Papua New Guinea Law Reports - 1984
[1984] PNGLR 191
SC275
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
DANLEY TINDIWI FOR AND ON BEHALF OF THE MEMBERS OF THE SUSPENDED ENGA PROVINCIAL GOVERNMENT
V
JOHN NILKARE MINISTER FOR PROVINCIAL AFFAIRS AND THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani
Bredmeyer Kaputin Amet JJ
29 June 1984
27 July 1984
CONSTITUTIONAL LAW - Power to suspend provincial government - Principles of natural justice - Application of - Constitution, ss 59, 60 - Organic Law on Provincial Government, ss. 90, 91, 91A.
PARLIAMENT - Provincial government - Power of National Executive Council to suspend - Principles of natural justice - Application of - Constitution, ss. 59, 60 - Organic Law on Provincial Government, ss. 90, 91, 91A.
The Organic Law on Provincial Government, ss. 90 and 91 provide as follows:
“90.    Powers of minister where he is of the opinion that a ground for suspension may exist.
Where the Minister is of the opinion that a ground or grounds for suspension of a provincial government exist or may exist, he may:
(a)      require the head of the provincial executive to appear before him and give an explanation of any matters which have come to the attention of the Minister; and
(b)      report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government.”
“91.    Duties of national executive council on submission of report, etc.
The National Executive Council shall consider any report and comments submitted under Section 90(b) and may:
(a)      cause the Minister to make further inquiries; and
(b)      require the head of the provincial executive concerned to attend before it and make explanations.”
Section 91A provides that after considering the reports in s. 90(b) and s. 91 the National Executive Council may suspend a provincial government.
Held
(Kaputin J. dissenting): (1) The Minister has a discretion under s. 90 on whether to:
(a)      require the head of the provincial executive to appear before him and give an explanation of any matters which have come to the attention of the Minister; and
(b)      report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government.
(2)      The word “and” separating subs. (a) and subs. (b) of s. 90 should be read as “and/or”.
(3)      The Minister’s discretion under s. 90(a) to require the head of the Provincial Executive to appear before him and give an explanation overrides the principles of natural justice which are part of the underlying law of Papua New Guinea and does not contravene s. 59 of the Constitution.
(4)      The National Executive Council has a discretion under s. 91(b) on whether to require the head of the Provincial Executive concerned to attend before it and make explanations.
(5)      The discretion given to the National Executive Council under s. 91(b) overrides the principles of natural justice contained in the underlying law of Papua New Guinea and mentioned in s. 59 of the Constitution.
Cases Cited
Durayappah v. Fernando [1967] 2 A.C. 337.
Iambakey Okuk v. Fallscheer [1980] P.N.G.L.R. 274.
Ridge v. Baldwin [1964] A.C. 40; [1963] 2 W.L.R. 935; [1963] 2 All E.R. 66.
Reg., Ex parte (ex rel. Warringah Shire Council); Re Barnett (1967) 70 S.R. (N.S.W.) 69.
Ward v. Williams (1955) 92 C.L.R. 496.
Reference
This was a reference to the Supreme Court pursuant to s. 18(2) of the Constitution by McDermott J. of the following questions:
“(1)    Does the Minister pursuant to s. 90 of the Organic Law on Provincial Government have a discretion to:
‘(a)     require the head of the provincial executive to appear before him and give an explanation of any matters which have come to the attention of the Minister; and
(b)      report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government.’
or is the requirement mandatory.
(2)      If the Minister has the discretion under s. 90 of the Organic Law on Provincial Government does he also have the discretion to only report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government under s. 90(b) or must he comply with both s. 90(a) and (b) of the Organic Law on Provincial Government.
(3)      If the Minister has the discretion under s. 90(a) of the Organic Law on Provincial Government does that power, where he:
‘is of the opinion that a ground or grounds for suspension of a Provincial Government exist or may exist, he may,
(a)      require the head of the Provincial Executive to appear before him and give an explanation of any matters which have come to the attention of the Minister;’
contravene the Principles of Natural Justice enshrined in Constitution, s. 59(1) and (2), in that he must require the head of the Provincial Executive to appear and give an explanation of any matters which have come to his attention in the terms of s. 90(a) of the Organic Law on Provincial Government?
(4)      Does the National Executive Council pursuant to s. 91 of the Organic Law on Provincial Government have a discretion to:
‘(b)     require the head of the Provincial Executive concerned to attend before it and make explanations,’
or is the requirement mandatory?
