PNG Law Reports 1994
[1994] PNGLR 428
N1209
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
LUCAS ROIKA,
ACTING FOR AND ON BEHALF OF THE WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
(IN SUSPENSION)
V
THE ELECTORAL COMMISSIONER OF PNG;
THE MINISTER FOR PROVINCIAL AFFAIRS AND VILLAGE SERVICES; AND
THE CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
Mount Hagen
Woods J
12 April 1994
21 April 1994
6 May 1994
CONSTITUTIONAL LAW - Provincial government - Suspension - Suspension after provincial general elections due - No limit on power of National Executive Council to suspend.
CONSTITUTIONAL LAW - Provincial government - Suspension - Continuation well past date of expiry of term - Contrary to Constitution - Holding of elections ordered - Constitution ss 187F and 155.
PRACTICE AND PROCEDURE - Jurisdiction - Holding of elections ordered - Section 155(4) Constitution.
Facts
The plaintiff, premier of the suspended Western Highland Provincial Government, sought declarations challenging the suspension and the withdrawal of writs for a general provincial election ordered by the first defendant prior to the suspension, and orders that the suspension be lifted and elections for the Provincial Assembly be held forthwith. The provincial government had been provisionally suspended on 21 December 1992, at a time when the term of the Provincial Assembly had expired and the Electoral Commissioner should have been organising a general provincial election. The plaintiff argued that pending the election, the provincial government was "in transition" and that it should not have been suspended, as it was not effectively in office while in a transitional state. As a result of the suspension, the members of the Provincial Assembly were continuing to receive emoluments, even though their terms had expired almost two years before.
Held
1.       There is no limit on the power of the National Executive Council to suspend a provincial government, even after its term has expired and prior to the holding of general provincial elections.
2.       The withdrawal of writs for the provincial general election was not unconstitutional.
3.       While the original suspension of the Provincial Government was valid, its continuation well past the time when the full term of the Provincial Government would have expired was contrary to the spirit and intent of s 187F of the Constitution. In order to restore the province to normal, the Court acted under s 155 of the Constitution to order the Electoral Commissioner to take all necessary steps to hold elections for the Western Highlands Provincial Assembly, forthwith.
Cases Cited
Enga Provincial Government (in suspension) v The State (1994) unnumbered, unreported NC.
SCR No 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151.
Counsel
P Kunai, for the plaintiff.
D Kombagle, for the first defendant.
P Ame, for the second and third defendants.
6 May 1994
WOODS J:  This is an originating summons seeking orders challenging the actions by the National Executive Council in suspending the Western Highlands Provincial Government.
As a preliminary point, I will comment on the status of the plaintiff as a party competent to take these proceedings. There has been no objection to his status as a plaintiff, but in view of the ruling in the National Court in OS 67 of 1994 Enga Provincial Government (in suspension) v The State, where it was held that a provincial government in suspension has no power to function alone, but can only function with the authority of the National Executive Council, I feel I must consider this. I am satisfied that the plaintiff, Lucas Roika, as a former member of the Provincial Government, in fact he was the Premier, and still being paid as a suspended member, has sufficient status and interest to take these proceedings in his own name and style, as he has done.
HISTORY
Elections for a new Western Highlands Provincial Assembly were scheduled to be held in May-June 1992.
However, as this timetable would clash with the holding of the National Elections scheduled for July 1992, various discussions and actions were taken by the different bodies concerned. It appears that the plaintiff's office was considering appropriate action to defer the provincial elections for a year. As well, the Minister for Provincial Affairs and the Electoral Commissioner may have separately considered the matter. In January 1992, the Electoral Commissioner formally gazetted notices deferring the provincial elections for the Western Highlands until after the completion of the 1992 National Elections.
In the meantime, the Western Highlands Provincial Assembly had passed an amendment to the Western Highlands Constitution, extending the life of the provincial parliament by one year.
In December 1992, the Electoral Commissioner issued writs for the Western Highlands Provincial Elections. It appears that he may not have considered the implication of the earlier amendment to the Western Highlands Constitution extending the life of the Assembly by one year. He was immediately advised that the amendment may have extended the life of the current Assembly by one year, so he immediately withdrew the writ.
However, the interpretation was challenged before the National Court. On 21 December 1992, the National Court declared that the intention of the Western Highlands Provincial Assembly in extending the life of the Assembly by one year was not to apply to the term of the then current Assembly but rather was to apply to the term of the next Assembly after the planned elections.
