Section 18(1) of the Constitution gives the Supreme Court original and exclusive jurisdiction over any question of the interpretation or application of a Constitutional Law. A person can go straight to the Supreme Court with such a question, but the Rules make standing a threshold the Court decides first.
The jurisdiction
Subject to this 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) is the other route: a court or tribunal before which such a question arises refers it. Section 19 lets named authorities make a special reference. Section 18(1) is the route for a person who wants the question decided without a pending case below. See the section 18 reference and the section 19 special reference.
The application: Form 1
The application is entitled “Application pursuant to Constitution Section 18(1), Application by (name)” and requests the Court: 1. to declare that the applicant has standing to make the application, and after that declaration, the finding sought in paragraph 3; 2. states the basis on which the applicant claims standing; 3. requests the Court to declare that the proper interpretation or application of the section is (state it); 4. states the facts out of which the request arises; 5. states whether a question of fact arises for determination (the Court may under Order 3 Rule 3 direct a Judge to find the facts first); 6. names the persons or bodies whose interests may be directly affected by the interpretation sought. It is signed by the applicant, filed with a Form 17 address for service, and carries an application for directions before a Judge.
Form 1 is on the Supreme Court Forms page. The file reference is SC Ref under Order 13 Rule 3.
Standing comes first
Subject to Rule 16, the Registrar shall (a) unless otherwise ordered, in the first instance set an application under section 18(1) down before the Court for hearing and determination of the sole question of standing of the applicant; (b) set the application down for substantive hearing only after the Court has declared that the applicant has standing.
The Constitution does not say who may apply under section 18(1). The Court has held that an applicant must show a sufficient interest in the question, which a member of the public with a general grievance does not have, and it has treated the section 19 authorities, such as the Ombudsman Commission, the Attorney-General and Provincial Executives, as the intended vehicles for questions of general public importance. Paragraph 2 of Form 1 therefore does the heavy lifting: the applicant must plead facts showing a direct and personal interest, for example that the applicant holds an office, right or property that the interpretation will determine, or is a party to proceedings whose outcome turns on it. Respondents plead to standing in their statement of response under Rule 25(b).
Service
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 filing. 14. An application under section 18(1) shall be served, as soon as possible after filing, on the persons named in the application whose rights may be affected. 15. Where the application relates to the constitutional validity of any Act passed in relation to a Province, or of a Provincial law, it shall be served on the Provincial Government.
The Principal Legal Adviser is the Attorney-General under the Attorney-General Act 1989. Rules 19 and 20 allow the Court, the referrer or the Attorney-General to have notice of the application published to persons who may have an interest, with a time limited for applications to intervene, and Rule 16 provides that the matter is not set down until that time has expired. See intervening in a constitutional reference.
Statements of response
Each respondent and intervener must, within 14 days of service or of leave to intervene, file an appearance and a statement of response in Form 4A, stating whether it supports or opposes standing and, once standing is declared, pleading to the application within a further 14 days. The applicant may reply within 7 days. The response may not exceed the length of the application by more than one A4 page. See the statement of response.
If facts are in dispute
Paragraph 5 of Form 1 asks whether a question of fact arises. Where it does, Order 3 Rule 3 lets the Court direct a single Judge to take evidence and state the facts found, on which the Court may act. Constitutional questions are answered on facts, agreed or found, not on assertions. See whether the Supreme Court can find facts.
When the Court will not answer
The court may decline to give an opinion on the question if in its opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.
A section 18(1) applicant must therefore show a live question with real consequences. An application framed to obtain an advisory opinion, or to relitigate a lost case in constitutional dress, will fail either at standing or under Rule 18. Amendment and withdrawal are dealt with under Rules 10 to 12 and Form 14. The section 57 enforcement route, for a person whose own rights have been infringed, is different and is explained in enforcing a constitutional right in the Supreme Court.
Sources
- Constitution — ss 18, 19, 57
- Supreme Court Rules 2012 — O 3 r 3; O 4 rr 1, 10–26; O 13 r 3; Forms 1, 4A, 14, 17
- Attorney-General Act 1989
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.