(5)      If the National Executive Council have the discretion under s. 91 to comply with s. 91(b) of the Organic Law on Provincial Government, does that power contravene the principles of Natural Justice enshrined in s. 59(1) and (2) of the Constitution, in that it must require the head of the Provincial Executive to appear and give an explanation of any matters which have come to its attention through the Minister?”
Counsel
K. Y. Kara, for the plaintiff.
A. Tadabe, for the defendant.
Cur. adv. vult.
27 July 1984
BREDMEYER J: This is a reference to the Supreme Court by McDermott J. under s. 18(2) of the Constitution. It arose out of the provisional suspension of the Enga Provincial Government by the National Executive Council (the N.E.C.) by a notice published in the National Gazette of 9 February 1984. The provisional suspension was made under s. 91A of the Organic Law on Provincial Government (the Organic Law). Prior to that suspension the Minister for Provincial Affairs reported to the National Executive Council under s. 90 of the Organic Law that in his opinion there was a ground for suspension in that there had been gross mismanagement of the financial affairs of the Enga Province. The Minister cited as evidence in support of his opinion the Auditor-General’s report of 25 April 1983 on the accounts of the Enga Provincial Government. The Premier and all members of the Provincial Government were suspended but continued to receive their salaries. The suspended Premier on behalf of all the suspended members brought an action by way of originating summons in the National Court seeking declarations that the suspension of the Provincial Government was illegal in that neither the Minister for Provincial Affairs under s. 90(a) of the Organic Law, nor the National Executive Council under s. 91(b) of that law, sought an explanation from the Premier before proceeding with the suspension. As the case involved questions relating to the interpretation of a Constitutional law within the meaning of s. 18(2) of the Constitution, McDermott J. rightly referred them to the Supreme Court for resolution.
Sections 90 and 91 of the Organic Law on Provincial Government were replacement sections added by the Organic Law on Provincial Government Amendment No. 2 (Suspension and Re-establishment) Law (No. 2 of 1983), and s. 91A was a new section added by the same amendment. Those three sections provide as follows:
“90.    Powers of minister where he is of the opinion that a ground for suspension may exist.
Where the Minister is of the opinion that a ground or grounds for suspension of a provincial government exist or may exist, he may:
(a)      require the head of the provincial executive to appear before him and give an explanation of any matters which have come to the attention of the Minister; and
(b)      report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government.”
“91.    Duties of national executive council on submission of report, etc.
The National Executive Council shall consider any report and comments submitted under Section 90(b) and may:
(a)      cause the Minister to make further inquiries; and
(b)      require the head of the provincial executive concerned to attend before it and make explanations.”
“91A.  National executive council may suspend a provincial government.
Where, after considering:
(a)      the report and comments submitted under Section 90(b); and
(b)      any further report or explanation which it may have required under Section 91,
the National Executive Council is of the opinion that:
(c)      a ground for suspension exists; and
(d)      the matter can only be put right by suspension,
the National Executive Council may by notice in the National Gazette provisionally suspend a provincial government.”
Mr Kara, counsel for the plaintiff, has argued that the word “may” used in s. 90 means “shall”, that the Minister must require the head of the Provincial Executive to appear before him and give an explanation of the matters which have come to the attention of the Minister and that the Minister must then report to the N.E.C. under s. 90(b). Section 91 is very similar in structure to s. 90. It provides that the N.E.C. “may (a) ... and (b) ...” so, consistent with his argument on s. 90, Mr Kara has argued that “may” in s. 91 is also mandatory; that the N.E.C. must cause the Minister to make further inquiries and must require the Premier to attend before it and give explanations.
The sections which call for our interpretation are contained in the Organic Law on Provincial Government which is by definition a constitutional law under the Constitution. Schedule 1.5 provides the canon of interpretation:
“(1)    Each Constitutional Law is intended to be read as a whole.
(2)      All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”
I begin by trying to read the Organic Law and the sections of the Constitution which begat it as a whole. By s. 187E of the Constitution the N.E.C. may provisionally suspend a Provincial Government for any one of four grounds which include widespread corruption in the administration of the province, and mismanagement in the financial affairs of the province. That suspension must be confirmed by a simple majority vote of Parliament. And an Organic Law may make provision for the procedures to be followed in exercise of the power of suspension. Under s. 91A of the Organic Law the N.E.C. can suspend a Provincial Government. There are certain preliminary requirements to suspension set out in s. 90 and s. 91. When the N.E.C. has suspended a Provincial Government that is called a provisional suspension. Notice of it and copies of the reports and the material on which it is based are then sent to Parliament. Within seven days of the next meeting of Parliament the Minister must move a motion asking Parliament to confirm the suspension: s. 91B. That motion is automatically referred to the Permanent Parliamentary Committee on Provincial Government Suspensions which must investigate and report on the matters giving rise to the suspension. The Committee then tables its report and within seven days of that tabling, a vote on the motion to confirm or reject the provisional suspension must be taken. If no vote is taken within that seven days, the suspension lapses (s. 91E). If the vote is taken the suspension is either confirmed or disallowed. By s. 187F of the Constitution fresh elections are to be held within nine months of the suspension. The suspended members are eligible to stand again for election. It is clear from these provisions that members of a suspended Provincial Government who are upset by their suspension are not devoid of remedies. There are two remedies open to them, apart from coming to court: they can persuade the Parliamentary Committee to report against the suspension, and they can lobby members of Parliament to vote against the suspension. Alternatively and additionally, in nine months time they can stand for re-election.
