Constitutional law

CONSTITUTIONAL LAW TUTORIAL DISCUSSION 2 a) Discuss the fundamental difference between the provisional organic law and the ruling under Kaseng v Namaliu. The provisional laws are organic laws that were enacted before the constitution came into operation. The organic laws were enacted by the National Constituent Assembly before the Independence. According to section 266 of the constitution it states: (1) If before Independence Day the constituent assembly has made an instrument expressed to be a provisional organic law, the instrument takes effect, on Independence Day, as if it were an organic law made and coming into effect on that day. (2) If before Independence Day the constituent assembly has made an instrument expressed to be a provisional act of parliament made for the purpose of bringing any provision of this constitution into effective operation on Independence Day, as if it were an act of parliament made and coming into effect on that day. Therefore the provisional organic laws take its effect on the independence day of Papua New Guinea on the 16th of September 1975. The organic laws were adopted into the constitution and ‘ force of laws’ were given to these provisional laws. Thus the provisional organic laws were enacted and came into operation together with the constitution since the constitution has to come into power first before it expressly authorised the organic laws as stated in section 12(1) (a) where it state; “ an organic law is a law made by the Parliament in respect of a matter of provision for which by way of an organic law is expressly authorised by the constitution. ” However in the case of Kaseng and Namaliu [1995] PNGLR 481 the premiere for western province Isidore kaseng on behalf of all premieres is arguing against the passing of constitutional amendment No 16. In this case the authorising law which is the constitutional amendment No 16 is not yet being enforced when they propose to amend the organic law on provincial government, thus the passing of the OLPGLLG was referred to as void by kaseng because it is inconsistent with the constitution under section 12(1) (a). Therefore the fundamental difference between the situation in the ruling of kaseng v Namaliu and the provisional organic laws is that on the former case the enactment of the provisional law takes place at different times while the proposal law and constitutional Amendment 16 occur at the same time on the latter case. b) Discussion Discuss the case of NTN pty v The State [1986] PNGLR 167 In this case the contract was between the NTN pty the applicant and the State. Here the state went into an agreement with the NTN pty to start a commercial television station to an existing one. They agreed to start their broadcasting according to clause 4. 2 of their contract on 14 July 1986. The NTN pty limited then got itself a licence and venture into the business. However there was a change in the government on July 10 1986. The new government through the parliament exercised its legislative power under section 109(3) (b) and enforced a new parliamentary act the radiocommunication (television) regulation in 1986. This act prohibits the broadcast of television until 31st January 1988. Thus, from this cause the NTN pty filed a case against the validity of the act. The state claim that the electromagnetic spectrum is within the borders of PNG and so no one has the right to access it since it’s the property of PNG unless given permission. The state further on to claim that the act made is not against the fundamental right to freedom and expression and publication. Therefore the NTN pty applied to the national court pursuant to section 57 of the constitution claiming its right to the freedom of information under section 46 of the constitution. Thus the situation went into appeal to the Supreme Court and the Supreme Court held that the Act was unconditional since it did not comply with section 38 and it also violet the applicant’s right to publish and broadcast information under section 46 of the constitution. (c) Discussion (i) How the constitution can be altered as specified under section 13 According to section 13 of the constitution it states “ this constitution may be altered only by law made by the Parliament that- (a) Is expressed to be a law to alter this constitution; and (b) Is made and certified in accordance with section 14 (making of alterations to the constitution and organic laws). Therefore section 13 clearly state that to make alteration to the constitution the law must be expressly authorised by the constitution and also it must in accordance and certified with section 14 of the constitution. Section 14 provides with the steps to follow before a proposed law is introduced into the parliament. When it enters the parliament the speaker will then certify that law in the parliament. Thus to alter the proposed law to the constitution by the parliament that same formality must be followed with the support of the majority of votes as stated in section 17 of the constitution. (ii) In the making of alteration of the constitution and the organic laws under section 14 and 17 of the constitution, the procedure the parliament has to follow is firstly to propose a law to alter the constitution or organic law. Since these are no ordinary laws the laws must be carefully supported by a majority of vote as stated in section 17 of the constitution whereby it states “ subject to this section, in relation to a proposed law to alter a provision of this constitution the prescribed majority of votes for the purpose of section 14 ( making of alterations to the constitution and the organic laws) is the majority of votes prescribed by this constitution in relation to that provision, or if no majority is prescribed a two third majority vote. ” However the parliament must debate this proposed law during different meetings of the parliament and separated in time by at least two months as stated in section 14 (2) (a) (b). further on section 14 (2) (b) state “…the proposed law must be published by the speaker in full in the National Gazette, and calculated, in accordance with the standing of the parliament, to all members of the parliament not less than one month before it is formally introduced into the parliament. ” When the proposed law finally circulated to all members of the parliament then the speaker will announce under the National seal and according to the parliament standing orders section 100, when the procedure is complete the new law will then come into operation. Therefore the alteration to the constitution and organic law can be done at this stage. Bibliography Kwa E . L, 2008, Constitutional law of Papua New Guinea, UPNG Press, PNG, p. 27. Kwa E . L, 2001, PAPUA NEW GUINEA CONSTITUTIONAL LAW, UPNG Printery, PNG, p. 10. PNG Law Report. UNIVERSITY OF PAPUA NEW GUINEA CONSTITUTIONAL LAW TUTORIAL TWO NAME: LETIARA PELLIE ID NUMBER: 20131227 PROGRAM: LLB 1 TUTORIAL DAY: WEDNESDAY 5-6PM TUTOR: LECTURER: AFREN MENEI DUE DATE: 22/03/13 ——————————————– [ 1 ]. Kwa E L 2008 Constitutional Law of Papua New Guinea UPNG press PNG p27 [ 2 ]. PNG Law report [ 3 ]. Kwa L E 2001, PAPUA NEW GUINEA CONSTITUTIONAL LAW, UPNG Printery PNG p, 10.