Most legal systems make you wait. Someone has to be harmed, sue, and litigate the point up through the courts before a constitutional question is answered. Papua New Guinea does not insist on that. Section 19 of the Constitution allows a constitutional problem to be settled before damage is done.
What section 19 does
On application by one of the authorities listed in section 19(3), the Supreme Court shall give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law — including, without limiting that expression, any question as to the validity of a law or proposed law.
Section 19(5) defines “proposed law” as a law that has been formally placed before the relevant law-making body. So a Bill on the floor of Parliament can be tested; an idea circulating in a department cannot.
Section 19(2): an opinion given under section 19(1) has the same binding effect as any other decision of the Supreme Court. It is not a suggestion. It is law.
Who may make a special reference
Section 19(3) says the following authorities only:
- the Parliament;
- the Head of State, acting with, and in accordance with, the advice of the National Executive Council;
- the Law Officers of Papua New Guinea — the Attorney-General (the principal legal adviser) and the Public Prosecutor;
- the Law Reform Commission;
- the Ombudsman Commission;
- a Provincial Assembly or a Local-level Government;
- a provincial executive;
- a body established by a Constitutional Law or an Act specifically for settling disputes between the National Government and Provincial or Local-level Governments, or between such governments; and
- the Speaker, in accordance with section 137(3) (Acts of Indemnity).
The list is exhaustive — “the following authorities only”. If you are an individual with a constitutional grievance, your routes are a section 18 application, an enforcement proceeding under section 57, or ordinary litigation in which the question arises and is referred up.
Why the section matters in practice
Section 19 is how the big constitutional questions in this country actually get decided. A representative sample:
- Special Reference by Fly River Provincial Executive Council; Re the Organic Law on the Integrity of Political Parties and Candidates [2010] PGSC 3; SC1057 — the validity of provisions constraining how members of Parliament vote.
- In re Reference to Constitution s 19(1) by East Sepik Provincial Executive [2011] PGSC 41; SC1154.
- In re Special Reference by Allan Marat [2012] PGSC 20; SC1187.
- Reference by the Ombudsman Commission; Re Public Money Management Regularisation Act 2017 [2020] PGSC 43; SC1944.
- Special Reference by the Bougainville Executive [2020] PGSC 42; SC1952.
Procedure and the Court’s control
Section 19(4) allows the Rules of Court of the Supreme Court, subject to any Act, to provide for matters relating to this jurisdiction — in particular:
- the form and contents of the questions to be decided;
- the provision of counsel adequate to enable full argument of any question; and
- the cases and circumstances in which the Court may decline to give an opinion.
Paragraph (b) reflects a real concern. Because a reference may involve no contradictor — no opposing party with an interest in resisting — the Court needs argument on both sides before it settles the law for everyone. Paragraph (c) preserves a discretion to decline: a question that is hypothetical, premature or inadequately framed may not be answered.
Section 18 or section 19?
| Section 18 | Section 19 | |
|---|---|---|
| Who | A party with sufficient interest, or a referring court or tribunal | Only the nine listed authorities |
| Needs a live dispute? | Normally yes | No |
| Can test a Bill? | No | Yes, once formally before the law-making body |
| Effect | Binding decision | Binding opinion (s 19(2)) |
Sources
Constitutional sections are amended. Before relying on anything here, read the current text: the Constitution on PacLII. If a decision matters to you, get advice — start with the Office of the Public Solicitor.