Normally in a statute the word “may” means may; it is permissive and confers a discretion. It contrasts with the word “shall” which, when used in a statute, normally means shall or must; it is imperative or mandatory. In some cases the word “may” in a statute will be interpreted to mean “shall” but that is the exception and not the rule. I agree with Mr Kara’s citation from the Australian case of Ward v. Wiliams (1955) 92 C.L.R. 496 at 505 where the High Court cites with approval the following passage:
“The authorities clearly indicate that it lies on those who assert that the word ‘may’ has a compulsory meaning to show, as a matter of construction of the Act, taken as a whole, that the word was intended to have such a meaning.”
I think the best starting point for exegesis is s. 91A where the N.E.C. is required to consider:
(a)      the report and comments submitted under s. 90(b); and
(b)      any further report or explanation which it may have required under s. 91.
It is clear from that section that the N.E.C. must have the Minister’s report on the grounds of suspension before it. The section is silent on whether the N.E.C. must have the report of the explanations given by the Premier to the Minister under s. 90(a). The omission of any reference to s. 90(a) suggests strongly to me that those explanations are not essential. Secondly, s. 91A in referring to any further report or explanation which it may have required under s. 91 clearly implies that a further report from the Minister under s. 91(a) or an explanation from the Premier under s. 91(b) are both purely optional. If a further report from the Minister and an explanation from the Premier under s. 91 were imperative then the wording would be different. If they were imperative s. 91A(b) would have been drafted “the further report and explanation required under s. 91”. If, as I think is the case, the N.E.C. under s. 91A can suspend a Provincial Government without obtaining a further report based on further inquiries from the Minister and without calling the Premier before it and receiving his explanations, then that is a strong indication of the correct way to interpret s. 90 because, as I have said earlier, s. 91 and s. 90 are in the same form. Each section says “may (a) ... and (b) ...”. It is clear to me when I read s. 91A with s. 91 that the two courses of action mentioned in s. 91 are purely optional: that the N.E.C. may take those courses or not as it wishes. And I believe that s. 90 should be interpreted in the same way. I consider that the word “may” in s. 90 means that the Minister (a) may require the Premier to give an explanation, and (b) may report to the N.E.C. The section makes neither (a) nor (b) mandatory or essential. But when I read s. 91A with s. 90 the report to the N.E.C. is essential if the N.E.C. wants to suspend the Provincial Government. That report is essential not because “may” in s. 90 means “must”, but because s. 91A(a) requires the N.E.C. to consider that report before it can suspend the Provincial Government.
Mr Kara’s argument on s. 90 is not only contrary to the context, particularly the context or the help in interpretation which comes from s. 91A, but is contrary to common sense and cannot I think have been intended by Parliament. His argument is that where the Minister is of the opinion that a ground for suspension of a Provincial Government may exist he must call the Premier before him and receive his explanation. He also says that the word “and” separating subs. (a) and subs. (b) means exactly that so that the Minister must call the Premier before him and then he must report to the N.E.C. on any matters which appear to constitute a ground for suspension. I say that is contrary to common sense because I consider that the Minister is not obliged to act. If someone reports to the Minister that there is corruption in the province or financial mismanagement it seems clear to me that the Minister may choose not to do anything about it. He is not like a judge or a magistrate who, after he has found certain facts in favour, say, of a plaintiff, and has found that there are no answering facts or matters in favour of the defendant, must go on and give a decision in favour of the plaintiff. The Minister is a politician and also a member of the National Executive Council exercising the executive power of government and it seems clear to me that he need not act on any report. Even if he is of the opinion that there is a ground for suspension he may, for considerations which he need not reveal, choose not to act. And if he does decide to act and calls the Premier before him and the Premier gives him a good explanation on the matters raised, I consider that the Minister can let the matter stop there. I consider that it is not essential for the Minister to go on and report the matter to the N.E.C. In other words the “and” separating subs. (a) and subs. (b) really means “and/or”. It seems unnecessarily complicated for a Minister who has received a good and satisfactory explanation from the Premier on the allegations raised to be required to report to Cabinet that there are no grounds for suspension. The commonsense thing is that if the Minister receives a good explanation from the Premier, he lets the matter rest there. It seems to me that under subs. (b) the Minister is only required to report when there are grounds for suspension. He is not required to report that there are no grounds for suspension. I am satisfied that “may” in s. 90 means “may”, and that (a) and (b) there are optional; that the Minister may require the Premier to give an explanation and/or he may report to the N.E.C. that there are grounds for suspension. By s. 91A the N.E.C. must have the Minister’s report under s. 90(b) before it can suspend. But there is no requirement that it must have an explanation from the Premier either under s. 90(a) or s. 91(b) before it can suspend. I consider that it is optional under these sections whether the Minister or the N.E.C. obtains an explanation from the Premier. That is an option open to the Minister and/or to the N.E.C. but it is not an essential preliminary requirement before suspending a Provincial Government under s. 91A.
