PNG Law Reports 1995
[1995] PNGLR 519
N1325
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
JOHN MIPO, ACTING FOR AND ON BEHALF OF ALL MEMBERS OF THE EASTERN HIGHLANDS PROVINCIAL ASSEMBLY
V
THE MINISTER FOR PROVINCIAL AFFAIRS AND LOCAL-LEVEL GOVERNMENTS; AND THE CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL
Mount Hagen
Injia J
21 April 1995
CONSTITUTIONAL LAW - Provincial government - Suspension - Financial mismanagement - Whether Provincial Assembly can circumvent suspension by dissolving itself and calling fresh elections - Intent and spirit of National Constitutions 187E(1) and 187D and Organic Law on Provincial Government s 6 - Power of National Executive Council and Parliament to suspend a Provincial Government for cause without interference.
CONSTITUTIONAL LAW - Provincial constitution - Eastern Highlands - Validity when in conflict with intention and spirit of National Constitution and Organic Law on Provincial Government.
Facts
Some 14 months before the end of its term of office, notice of a motion was given to dissolve the Eastern Highlands Provincial Assembly. Subsequently, the Provincial Government was provisionally suspended by the National Executive Council, and on the same day that the provisional suspension was published in the National Gazette, the Assembly resolved by the motion to dissolve itself. The Court was asked to determine whether the provisional suspension of the Provincial Government was effective in view of the Assembly having resolved to dissolve itself.
Held
1.       According to the Provincial Constitution, the effect of dissolving the Assembly was that there would be general provincial elections, but the members of the Provincial Government would continue in office until the return of the writs. The members would, therefore, remain members, and the resolution to dissolve would not affect other offices in the Provincial Government, such as the provincial executive and the office of the Premier.
2.       The facts showed that the resolution was clearly intended to circumvent the provisional suspension by the NEC and, therefore, to undermine the constitutional authority of the NEC and the Parliament. In so doing, the resolution was inconsistent with the intention and spirit of s 187E(1) of the National Constitution and was, therefore, invalid.
3.       The resolution affected only one arm of the Provincial Government, namely, the Assembly, but the provisional suspension affected the entire Provincial Government. The resolution was, therefore, inconsistent with the Constitution and the Organic Law.
4.       The plaintiffs had failed to challenge the decision of the National Parliament to confirm the provisional suspension, and the provisional suspension had been superseded by the confirmation by the Parliament. Their failure to challenge the decision was a fatal defect in the proceedings.
5.       The resolution dissolving the Assembly was invalid, and the decision of the National Parliament to suspend the Provincial Government was valid for all purposes.
Papua New Guinea cases cited
Haiveta v Wingti (No 3) [1994] PNGLR 197.
SCR No 3 of 1986: Reference by Simbu Provincial Executive [1987] PNGLR 151.
Counsel:
P Kunai with P Dowa, for the plaintiffs.
W Akuani with J Fraghi, for the defendants.
21 April 1995
INJIA J.: By originating summons, the plaintiffs seek two principal reliefs. First, they seek a declaration that the resolution passed by the Eastern Highlands Provincial Government Assembly (hereinafter, the Assembly) to dissolve itself and to call for fresh election in accordance with s 43(1)(c) of the Constitution of the Eastern Highlands Provincial Government (hereinafter, the Provincial Constitution) was, and is, valid and effective. Secondly, they seek a further declaration that the subsequent reinstatement and suspension of the Provincial Government by the National Executive Council (NEC) was null and void and of no effect. The other reliefs sought are consequential only.
A brief chronology of events giving rise to the action is as follows:
1.       Between 6 October to 3 November 1994, the third session of the Assembly was held. On 31 October, a notice of motion to dissolve the Assembly and call an early election was given. By this time, there were 14 months left of the Assembly’s regular, or full, term.
2.       On 10 October 1994, the first defendant had submitted a policy submission to the NEC recommending the suspension of the Provincial Government. The submission contained a summary of findings by the first defendant as to financial mismanagement of the province’s funds by the Provincial Government, which formed the basis for the proposed provisional suspension.
3.       On 2 November 1994, the NEC met and resolved to approve the first defendant’s recommendation to provisionally suspend the Provincial Government. The suspension was for a period of nine months. This was done in accordance with s 187E(1) of the National Constitution. This decision was gazetted on 3 November 1994. Pursuant to said gazettal notice, the provisional suspension was to come into effect from 7.45 am on 4 November 1994.
