Who Decides What the Constitution Means?

Constitutional arguments are raised in District Courts, in tribunals and in the National Court every week. Section 18 of the Constitution determines who is entitled to answer them — and the answer is narrower than most people expect.

What counts as a “Constitutional Law”

A Constitutional Law means the Constitution and the Organic Laws. Section 18 therefore covers questions about Organic Law provisions — elections, the Ombudsman Commission, provincial government, the Leadership Code — as well as about the Constitution itself.

Interpretation, application — and the line that matters

The section covers questions of both interpretation (what does this provision mean?) and application (does it govern these facts?). That is a wide formulation, and taken literally it would send an enormous volume of ordinary litigation to the Supreme Court.

In practice, courts distinguish between a genuine question about what a constitutional provision means or reaches, and the routine business of applying settled constitutional law to facts. The National Court applies constitutional standards constantly — for example in enforcing Basic Rights under section 57, where the Constitution itself confers jurisdiction on it. What section 18 reserves is the interpretative question where the meaning or reach of the provision is genuinely open.

The duty on lower courts and tribunals

Section 18(2) is mandatory: the word is shall. A District Court, a Local Court, a leadership tribunal or any other tribunal that meets a genuine constitutional interpretation question must refer it to the Supreme Court, unless the question is trivial, vexatious or irrelevant.

That exception exists because the referral power is otherwise an obvious delaying tactic. A party facing an adverse ruling can raise a “constitutional question” and try to stall the proceeding. The tribunal is entitled — and required — to assess whether the question is real.

The obligation to “take whatever other action is appropriate” usually means adjourning the part of the case that depends on the answer, while continuing with anything that does not.

Who can bring a section 18 application

Two routes reach the Supreme Court:

• A referral under section 18(2) by the court or tribunal in which the question arose.
• An application under section 18(1) by a party with a sufficient interest, invoking the Court’s original jurisdiction directly. See, for example, Application Pursuant to Constitution, Section 18(1) by Justice Sir Bernard Sakora [2020] PGSC 76; SC1980.

A third route — open only to specified authorities, and available without any live dispute at all — is the section 19 special reference.

What the Supreme Court’s answer does

The ruling settles the constitutional question and binds. The referring court then applies it to the facts and finishes the case. Because the jurisdiction is original rather than appellate, the Supreme Court is not reviewing a decision — it is answering a question that no other court was competent to answer.

If you want to raise a constitutional point

1. Identify the provision precisely — section, subsection and paragraph.
2. Formulate the question as a question of meaning or reach, not as a complaint about the outcome.
3. Say why it is not trivial — show that the answer changes the result.
4. Raise it early. A constitutional point produced on the morning of judgment invites the vexatious finding.
5. Get advice. Constitutional references are technical. Start with the Office of the Public Solicitor if cost is an obstacle.