Mr Kara next argued that if the Minister had a discretion under s. 90(a) whether or not he required the Premier to give an explanation then that contravened the principles of natural justice enshrined in s. 59 and s. 60 of the Constitution. The principles of natural justice are not a basic right as contained in Div. 3 of the Constitution (ss. 32-58). Those basic rights override any statute, and a statute can contravene those rights. The principles of natural justice apply at a different level in the hierarchy of laws. Sections 59 and 60 are found in Div. 4 of the Constitution and s. 60 casts on the courts the duty of developing the principles of natural justice “in the development of the rules of the underlying law in accordance with Sch. 2”. The principles of natural justice are thus part of the underlying law and as such they come below the Constitution, Organic Laws, Acts of Parliament in the hierarchy of laws established by s. 9. Thus if an Organic Law, for example, expressly states that no right of hearing is given to a person then that clearly overrides the principles of natural justice which are part of the underlying law. This view is supported by the opening words of s. 59: “Subject to this Constitution and to any statute ...”. Section 59 defines those principles of natural justice in a non-exhaustive way but that is subject to the Constitution and to any statute. The word “statute” is defined in Sch. 1 of the Constitution to mean “an Act of the Parliament, an Emergency Regulation or a provincial law, and includes a subordinate legislative enactment under any such law”. The definition does not include an Organic Law. But it is clear from those opening words of s. 59 and from s. 60 that the principles of natural justice are part of the underlying law and as such by s. 9 are inferior in status to an Organic Law or a statute. This means, as I think it does in this case, that if the Organic Law makes it optional whether the Minister or the N.E.C. hears the Premier prior to suspension, then this Court has no right to say that as a matter of underlying law the Minister and/or the N.E.C. must hear the Premier. The Organic Law, by making it optional, impliedly excludes a natural justice right to be heard.
Mr Kara cited to us Iambakey Okuk v. Fallscheer [1980] P.N.G.L.R. 274 as an authority for the proposition that the Premier should be given a right to be heard. In that case, Fallscheer was the General Manager of the National Airline Commission and had been dismissed by the Minister for Transport. Section 23 of the National Airline Commission Act (Ch. No. 244) was silent on how a dismissal from office should be made. The trial judge and the Supreme Court on appeal implied into that section the common law requirement of a right to be heard. Andrew J. at 277 said:
“Upon all of those considerations I presume that the legislature intended the power conferred on the Minister by s. 23(2) to be qualified by the principles of natural justice. I can find no other indication in the National Airline Commission Act to suggest that the legislature intended to exclude the principles of natural justice.”
That case can be distinguished from the legal position in the present case in three ways. The first is that the National Airline Commission Act was silent on the principles of natural justice, whereas s. 90 and s. 91 of the Organic Law, in making it optional whether the Premier is heard or not, impliedly excludes the Premier from having a right to be heard. Secondly, Fallscheer lost his livelihood, whereas in this case the Premier and the members of the Provincial Government have not lost their salaries, houses or cars. Thirdly, Fallscheer had no other remedy open to him. He was forced to sue for wrongful dismissal and claim that the dismissal was wrongful because he had not been given a right to be heard, because no other remedy was open to him. In this case the Premier and his members have political remedies open to them. They can lobby members of the National Parliament not to confirm the suspension and, if that fails, they can stand for re-election.