4.       On 3 November, at 2.45 pm, the Assembly resolved by a two thirds majority to dissolve itself and go for fresh elections in accordance with s 43(1)(c) of the Provincial Constitution. The main reason for the decision was to avoid the consequences of an impending provisional suspension by the NEC. Section 43(1)(c) provides that “a general provincial election shall be held ... if the Assembly by a two-thirds majority so decides.”
5.       On 3 November 1994, Mr Mipo, in his capacity as the Speaker of the Assembly, by letter notified the first defendant of the said resolution.
6.       On 4 November, at 7.45 am, the provisional suspension came into force.
7.       On 8 November, the first defendant referred the decision of the NEC, with supporting documents, to the Speaker of the National Parliament.
8.       There is no evidence from the defendants as to whether the said decision of the NEC was tabled in the November session of Parliament and whether the provisional suspension was confirmed by simple majority vote, pursuant to s 187E(1) of the National Constitution. This point was not made clear by the defendants. The plaintiffs say the provisional suspension was, in fact, confirmed and is currently in force. So I will proceed on that basis.
9.       It is not contested by the defendants that the resolution of the Assembly came into force one day before the provisional suspension came into force. Therefore, I will proceed on that basis.
At the outset, I note that the decision of the NEC to provisionally suspend the Provincial Government for cause is not questioned by the plaintiffs in these proceedings. Their main contention is that the powers conferred by s 187E(1) cannot be exercised in a vacuum which was created by a provincial parliament which had rendered itself defunct by virtue of the said resolution. Therefore, they say, the decision of the NEC is invalid.
It is also important to note that the plaintiffs do not challenge the subsequent confirmation of the provisional suspension by the National Parliament. It is being assumed by the plaintiffs that if this Court declares the provisional suspension invalid, then the confirmation thereof will automatically become invalid. However, I think that is an erroneous assumption. The decision of NEC is an executive decision, whereas the decision of the Parliament is not. Although the grounds which justified the provisional suspension would normally form part of the deliberations of the Parliament, the Parliament need not be bound by those grounds. The decision of the NEC being provisional only, it ceases to have effect as at the time the Parliament confirms the provisional suspension. I think the plaintiffs’ failure to challenge the confirmation of the provisional suspension means that the whole suspension is valid.
But that is not the end of the matter. The plaintiffs say that, whilst they accept the validity of the suspension, in law, it cannot operate to nullify the decision of the Assembly to dissolve itself and go for fresh elections. They say the rationale behind this is that the provisional suspension and the subsequent confirmation occurred after the Assembly resolution was passed and came into force. They say the NEC and the National Parliament cannot suspend a provincial government which no longer exists or has since become defunct by virtue of the provincial assembly having dissolved itself. They say the power to suspend a provincial government cannot be exercised in a vacuum. They say the decision was done in accordance with the Constitution of the province, and it must be respected and takes precedence over what the national government thinks is in the best interest of the province. They say the spirit of the National Constitution and the Organic Law on Provincial Government (hereinafter, OLPG) is clear; that is, to give power back to the people of the province to decide their own destiny, to have their own constitution, their own parliament and their own executive government, and to make their own decisions on matters affecting the province. They say the Eastern Highlands Provincial Government decided that it was in the best interest of the people of the province to dissolve the Assembly and go for fresh elections, and the decision of the NEC cannot stand against it.
The status of provincial governments, in particular the autochthonous nature of a provincial constitution and the government it defines and establishes, is clearly spelt out in the Constitution and the OLPG. These principles were canvassed by the Supreme Court in SCR No 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151. A provincial constitution is a Constitutional Law, or, more specifically, in the nature of an Organic Law: OLPG s 13. A provincial government consists of its own provincial assembly, its own provincial executive, and the office of the head of the provincial executive (The Premier): Constitution s 187C(2); OLPG s 15. It also has its own provincial secretariat: OLPG s 48, Laws passed by the provincial assembly have full force, faith and credit as laws: OLPG s 14. A provincial government has legal capacity to acquire and hold property and may sue or be sued: OLPG s 12.
But we must not forget that a provincial government exists within the constitutional framework of the National Constitution and the OLPG. And speaking of Constitutional Laws, it is well intended by the framers of the National Constitution and OLPG that the system of provincial government would exist and operate within the framework of the national government system and subject to the Constitution and OLPG, that they would operate side by side in a spirit of consultation and cooperation for the common good of all the people of this country.
