The National – Monday, December 20, 2010
THE Supreme Court has thrown out a constitutional reference which sought to invalidate certain provisions of the Forestry Act and the Forestry (Timber Permits Validation) Act.
A five-member bench ruled 3-2 last Friday that the interpretation and application of various provisions of the constitution should be the exclusive function of parliament and not any private citizen unless he has the necessary standing.
It said this was provided for under section 18(1) of the constitution.
In his written judgment, Chief Justice Salamo Injia said the wording and meaning of section 18(1) was quite simple and plain.
“The principles of fair and liberal interpretation of constitutional law should not be applied in a manner that produces a result that usurps the legislative function on a matter that is clearly within the exclusive function of the parliament,” he said.
“The vesting of jurisdiction in the court to deal with a particular matter and in a particular procedural matter is clearly a matter that is within the exclusive function of the legislature.”
Justice Nicholas Kirriwom, who read out the judgment to the court, and Justice Gibbs Salika concurred with the chief justice while Justice Catherine Davani ruled for the referrers.
Justice Mark Sevua did not make any interpretation.
The reference was filed by forest resource owners Ken Norae Mondiai, John Mavramantz, Frances Demo, Pastor Lala Amsing, Johannes Awep and Jimmy Sina.
They had claimed that the act was unconstitutional and invalid because it breached section 114(1), section 38, section 53(1), section 25(1) and section 3 of the constitution.
The reference was challenged by the National Forest Board and the PNG Forest Industries Association which, amongst other things, argued that the application was an abuse of the court process.
In their affidavit, they said the referrers were not a court or tribunal, and, therefore, had no power to refer a question to the Supreme Court under section 18.
The proceedings were misconceived and flawed and should be dismissed, they said.
Davani said the referrers had complained that their interests had been affected by the application of certain provisions of the Forestry Act (1991) and Forestry (Timber Permits Validation) Act 2007.
She said they, therefore, sought the court’s opinion on the interpretation and application of various provisions of the constitution to those acts of parliament.
“The court is invited to find that certain provisions of those acts are inconsistent or in conflict with certain provisions of the constitution and to declare them unconstitutional,” she said.
Kirriwom said while he understood the view expressed by Davani, he had to go along with the chief justice.
“(His) opinion is founded more on principle and with a view of developing a firm constitutional foundation on procedure to be applied and not focused on short-term and sporadic private interests that only arise from time to time,” he said.
“The Supreme Court must set the benchmark and direct traffic as it were on the processes and procedure in accordance with clear constitutional dictates and not bend backwards to find ways and reasons to accommodate private or public interests threatened by any executive acts or by legislations without usurping the function of the legislature.”