Similarly, I consider that the leading English case of Ridge v. Baldwin [1964] A.C. 40 can be distinguished on the basis that Ridge, who was a Chief Constable and who was dismissed by a Watch Committee for having been negligent in the discharge of his duties, lost his livelihood and his pension rights — the latter being of great importance to him as he was aged fifty-nine and had been in the police force for thirty-three years. The majority of the law lords in that case held that the common law and the relevant police regulations both required giving Ridge an opportunity to be heard.
The case of Durayappah v. Fernando [1967] 2 A.C. 337; [1967] 3 W.L.R. 289, a decision of the Privy Council on appeal from Ceylon, was not cited to us but I consider that I should mention it in order to distinguish it. In that case the Minister for Local Government received complaints about the Jaffna Municipal Council and sent a Commissioner to inquire into the complaints. The Commissioner spent a few days doing this, had full access to all the minutes of the council, but did not speak to any councillor and did not receive their views. He then reported to the Minister and the Minister dissolved the council. The Minister acted under a section of a statute which did not expressly give any right to be heard. The Privy Council applied the audi alteram partem rule and voided the dismissal. I consider that this case is distinguishable in that our sections, s. 90 and s. 91 of the Organic Law, expressly make it optional whether the Premier is heard prior to suspension. Also, in that case, the dissolution of the Council involved the confiscation of all its properties and the Privy Council regarded it as an important principle that no man should be deprived of his property without having an opportunity of being heard. No confiscation of property is involved in the case of the Enga Provincial Government.
I would answer the questions as follows:
(1)      The Minister has a discretion under s. 90 of the Organic Law on Provincial Government on whether to:
“(a)    require the head of the provincial executive to appear before him and give an explanation of any matters which have come to the attention of the Minister; and
(b)      report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government.”
(2)      The word “and” separating subs. (a) and subs. (b) of s. 90 should be read as “and/or”.
(3)      The Minister’s discretion under s. 90(a) of the Organic Law on Provincial Government to require the head of the Provincial Executive to appear before him and give an explanation overrides the principles of natural justice which are part of the underlying law of Papua New Guinea and does not contravene s. 59 of the Constitution.
(4)      The National Executive Council has a discretion under s. 91(b) of the Organic Law on Provincial Government on whether to require the head of the Provincial Executive concerned to attend before it and make explanations.
(5)      The discretion given to the National Executive Council under s. 91(b) overrides the principles of natural justice contained in the underlying law of Papua New Guinea and mentioned in s. 59 of the Constitution.
KAPUTIN J: The questions referred to this Court pursuant to s. 18(2) of the Constitution have already been quoted above (at 192). However, if I can say so at the outset, a misconception of the proper construction of s. 90 has already emerged from the beginning as can be seen from how question 1 is framed. The misconception has arisen from what I can see that everyone could be reading s. 90 upside down. The relevant sections are as follows:
“90.    Power of minister where he is of the opinion that a ground for suspension may exist.
Where the Minister is of the opinion that a ground or grounds for suspension of a provincial government exist or may exist, he may:
(a)      require the head of the provincial executive to appear before him and give an explanation of any matters which have come to the attention of the Minister; and
(b)      report to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of the provincial government.”
“91.    Duties of national executive council on submission of report, etc.
The National Executive Council shall consider any report and comments submitted under Section 90(b) and may:
(a)      cause the Minister to make further inquiries; and
(b)      require the head of the provincial executive concerned to attend before it and make explanations.”
First, I would like to say this, that any reference to any authority elucidating upon the interpretation of the word “may” can be misleading. The proper way to approach statutory interpretation is to read the section itself, and to see where the word “may” is placed in the construction of the clauses in the provision. Such would be aided by an understanding of the division which covers the area concerned and the thrust of the Constitution as a whole. In this case it relates to the powers of suspension of provincial governments.
In my opinion the proper construction of s. 90 is this. The word “may” in question is not in relation to or serving as conjunctive to subs. (a) and subs. (b) but that it is there in regard to the subject matter of the major opening clause — which is to say that where the Minister is of the opinion that a ground for suspension of a provincial government exist or may exist, he may or may not act to institute suspension proceedings. That is where the discretion lies. For instance he may have been entertaining the opinion for some time that a ground for suspension may have existed but the discretion is still with him whether or not to act. Once the Minister has decided to act, that is, to institute suspension proceedings, he must then comply with subs. (a) and (b) as a matter of course. There is no longer any discretion either to take step (a) only or step (b) only as he did in the present case. He must comply with both (a) and (b) and this must be right for a number of reasons.