This ruling seemed, therefore, to suggest that the withdrawal on 8 December of the writ issued on 3 December was precipitous. However, on all the evidence before me, it appears that there may have been some confusion of intentions and actions by the different parties involved.
Everything then seemed to have been thrown into the melting pot by the suspension of the Western Highlands Provincial Government on 21 December 1992.
There was an application to the National Court early in 1993 in OS 36 of 1993, seeking orders that the suspension was unconstitutional and seeking orders for the elections for which the writs had been issued on 3 December to be proceeded with. That action was dismissed on the basis that the administrative process of suspension and re-establishment had not been exhausted.
PLAINTIFF IS SEEKING THE FOLLOWING RELIEF
1.       A declaration that the power to suspend a provincial government can only be exercised when a provincial government is effectively in office and not when a provincial government is in transition.
2.       A declaration that the withdrawal of the writs issued for the Western Highlands Provincial Government elections on 3 December 1992 by the first defendant was and is unconstitutional.
3.       A declaration that the provisional suspension of the Western Highlands Provincial Government by the National Executive Council was and is unconstitutional.
4.       An order directing the second and third defendants to lift the suspension of the Western Highlands Provincial Government forthwith.
5.       An order directing the first and second defendants to conduct the elections for the Western Highlands Provincial Assembly forthwith.
6.       Costs of this action.
The first declaration sought refers to the Provincial Government in transition. However, I have not been referred to any legislative use of the word "transition" in this situation. The plaintiff seems to suggest that as the current term of four years had already expired, the Provincial Government was still only in existence in a transitional status pending the holding of fresh elections. Thus, it could not be held to be effectively in office, and a suspension can only occur when it is effectively in office during the relevant term. The submission goes on to suggest that it is an absurd interpretation to allow a provincial government to be suspended when it is about to go out of existence by way of fresh elections, because otherwise, as is the case here now, you have the absurd situation of provincial members still being on the payroll but under suspension when their term had expired almost two years ago. Whilst there appears to be some merit in the latter conclusion, I find no merit in the suggestion that, after the strict term has expired and pending the fresh elections, a provincial government is only in transition and there is less than a full government. There is no basis for such a conclusion. The simple fact is that until a new government comes in and takes up office following the return of writs, the existing government and members are still in office and perform the same functions and enjoy the same benefits as given to members. There is no lesser status or condition.
The second declaration sought relates to the withdrawal of the writs issued on 3 December 1992. I am satisfied on all the evidence before me that there may have been some confusion as to what the situation was, where separate action had been taken by the Electoral Commissioner and the Provincial Assembly. And until there was the ruling made by the National Court on 21 December, the Electoral Commissioner was entitled to be unsure of the position. Now, with hindsight, perhaps the writs should have continued and not been withdrawn on 8 December. But by the time the ruling was obtained, the National Executive Council had suspended the government.
At this stage, there appears to be a gap in the legislation. To put it simply, as the plaintiff submits, why suspend a provincial government that is about to go out of existence by way of fresh elections following the expiration of its term? The suspension here was not because of a war or national emergency. It appears from the wording of Decision NG 89/92 of the National Executive Council to have been because of alleged mismanagement or corruption.
The power to suspend provincial governments is contained in s 187E of the Constitution.
"187E. Suspension of provincial governments
(1)      Where:
(a)      there is wide-spread corruption in the administration of the province; or
(b)      there has been gross mismanagement of the financial affairs of the province; or
(c)      there has been a breakdown in the administration of the province; or 
(d)      there has been deliberate and persistent frustration of, or failure to comply with, lawful directions of the National Government....
the National Executive Council may suspend the Provincial Government concerned, subject to confirmation by a simple majority vote of the Parliament.
(2)      An Organic Law may make provision for and in respect of the procedures to be followed in the exercise of the powers under Subsection (1).
(3)      An Organic Law may make provisions for further defining any matter referred to in Subsection (1)...
(4)      The National Executive Council may suspend a provincial government that cannot carry out its functions effectively because of a war or of a national emergency declared under Part X affecting the province or the whole of the country.
(5)      While a provincial government is suspended, its powers and functions are vested in and shall be exercised by or on behalf of the National Executive Council, in accordance with an Organic Law.
(6)      Where a provincial government is suspended:
(a)      in the case of a suspension under Subsection (4), the Minister responsible for provincial affairs shall, as soon as practicable and in any event not later than the first meeting of the Parliament after the suspension, table in the Parliament a report on the suspension, the reasons for it and the circumstances of it; and 
(b)      at each meeting of the Parliament during the suspension the Minister responsible for provincial affairs shall report to the Parliament on the measures taken to re-establish the provincial government."