It was also intended by the framers of the Constitution and founding fathers of our country that the Constitutional Laws of our country should be observed by the National Government and the provincial governments in both letter and spirit. This fundamental principle of our system of government has been recognised and given effect to in many decisions of this Court and the Supreme Court, including SCR No 3 of 1986, Reference by Simbu Provincial Executive, supra, and more recently in the case of Haiveta v Wingti (No 3) [1994] PNGLR 197.
There are various provisions in the Constitution, OLPG, and the Eastern Highlands Provincial Constitution which ensure that the actions, legislative or otherwise, of a provincial government, in this case the Eastern Highlands Provincial Government, are not inconsistent with the Constitution and OLPG. The first provision is s 6 of OLPG, which provides that the constitution of a province must not be inconsistent with National Constitution or the OLPG.
The second provision is s 187D(2) of the Constitution which provides:
“187D  - Inconsistency and justiciability of provincial laws.
(2)      Nothing in this Part authorizes the making of a provincial law, or authorizes any other action, that is inconsistent with -
(a)      this Constitution (and in particular with Division 3 (Basic Rights)); or
(b)      an Organic Law
and all questions as to such consistency are justiciable.”
(emphasis is mine)
The third provision is ss 2 and 7 of the Provincial Constitution, which provide:
“2.      This Constitution is subject to the National Constitutional Laws.
7.       This Constitution is the supreme law of the Province and all provincial laws, Acts, Regulations, Orders and all Acts of executive, judicial or administrative bodies of the Province that are inconsistent with this Constitution are to the extent of the inconsistency invalid and ineffective, but shall otherwise be valid.”
From reading together the above provisions of the National Constitution, the OLPG, and the Provincial Constitution, it is clear that any action of the Assembly which is inconsistent with the Provincial Constitution is invalid. In the same way, an act of the Assembly which is consistent with the Provincial Constitution but inconsistent with the National Constitution or the OLPG is invalid.
In the instant case, there is no doubt that the resolution passed by the Assembly is in accordance with s 43(1)(C) of the Provincial Constitution. But that is not the end of the matter. The question which we must ask of necessity is: Is the resolution consistent with the National Constitution or OLPG in both letter and in spirit?
This is the important issue which I must decide now. In order to decide this issue, I need to examine the intent and purpose behind the resolution. First of all, this is the first time in history of the Eastern Highlands that the first defendant set in motion a move to suspend the Provincial Government for financial mismanagement. It is also the first time in the history of the provincial government system that a provincial assembly had resolved to dissolve itself and hold fresh elections before the expiration of its full or regular term. Secondly, members of the Assembly and the provincial executive did not like the move in motion by the National Government to suspend their government. All those members who spoke on the motion emphasised this point. Rather than have the Provincial Government suspended by the National Government, They resolved to dissolve the Assembly and go for fresh elections. Thirdly, it was assumed by the Assembly members that, upon passing the resolution, the NEC and the National Parliament could not suspend a provincial government whose provincial assembly had dissolved itself and, thereby, rendered itself defunct. Fourthly, it was assumed by the members that dissolution of the Assembly automatically resulted in the dissolution of the entire Provincial Government system, including the provincial executive and the office of the head of the provincial executive. Fifthly, the Assembly members did not consider and make any provision for the continuity of the provincial government whilst waiting for the provincial elections.
There are several constitutional implications which flow from the resolution. I will first deal with the provisions of the Provincial Constitution. The members who were elected to the Assembly at a general election took office on the day the writs were returned: s 15. Section 17 provides for eight situations in which a member ceases to hold office, and a vacation of office pursuant to a resolution passed under s 43(1)(C) is not one of them. The only provision in s 17 which might be of assistance is s 17(a), which provides that a member ceases to be a member and his seat becomes vacant on the day the writs are returned following a general election. Under s 43(1)(C), a general provincial election shall be held if the Assembly, by a two-thirds majority, so decides. Looking at all these provisions together, it would seem that upon the dissolution of the Provincial Assembly on 3 November 1994, a general election was to be held, but then the members of the Provincial Government continued to hold their positions until the writs for that election were returned or, alternatively, at the expiration of the Provincial Government, whichever occurred first. It would also seem that the resolution did not affect the constitutional offices of the provincial executive, the office of the Premier and the secretariat of the province. Therefore, these offices still remained functional, with the persons holding those positions still being in office. The terms of the members of the provincial executive and the head of the provincial executive would determine either on the return of the writs of the provincial general election or upon the expiration of the regular term of the provincial government, whichever occurred first.