First, the drafting is a little confusing in that there is no second “may” to serve as a discretion either to perform (a) only or (b) only as the Minister did in the present case. In the absence of any discretion the Minister had no choice but to comply with both requirements. This should be the correct reading of the section. The interpretation the majority opinion took is to use the word “may” in a double-barrel technique. It uses “may” in the normal way for the main subject matter, as well as using it as a discretion also to do either (a) or (b) only, which to my mind is absurd. If the section is read as it should be, no one can miss its correct interpretation.
Secondly, (a) and (b) are joined by the word “and” and although according to statutory constructions it can be interpreted as “and” “or” it should not be so. The whole section and division must be read together and the plain understanding from reading it gives no other interpretation other than to mean (a) “and” (b). The section was so clear that had the legislature intended that either one of them only to be done it would have said so by a simple inclusion of the word “or”. In this case the word “and” was chosen to be used and there can be no doubt about it.
The third reason which strengthens the construction I take is this. Once the Minister has decided to take action for suspension he must comply with (a) and (b). The section does not mean that once he has decided to take action for suspension he can do (a) first and if he is satisfied that suspension is not warranted, decides there and then not to proceed further. If it can be clearly understood that the Minister is responsible for the good running of provincial governments, he therefore bears the constitutional duties and responsibilities to see that they are managed and run properly. And before he ever entertains any opinion for suspension, even right up to the stage of entertaining an opinion for suspension, he would have had constant monitoring of the state of the provincial governments and if there were signs of mismanagement he would have been advising and issuing instructions to a provincial government concerned to take corrective measures or else. It is at this stage that mutual correspondence would have been going on between the Premier and the Minister. But once the Minister reaches the stage in his opinion that suspension is the last corrective measure available, he then exercises his discretion under s. 90 to invoke the power of suspension. Once the power of suspension is invoked the Minister can no longer decide unilaterally after hearing an explanation from the head of the provincial executive under subs. (a) not to take the matter further to the N.E.C. If he chooses to drop the matter there, it would not only be wrong in law but it would be an onerous decision that the Minister would not dare make as he would be held responsible for any consequences if he does not report the matter to N.E.C. under subs. (b). But as I have pointed out, any mutual consultation and decisions in relation to the benefits and good of the provincial government, should have taken place before the power of suspension was set in motion. This is in fact being done.
The fourth reason which should confirm the construction put forward is in relation to the principles of natural justice and the spirit of consultation to which the Constitution has given recognition. Section 59 states:
“59.    Principles of Natural Justice
(1)      Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
(2)      The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.”
The matter before us involves administrative matters and I consider that the principles of natural justice equally applies. It is therefore doubtless to see why the section has been drafted as such. In fact s. 90 and s. 91 are an attempt to take account of such principles. Section 90(a) is to allow the head of the provincial executive to give an explanation or to show cause why suspension proceedings should not be taken so that the Minister can include it in his report to the N.E.C. So while the Minister can collect his own facts as the basis for his report, he must also include any submissions from the provincial government concerned. Before the N.E.C. considers the report from the Minister, the report must contain submissions from both parties, otherwise, it would be a one sided affair unknown in a liberal democracy such as we have inherited from Westminster. Both parties must be heard before the N.E.C. as it is the sole body which decides whether or not to suspend a provincial government. The Minister’s requirements under s. 90(a) and (b) are an attempt to comply with the principles of natural justice so that Cabinet when deciding the matter could not be accused of exercising naked powers. In fact s. 90 requires the Minister to do the preliminary case, that is to prepare the case for Cabinet to decide upon. This means that he must follow principles known to the law. If he does not, Cabinet decision would be a nullity if Cabinet fails to also call the head of the provincial executive under s. 91(b). The Minister also makes a decision which is a recommendation to Cabinet for suspension, which means that he must abide by s. 90(a) and (b). I consider that the action taken under s. 90 and s. 91 to be of the one process, which is a proceeding for suspension, and certainly the principles of natural justice must be complied with somewhere along the line. Of course, it may be that the facts for the grounds for suspension may have been so overwhelming and obvious that any explanations from the head of the provincial government would be of no value, or that he would appear before the Minister but say nothing. This could be the case. But the point is that as a matter of law the head of the provincial executive must be afforded the opportunity to show cause why his government should not be recommended for suspension. The important thing is that at least he has been given the opportunity to give an explanation, as a matter of formality, which can be recorded in the report. But whether what he says is worthless or he simply remains silent, is beside the point. If he is called to take advantage of the opportunity and he refuses, that is his bad luck. Proceedings must continue. The requirement cannot be said to be a hindrance, which may have prompted the Minister to go straight to step (b).
