Enforcement is a different jurisdiction from interpretation. Section 18 asks what a provision means; section 57 asks the Court to protect or enforce a right that is said to have been infringed.
The constitutional basis
Section 57 of the Constitution provides for a right or freedom referred to in Division III.3 to be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose, either on the Court’s own initiative or on application by a person with an interest in its protection and enforcement, or in the case of a person under a disability by a person acting on their behalf.
Section 58 provides separately for compensation for infringement of a right or freedom.
Order 6 Rule 1: an application to enforce Constitutional rights under Constitution, s 57, shall in the first instance, if not made in the National Court, be made to a Judge. — Supreme Court Rules 2012.
The National Court is the ordinary forum, and the National Court Rules provide for enforcement proceedings there. Where the application is brought in the Supreme Court, Order 6 requires it to go in the first instance to a single Judge.
Order 6 Rules 2 and 3
Rule 2 — an application shall be supported by an affidavit setting out the facts giving rise to the application.
Rule 3 — an application under s 57 shall be instituted by an application to enforce constitutional rights and shall —
(a) be entitled under the section of the Constitution by which it is made together with the year and number of the application;
(b) be entitled with the name of the court, person or Law Officer making the application;
(c) state briefly the circumstances giving rise to the application and specify the relevant Constitutional rights provisions;
(d) be in accordance with Form 6;
(e) be signed by the person or his lawyer or Law Officer making the application;
(f) be filed in the registry.
The circumstances giving rise to the application — briefly, with the detail in the affidavit under Rule 2.
The relevant Constitutional rights provisions — specified. Name the sections: section 37 (protection of the law), section 42 (liberty of the person), section 41 (proscribed acts), section 53 (unjust deprivation of property), section 59 (natural justice), or whichever is engaged.
An application that complains of unfairness without identifying the provision infringed has not complied with paragraph (c).
“The court, person or Law Officer.” Section 57 contemplates the Court acting on its own initiative, and it contemplates a Law Officer applying. The Rule accommodates all three.
Order 6 Rule 4
An enforcement application and supporting affidavits shall be served —
(a) on those whose conduct give rise to the action; and
(b) if action for enforcement is taken against the executive arm of Government, in accordance with Order 4 Division 4.
Order 4 Division 4 requires service on the Principal Legal Adviser as soon as possible after filing (Rule 13); on the persons named whose rights may be affected (Rule 14); and, where the constitutional validity of an Act relating to a Province is in issue, on the Provincial Government according to law (Rule 15).
Section 57 or section 18?
| You want | The route |
|---|---|
| A provision of a Constitutional Law interpreted | Application under s 18(1), Form 1 — standing decided first |
| A constitutional question arising in another court answered | Reference by that court under s 18(2), Form 2 |
| An authoritative opinion, including on a law’s validity | Special reference under s 19 by a listed authority, Form 3 |
| A right protected or enforced against particular conduct | Application under s 57, Form 6 |
| Compensation for an infringement | Section 58, ordinarily in the National Court |
A section 18(1) application asks an abstract question and requires standing to be established as a separate hearing under Order 4 Rule 17. A section 57 application is directed at conduct, names those responsible under Order 6 Rule 4(a), and seeks relief.
Where the real complaint is that someone did something unlawful to the applicant, section 57 is usually the right route. See section 18.
Pending the application
Where proceedings within the original jurisdiction are pending, a Judge may make (a) a direction not involving a final decision upon the proceedings; (b) an interim order to prevent prejudice to the claims of the parties; (c) an order for security for costs; or (d) an order in the nature of orders such as are referred to in s 8(1)(a), (b) and (c) of the Act — production of documents, examination of witnesses, and evidence from a competent but not compellable witness.
Order 3 Rule 3 also allows a single Judge, on direction of the Court, to take evidence upon any issue of fact and state those facts as found by him, on which the Court may act so far as it thinks fit to adopt it — useful where an enforcement application turns on disputed facts.
Sources
- Constitution of the Independent State of Papua New Guinea — ss 18, 19, 37, 41, 42, 53, 57, 58, 59
- Supreme Court Rules 2012 — O 3 rr 1–3; O 4 Div 4; O 6; Form 6
- Supreme Court Act (Chapter 37) — s 8
Before relying on anything here, read the current text of the Supreme Court Rules 2012 and check for later amendments. If a decision matters to you, get advice — start with the Office of the Public Solicitor, or find a firm in the law firms directory.