What Does It Mean That the Constitution Is the Supreme Law?

“Supreme law” is a phrase people use loosely. In Papua New Guinea it has a precise meaning, given by section 11 of the Constitution, and three consequences that decide real cases.

It covers all acts, not only statutes

Section 11 does not speak only of laws. It reaches legislative, executive and judicial acts. That means:

• an Act of Parliament inconsistent with the Constitution is invalid to that extent, however recent or however specific;
• a decision or direction by a Minister, department, board or official that exceeds constitutional limits is ineffective;
• even a court order made contrary to a constitutional requirement lacks effect.

The Organic Laws share this status. An Act inconsistent with an Organic Law is likewise invalid to the extent of the inconsistency — which is why the constitutional character of a matter often turns on whether the governing instrument is an Organic Law or an ordinary Act. See what is an Organic Law?

“To the extent of the inconsistency”

This is the phrase that most often decides the practical outcome. Invalidity is partial by default. A single offending subsection does not necessarily take the whole Act with it. The court identifies what is inconsistent and holds that much ineffective, leaving the remainder standing if it can operate sensibly on its own.

Section 10 reinforces the same idea from the other direction for subordinate and adopted laws: where such a law would otherwise exceed the authority given to make it, it is nevertheless valid to the extent to which it is not in excess.

Self-executing provisions

Section 11(2) is easy to skim and important not to. Constitutional provisions operate of their own force to the fullest extent their nature and subject-matter permit. You do not need an enabling Act before a constitutional right or duty has effect.

Section 22 completes the thought: provisions recognising rights of individuals, or conferring powers or imposing duties on public authorities, shall not be left without effect because of the lack of supporting machinery or procedural laws — and where machinery is missing, the National Court supplies it as far as practicable, in the light of the National Goals and by analogy from other laws.

Who decides that something is invalid?

Questions of interpretation or application of a Constitutional Law belong, under section 18, to the Supreme Court, to the exclusion of other courts. A lower court or tribunal that meets such a question must — unless the question is trivial, vexatious or irrelevant — refer it to the Supreme Court and take whatever other action is appropriate, including adjourning.

Certain authorities may also put a question to the Supreme Court directly, without waiting for a dispute, under section 19. That is how the validity of legislation is often tested in Papua New Guinea — for example in Special Reference by Fly River Provincial Executive Council; Re the Organic Law on the Integrity of Political Parties and Candidates [2010] PGSC 3; SC1057.

Sanctions where a Constitutional Law is breached

Section 23 provides a default enforcement mechanism. Where a Constitutional Law prohibits or restricts an act or imposes a duty and no other enforcement is provided, the National Court may impose imprisonment of up to ten years or a fine of up to K10,000, or — in the absence of any other equally effective remedy — order compensation by the person or governmental body in default, and may make any further order it thinks proper.

You cannot amend it sideways

Section 16 forbids indirect alteration: no Constitutional Law takes effect so as to affect the operation of an existing provision of such a law unless it was made in the manner and form required for the alteration of that provision. Supremacy is protected against being eroded by a later law that quietly changes the effect of an earlier one.