I do not think I should waste time discussing loss of rights, interests and benefits as the basis for the application of the principles of natural justice. Those matters are important but they are not the sole criteria. Surely a close reading of s. 59 gives no shadow of doubt that the principles do apply in the instant case. It must be remembered that even in administrative law matters, the principles of natural justice apply, unless clearly expressed to be otherwise by written law. The Minister is just a party to this action except that he is the one empowered to initiate and bring the matter before Cabinet. Other than that the provincial government is a party to this action as well. It is true that the Minister is given inquisitorial powers to obtain independent facts about the state of the provincial government. However, at the hearing before the N.E.C. the adversary system still applies as can be seen from the way s. 90 and s. 91 etc. are framed, which sections require that the views of both parties must be heard. In my view the action of the Minister and the N.E.C. clearly contravened the principles of natural justice. The case of Durayappah v. Fernando [1967] 3 W.L.R. 289, a decision of the Privy Council on appeal from Ceylon, directly applies to the present case. It is on all fours with this one. I must say that after I had written my opinion I discovered this authority cited by my brother Bredmeyer J. It strongly supports the arguments I took, and I urge that the wisdom of this highest authority must be taken into account.
The idea of consultation also strengthens the argument further in that both parties must be consulted and their respective cases be included in the report to be deliberated upon by the N.E.C. The old s. 90 reads:
“90.    Motion for Suspension
(1)      A motion for the suspension of a provincial government:
(a)      shall not be moved unless the Head of State, acting with, and in accordance with, the advice of the National Executive Council, has made a report to the Speaker of the National Parliament, for Parliament, that, after consultation or attempted consultation with the provincial executive, the National Executive is satisfied that:
(i)       a ground for suspension set out in Section 187E(1) of the National Constitution exists; and
(ii)      the matter cannot be corrected unless the provincial government is suspended; and
(iii)     the provincial government ought, in the national interest or in the interest of the people of the province, be suspended accordingly,
giving the reasons for the opinion; and
(b)      may be moved only by a Minister.
(2)      A motion for the suspension of a provincial government established under Subdivision B, may not be withdrawn or dealt with until the Commission has reported to the National Parliament as required by that Subdivision unless:
‘(a)     in the case of the withdrawal of the motion — the Parliament, by an absolute majority vote, approves its withdrawal, or
(b)      the Commission fails to report as required by that Subdivision.’ ” (Emphasis added.)
It can be seen from this that the N.E.C. must have consultation or attempted consultation with the provincial executive before the N.E.C. decides on the matter. As far as I am concerned, the new s. 90 merely refines that old section into a clear and a more workable clause to be followed. It does not change the original concept underlying the approach for suspension. Consultation and consensus embodies the Melanesian way of resolving things and this spirit cannot be just thrown out the window in an important matter such as this case. The spirit of the Melanesian ways should be the strong guiding component in the development of our indigenous jurisprudence (in regard to the principles of natural justice) as the basis of our underlying laws: s. 20(2) of the Constitution.
Further when you look at s. 91 the idea of both parties to be heard is there. The section says the N.E.C. shall consider any report and comments submitted under s. 90(b) and may:
“(a)    cause the Minister to make further inquiries; and
(b)      require the head of the provincial executive concerned to attend before it and make explanations.”
There can be no doubt from that, that if the N.E.C. is satisfied with the report it will not order steps (a) and (b) to be taken. But if it is not satisfied with the report from the Minister it will order steps (a) and (b) to be carried out. That is where the discretion lies. The discretion in s. 91 is in relation to the inadequacy of the report from the Minister and not as to whether step (a) only or step (b) only is to be taken. As I have said once the N.E.C. has exercised its discretion to call for more information before it decides upon the matter, steps (a) and (b) must then be taken according to how the section is constructed and meant. The N.E.C. has a discretion under s. 91 to require (a) and (b) on the understanding that the Minister shall have taken such steps in the first place under s. 90. Steps (a) and (b) of s. 90 are therefore mandatory to cover any possible breach of natural justice if Cabinet exercises its discretion under s. 91 not to require steps (a) and (b) to be taken again. The point I want to make if the discretion is exercised is this: First, there is an “and” and not an “or” joining (a) and (b), meaning that both have to be done. Secondly, there is an ever present requirement that the head of the provincial executive must be allowed the opportunity to make explanations before the fate of the government is decided upon. If there was no need for it then subs. (b) would not have been included. If for instance the N.E.C. called the head of the provincial executive concerned to attend before it and make explanations, it would be incongruous if the Minister did not bother about calling him to do the same in the first place. If however, the N.E.C. called him and the Minister did not, that may validate the defect overlooked by the Minister. However, in this case this was not done either. So the whole proceedings before the N.E.C. was in breach of the principles of natural justice.