In relation to the National Constitution, there are several implications. First, the resolution was clearly intended to circumvent the decision of the NEC to provisionally suspend the Provincial Government, which process the first defendant had already set in motion as early as 10 October 1994. The decision was being made at the NEC’s meeting held on 2 November 1994. It is clear that all the members of the Assembly were well aware of the move by the first defendant and the deliberations and the decision of the NEC when they passed the resolution. The resolution clearly purported to circumvent, frustrate, or undermine the constitutional authority of the NEC and the National Parliament to suspend the Provincial Government. In my view, the resolution was inconsistent with the intention and spirit of s 187E(1), which empowers the NEC to provisionally suspend a provincial government for cause without interference by anyone. Therefore, the resolution, albeit consistent with the Provincial Constitution s 43(1)(C), is invalid.
Secondly, s 187E(1) refers to the suspension of a provincial government as a whole, comprising of the provincial legislature, the provincial executive, the office of the head of the provincial executive, and the secretariat of the provincial government. The resolution of the Assembly affected only one arm of the Provincial Government, whereas the suspension covered the entire provincial government institution. The decision of NEC and the National Parliament is comprehensive and in total compliance with the Constitution and OLPG; the resolution is not. The resolution, whilst it is in strict compliance with s 43(1)(C) of the Provincial Constitution, is inconsistent with the OLPG and the National Constitution, in that it seeks to isolate and dissolve one arm of the provincial government whilst the other arms of the provincial government remain functional. I think the resolution cannot stand in the face of the coherent and comprehensive decision of the NEC and the Parliament to suspend the Provincial Government.
Thirdly, the plaintiffs have only challenged the provisional suspension by the NEC, but not the confirmation decision of the National Parliament. Section 187E(1) of the Constitution vests the ultimate power of suspension with the National Parliament and not the NEC, whose decision is only provisional, or temporary. In my view, the decision of NEC expired at the time the National Parliament made the decision to confirm the suspension. The plaintiffs’ failure to challenge the decision of the Parliament is a critical anomaly in these proceedings, which is fatal to the plaintiffs’ case.
The plaintiffs have gone to lengths to address the need for the National Government to observe the intent and spirit of the Constitution and OLPG and allow the people of Eastern Highlands Province to choose to go to the polls through their elected leaders. I agree with them. However, it is equally true that where the exercise of a provincial power by a provincial assembly purports to circumvent or interfere with the exercise of the constitutional powers of the National Government in the perceived interest of the people of the province concerned and the nation as a whole, the provincial act must give way to the National Government’s decision. I am of the view that the resolution of the Assembly was intended to circumvent, interfere, or frustrate the exercise of the constitutional powers of the NEC and the National Government to suspend the Provincial Government for cause.
For the above reasons, I would dismiss the first and second claims in the originating summons. I would also dismiss the third and fourth claims, which are for consequential relief only. Consequently, I would declare the resolution of the Eastern Highlands Provincial Assembly null and void and of no effect whatsoever, ab initio. To put the matter to rest, I would also declare the decision of the NEC and the National Parliament to suspend the Provincial Government valid for all purposes.
The consequences following from my decision are:
1.       Upon the currency of the suspension now in force, all powers and functions of the suspended Provincial Government are vested in the NEC: OLPG s 99(3).
2.       During the currency of the suspension, the administrative affairs of the Provincial Government are to be run by its Administrator, Mr Ubum Makarai, and Mr Joshua Unua, as his deputy, pursuant to decision of the NEC made on 3 November 1994.
3.       Upon expiration of the period of suspension, which is nine months, commencing on 4 November 1994, pursuant to NEC decision of 2 November 1994, the suspended Provincial Government will be automatically re-instated unless the suspension is extended by the National Parliament by absolute majority vote: National Constitution s 187F(4). According to my calculations, the period of the current suspension will end on 4 August 1995. If there is no such extension, then the provincial members will return to office and serve the balance of the regular term: see SCR No 3 of 1986: Reference by Simbu Provincial Executive (supra).
There have been some arguments advanced by the defendants as to the standing of the plaintiffs to institute these proceedings. However, I think the entitling of the proceedings by the plaintiffs is in their private capacity, not on behalf of the Provincial Government (in suspension). Therefore, I allowed the plaintiffs to appear in their own right and prosecute their claim.
I make no order as to costs.
Lawyer for the plaintiffs: Kunai & Co Lawyers.
Lawyer for the defendant: Solicitor General.