of Australia in Packer v. Peacock (1912) 13 C.L.R. 577, 583.
93 (1912) 13 C.L.R. 577, 586.
94 See generally Lane, op. cit. 570-575.
95 Rooney case (interlocutory judgment), 4.
96 Id. 10.
97 Id. 12.
98 Miller, op. cit. 40-41.
99 [1974] A.C. 273, 293-294 per Lord Reid, 326 per Lord Cross.
page 158 note 1 In England, the function is vested in the Attorney-General, and not in the Director of Public Prosecutions. However, the Constitution should probably be taken to have vested this function in the Public Prosecutor, s. 177(1)(a).
2 Stephen, , History of the Criminal Law of England (1883) i, 496;Google Scholar Cole v. Coulton (1860) 24 J.P. 596; Duchesne v. Finch (1912) 28 T.L.R. 440; Snodgrass v. Topping (1952) 116 J.P. 332; Greenwood v. Leary [1919] V.L.R. 114; and Sankey v. Whitlam (1978) 21 A.LR. 505.
3 R. v. Fletcher; ex parte Kisch (1935) 52 C.L.R. 248, 258 per Evatt J.; R. v. Dunbabin; ex parte Williams (1935) 53 C.L.R. 434, 445 per Rich J.
4 Rooney case, 50.
5 Id. 38.
6 Id. 19.
7 Final Report of the Constitutional Planning Committee (1974) 8/10.
8 [1974] A.C. 273, 294.
9 Frank, , Courts on Trial (1949) 57Google Scholar. “The uniformity and stability which the rules may seem to supply are therefore often illusory, chimerical. No rule can be proof against the subjectivity inherent in fact-finding. Ordinarily the human element in judging cannot be escaped by resort to legal rules. In the last analysis, the legal rights of any man—to his property, to his means of earning a living, or not to be jailed or hanged when innocent of crime—if that man’s rights become involved in a law-suit, usually depend on that human element. Don’t let anyone persuade you to believe otherwise, to believe that, by any system of precedents or by legislation, your ordinarily can, when you go to court, get away from the reactions of some fallible human beings, if the facts are in dispute”: 328-329.
10 Rooney case, 25.
11 Id. 1.
12 Id. 36.
13 Premdas case. 51.
14 Id. 44.
15 Schedule 2.3 (1) (d) also requires reference to “relevant decisions of the courts of any country that in the opinion of the court has a legal system similar to that of Papua New Guinea”, but in view of the supremacy of the Constitution in the system of laws (s. 11), the direction in schedule 2.3(1) (b) should take precedence over that in schedule 2.3(1)(d).
16 In view of the C.P.C.’s comments on the pre-Independence system of government, supra p. 130, it could well be argued that there should be a presumption against the English common law where interpretation of the Constitution is involved.
17 Skelton v. Collins (1966) 115 C.L.R. 94, 134 per Windeyer J.
18 Id. 135.
19 Rakatani Peter v. South Pacific Brewery Ltd [1976] P.N.G.L.R. 537, 546-S47 per Frost C.J., 560 per Kearney J. Prentice C.J. and Raine Deputy C.J. refused to adopt the Australian cases and followed a purposive mode of interpretation: id. 556-5S1.
20 Premdas case, 73-76.
21 See generally Griffiths, , The Politics of the Judiciary (1977).Google Scholar
22 This line of argument is occasionally raised publicly: Bayne, , “Legal Policy in Papua New Guinea 1972-1977” in Ballard (ed.), Policy Making in a New State (forthcoming, 1980).Google Scholar