As I am in the minority it is not necessary for me to discuss the effects of the defect in this case. However, I could only say in passing that the entire suspension proceedings could be voidable at the election of the Enga Provincial Government as it was the party affected in this case. It could be so because the constitutional requirements were not complied with in the first instance to commence the suspension proceedings, and upon which rests the basis of action by the N.E.C. and Parliament. As a corrective measure to be taken the Parliament could pass a law to validate the suspension of the Enga Provincial Government, that is, if the suspension proceedings do not have to start all over again. The oversight not to comply with s. 90(a) may not appear significant. However, it begs the question why there are laws in the first place. One of the principles of democracy, nevertheless, rests upon s. 90 in regard to the audi alteram partem rule.
I simply could not understand why the bunch of government legal advisers failed to advise the Minister of the correct requirements to be followed in this case. I agree that the way s. 90 is drafted could be a little confusing, especially as to where the word “may” was placed. However I am sure a close reading of the section should give a clear understanding of how it should be interpreted. The Government’s action in this case is a serious matter as it will have a far-reaching effect on it, and the Government’s legal advisers should be held responsible for giving wrong advice on the subject to the Government.
I do not have to frame my answers to suit each question. The answers are clear from my judgment itself.
AMET J: I have had the advantage of reading the judgment of Bredmeyer J. and I agree generally with the reasons and the answers he has given to the questions posed in this reference. I should however, like to add just a few remarks of my own.
Firstly, it was submitted by Mr Kara for the plaintiff that the word “may” in s. 90 should be construed to mean “shall”. It was submitted that once “the Minister is of the opinion that a ground or grounds for suspension of a Provincial Government exist or may exist” he has no discretion not to do anything about it and just sit on the matter as it were. The Minister is, as a matter of public policy obliged to act on his opinion, that it is mandatory upon him to take action, it was submitted. Mr Kara further argued that the actions the Minister is obliged to take are stipulated in subss (a) and (b), that it is mandatory upon the Minister to comply with requirements of both subss (a) and (b), he has no discretion to do either (a) or (b).
The effect of this submission is that the Minister has no discretion after forming the opinion that a ground or grounds for suspension exist or may have existed. He “shall” require the head of the provincial executive to appear before him to give explanation and then he, the Minister “shall” report to the National Executive Council.
This result would seem to me to be quite counter-productive to the natural justice right to be heard, urged under s. 90(a). If one purpose for seeking a mandatory right to be heard is the hope or opportunity to satisfactorily explain the matters which may have been the basis for the Minister’s opinion, and to persuade the Minister to reconsider his opinion and not to take the matter any further or not to report to the National Executive Council and under subs. (b), then it becomes quite pointless if after hearing the most satisfactory explanation under subs. (a) the Minister has no discretion but to report to the National Executive Council.
I consider the Minister must have a discretion, after forming an opinion, whether to take the matter any further. It must be to a provincial government’s advantage, if it can then show or demonstrate that such an opinion was misguided or wrong. Similarly, I consider that the Minister must further have the discretion whether to do either (a) or (b) or both (a) and (b). If the Minister proceeds to invoke subs. (b) only then it may be to the disadvantage of the Provincial Government, initially. If the Minister proceeds to invoke subs. (a) only but does not proceed to subs. (b) then it is to the advantage of the Provincial Government. If the Minister in his discretion decides to invoke (a) and proceeds to apply (b) after hearing the head of the provincial executive then the provincial executive head has at least been heard.
I consider that by allowing the Minister discretion the Provincial Government at least has some opportunity of persuading the Minister from proceeding any further, whereas by Mr Kara’s submission the report to the National Executive Council by the Minister becomes a fait accompli. I consider further that at this preliminary stage of the process, there is no real loss to the plaintiff such that the requirement for natural justice is imperative. The Minister merely makes a report of his opinion and the basis for it.
In relation to the construction of s. 91 I hold the same view and agree with the reasons of Bredmeyer J. The ultimate sanction against the Provincial Government is only a suspension until fresh elections are called. Members continue to receive their full entitlements, all that they have been deprived of is the power to govern and legislate. They have ample opportunity to lobby support to lift the provisional suspension amongst members of the National Parliament and indeed before the committee which puts the final seal on their fate, the Permanent Parliamentary Committee on Provincial Government Suspension, during its inquiry. If the provisional suspension is subsequently confirmed by the National Parliament, such as in this case, each member can recontest in the ensuing elections.
I therefore answer the questions in the same way as Bredmeyer J.
Lawyer for the plaintiff: K. Y. Kara.
Lawyer for the defendant: T Konilio, Principal Legal Adviser.