Papua New Guinean constitutional litigation frequently turns on a single document: the certificate the Speaker gives under section 110 of the Constitution.
Section 110 — the ordinary certificate
Subject to section 137(3) and to any Act made for the purposes of section 110(3), the Speaker shall certify under the National Seal, in accordance with the Standing Orders, that a law has been made by the Parliament. The law then comes into operation on the date of the certificate, unless it provides for a different commencement or is expressed to be retrospective.
The certificate performs the function that assent performs in other systems: it is the moment at which a Bill becomes an Act.
Section 14(4)–(5) — certificates for constitutional laws
For a law altering the Constitution or a proposed Organic Law, the certificate must do more. In the section 110 certificate, the Speaker must certify that the requirements of section 14(1), (2) and (3) have been complied with, and the certificate shall state:
- (a) the date on which each vote was taken; and
- (b) in relation to each vote — (i) the number of seats in the Parliament at the time, and (ii) the respective numbers of members voting for and against the proposal (and, where the section 15 urgency waiver was used, for and against the waiver motion).
Section 14(5) provides that the certificate is, in the absence of proof to the contrary, conclusive evidence of the matters stated. So it is presumed correct — but the presumption is rebuttable, and the certificate’s own contents are the starting point for any challenge. That is why the seat count and vote figures must appear on its face: they allow anyone to check whether the prescribed majority was in fact obtained.
Certificates for laws restricting qualified rights
Section 38(2)(c) requires that a law regulating or restricting a qualified right be made, and certified by the Speaker in his section 110 certificate to have been made, by an absolute majority. A law that restricts a qualified right but carries no such certification has not met section 38, and under section 38(3) the burden of showing compliance is on the party relying on the law’s validity.
This makes the certificate an object of practical importance to anyone challenging a restriction on expression, assembly, movement, privacy, search or employment.
The section 14(6) certificate — and the four-week clock
Section 14(6) allows the two-vote requirement to be bypassed where the Speaker, after consultation with the Chief Justice or a Judge nominated by the Chief Justice, certifies that a proposed law does not affect the substance of any provision to be altered, is designed to correct a self-evident error or omission, or is merely incidental to or consequential on another alteration.
The Supreme Court may disallow such a certificate on the application of any person, made within four weeks of the date of the certificate — or such further time as a Judge, on application made within that period, considers reasonable. Otherwise the certificate is conclusive. Four weeks is one of the shortest constitutional limitation periods in the document, and it runs from the certificate’s date, not from when anyone found out about it.
Challenging a law on certificate grounds
Because certification is a constitutional requirement, a defect in it is a constitutional question — for the Supreme Court under section 18, or by section 19 reference. The recurring grounds are:
- the certificate does not state the dates, the seat count, or the votes, as section 14(5) requires;
- the figures on the certificate show that the prescribed majority was not obtained;
- the votes were not separated by two months, or were taken at the same meeting;
- the proposal was not published in full in the National Gazette and circulated a month before introduction;
- amendments were moved without prior circulation, contrary to section 14(3); or
- a law restricting a qualified right lacks absolute-majority certification under section 38(2)(c).
These grounds are attractive to litigants because they are objective and provable from the record. The classic sequence is the Haiveta v Wingti litigation: see [1994] PGSC 7; [1994] PNGLR 189 and [1994] PGSC 6; [1994] PNGLR 197.
Section 137 — Acts of Indemnity
Section 110(1) is expressed to be subject to section 137(3), which deals with Acts of Indemnity — laws indemnifying persons in respect of acts done. The Speaker is one of the authorities entitled under section 19(3)(f) to refer a question to the Supreme Court, expressly in accordance with section 137(3).
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.