As I have noted above, this suspension was originally challenged before the National Court early in 1993 in case OS 36 of 1993; however, the application was dismissed.
It has not been put to me that this case today is just a repeat of that earlier application. However, I must endorse certain aspects of the ruling made in that case, which suggests that there was no irregularity in the original suspension. There is nothing in the Constitution limiting the power to suspend to a strict reference of the term of an assembly exactly from the date of the return of writs for that original assembly, and thereby there is no law or rule which states there can be no suspension during the period "in transition" pending fresh elections.
Can this Court consider that a suspension for mismanagement that is effected in the closing days of the term of office, and which is then continued and renewed for such an excessive period, goes against the whole purpose of s 187E and, thus, becomes an error? It almost appears that this is not a suspension of the particular government but rather the suspension of the system of provincial government, which is not within the intent and purpose of s 187E. I note that the State has practically conceded in its submissions before me that, with hindsight, perhaps the writ for the elections issued on 3 December should not have been withdrawn.
There appears to have been misunderstandings and different views being taken at the time, such that I cannot declare that the withdrawal of the writs issued on 3 December was unconstitutional at the time it was withdrawn.
The third relief sought is that the provisional suspension was and is unconstitutional. That has already been covered in the ruling in OS 36 of 1993, and I cannot go past that.
The fourth relief sought depends on a ruling on the third relief and is, therefore, covered above.
The final relief sought is for the elections to be conducted. Whilst this relief seems to be dependent on the ruling in three, above, I am satisfied that on the basis of the submissions made and facts and history of the matter, this relief can be looked at independently of the answers to any of the earlier reliefs sought.
I am satisfied that this application to the court is based on a different set of facts and history than that involved in any of the earlier applications to the court, challenging the suspension of provincial governments. Most of the other cases challenge the reasons for the suspension or whether all the proper procedures have been followed. However, in this case before me today, we have a situation, as I highlighted above, of a provincial government being suspended after its proper term of office had expired and as the province was heading into fresh elections for a new assembly and government. And the continuation of this suspension means that we have what appears to be the absurd situation of members still being paid as suspended members over a year after their term of office would have expired.
Does the Constitution say anything to help here and cover this situation? Section 187F sets out how a provincial government can be re-instated. However, this section only refers to the period of nine months and subject to any further extensions. In the case SCR No 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151, the Supreme Court was considering re-establishment and s 187F; however, it appears that they were not faced with a re-establishment over a year after the expiry of a term. As Kapi DCJ said at 158:
"If there is no extension under s 187F(3) and elections are not held, and the suspension is allowed to expire under s 187(4), the members return and retain their seats until the expiration of the term."
Amet J said at p 166, "the provincial government is entitled to resume office with full authority and to run its full term of office".
At p 168, Amet J quoted from the Constitutional Planning Committee Final Report, "Every effort should be made to restore a province in which the government has been suspended to normal as soon as possible". He added:
"The spirit of these provisions is that once it was found necessary to suspend a provincial government, a power which is to be exercised as a very last resort measure, then the national government must take all steps necessary to restore or re-establish it into effective operation once again within prescribed time limits".
At p 170, Amet J said:
"My answer to this question, consistently with my discussions of Questions 1 and 3, must be that the provincial government and the members are restored to office for the balance of their regular term, if any be left yet to run."
In the above references I am emphasising the reference to "balance of regular term" or "to run its full term" because, whilst I am certain that provincial government must be restored to the province, it is not simply the lapse of the suspension and return of the suspended members. Their terms have expired.
I, therefore, find that the continuation of this suspension well past the time when the full term of the government would have expired is contrary to the spirit and intent of the Constitution s 187F, and it is, therefore, necessary for this court to act as it is empowered to do under Constitution s 155 and make appropriate orders or declarations.
Because the "regular" or "full" term of the provincial government of the Western Highlands has now long expired, I do not think it is appropriate to make any order for the restoration of the suspended government. However, to restore the province to normal, it is necessary that the writs for provincial elections be re-issued as soon as possible.
I order the Minister for Provincial Affairs and Village Services and the Electoral Commissioner to take all necessary steps to hold elections for the Western Highlands Provincial Assembly forthwith.
Lawyer for the paintiff: Kunai & Company.
Lawyer for the first defendant: Pato Lawyers.
Lawyer for the second and first defendant: Solicitor-General.