Section 18 puts the interpretation of constitutional law in one place. Everything else in this group of rules follows from that.
The two subsections
Section 18(1) — subject to the Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.
Section 18(2) — where any such question arises in any court or tribunal other than the Supreme Court, that court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action is appropriate.
Section 18(1) is invoked by a person: an application in Form 1.
Section 18(2) is invoked by a court or tribunal: a reference in Form 2.
Both are governed by Order 4 of the Supreme Court Rules 2012, together with special references under section 19 in Form 3.
Order 4 Rules 1 and 3
An application under Constitution s 18(1) shall be instituted by an application in Form 1 and shall (a) be entitled under Constitution, s 18(1) with the year and number of the reference; (b) be endorsed with (i) the name of the person making the application; (ii) an application for a declaration that the applicant has standing to make the application; (c) be signed by the person making the application; and (d) be filed in the Registry.
Rule 3 requires the application to state —
(a) the basis on which the applicant claims standing; (b) the section of a constitutional law the applicant requests to have interpreted; (c) the answer or interpretation and relief for which the applicant contends; (d) the facts out of which the request arises; (e) whether a question of fact arises for determination by the Court; (f) the names of the persons or bodies whose interests may be directly affected by the interpretation sought.
Order 4 Rule 17: unless otherwise ordered, the Registrar shall in the first instance, set an application under Constitution, s 18(1) down before the Court for hearing and determination of the sole question of standing of the applicant, and shall set it down for substantive hearing only after the Court has declared that the applicant has standing.
So a section 18(1) application produces two hearings. The first is about standing alone, and the applicant must succeed in it before the constitutional question is reached.
Order 4 Rules 2 and 4
A reference under s 18(2) shall be entitled under the section of the Constitution by which it is made together with the year and number, name the Court, tribunal or authority making the reference or the title of proceedings, be in accordance with Forms 2 or 3 whichever is applicable, be signed, and be filed in the registry.
Rule 4: a reference under s 18(2) shall state the question to be referred and such facts as are admitted or found by the Judge of the National Court and are necessary for the proper consideration of the question; where those facts cannot be conveniently and shortly stated, the findings of the Judge shall be annexed; and where the question involves the pleadings, so much of the pleadings shall be set out as raise the question.
Where the referring court or tribunal consists of a magistrate or some other officer, but not a Judge of the National Court, Rules 7 to 9 apply with that description substituted.
A Judge proposing to make a reference may give such directions as he considers proper for the drafting of the reference and for the preparation of the documents. The original reference is signed by the Judge and transmitted to the Registrar. And the Judge may, on application or of his own motion and on notice, amend the reference at any time before argument.
Order 4 Division 4
Rule 13 — an application, reference or special reference shall be served on the Principal Legal Adviser unless made by that authority, as soon as possible after it is filed.
Rule 14 — a section 18(1) application shall be served, as soon as possible, on the persons named in the application whose rights may be affected by the interpretation sought.
Rule 15 — where the matter relates to the Constitutional validity of any Act or provision passed by the National legislature in relation to any Province, or by the legislature of a Province, it shall be served on the Provincial Government according to law.
Order 4 Rule 18
The court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
Note hypothetical and unlikely to have any immediate relevance. A reference must arise from a real question in a real matter. Section 18(2) itself uses a similar filter at the referring end: the court or tribunal must refer unless the question is trivial, vexatious or irrelevant.
See special references and intervening.
Sources
- Constitution of the Independent State of Papua New Guinea — ss 18, 19
- Supreme Court Rules 2012 — O 3; O 4 rr 1–18; Forms 1, 2, 3
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.