[1999] PNGLR 12

PAPUA NEW GUINEA

[national court of justice]

JOHN MOMIS; AND
BOUGAINVILLE PROVINCIAL GOVERNMENT

V

NATIONAL EXECUTIVE COUNCIL AND OS

waigani: woods j
12 and 15 February 1999

Constitutional law – Provincial Governments – Suspension of - Decision a discretionary matter for NEC – Whether judicial review appropriate – Procedure not exhausted – Duty of Parliament.

Facts

The plaintiffs applied for a judicial review under Order 16 of the National Court Rules of a decision of the National Executive Council suspending the Bougainville Provincial Government on 1st January 1999. The Minister for Provincial and Local-level Governments acting under s 187E(1) of the Constitution and s 58 of the Organic Law on Provincial Government and Local-Level Governments submitted a report to the National Executive Council and after considering it the NEC decided to provisionally suspend the Bougainville Provincial Government with effect from 1st January 1999.

Held

1.	The role and place for judicial review is well stated in the case Kekedo v Burns Philp [1988-89] PNGLR 122 that judicial review is concerned, not with the decision but with the decision-making process and the circumstances under which such review is available are where the decision making authority exceeds its powers, commits an error of law, commits a gross breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. 

2.	Where a ground for provisional suspension of a provincial government as specified in s 187E(1) of the Constitution exists, a decision to provisionally suspend the provincial government is entirely within the discretion of the National Executive Council and is only open to judicial review where it can be shown that the National Executive Council exceeded or abused its powers or made a decision which no reasonable authority could have made. Proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedures provided for in the Organic Law on Provincial Government have not been completed or exhausted. The State v Kapal [1987] PNGLR 417 followed.

3.	The Court should not interfere at this stage in a decision involving a subject, which is clearly an Executive function, and where the Parliament must be the body that has the overriding say but has yet to consider the action. 

4.	The leave application was therefore dismissed.

Papua New Guinea cases cited

Kekedo v Burns Philp [1988-89] PNGLR 122.
The State v Kapal [1987] PNGLR 417.

Other case cited

CreedNZ Inc v Governor-General [1981] 1 NZLR 172.

Counsel

A Jerewai, for the plaintiffs.
J Kawi, for the defendants.

15 February 1999

Woods j. The plaintiffs are seeking leave to apply for judicial review under Order 16 of the National Court Rules of the decision of the National Executive Council on or about the 1st January 1999 provisionally suspending the Bougainville Provincial Government. 

The Bougainville Provincial Government is a Provincial Government that was to be established under the Organic Law on Provincial Government and Local-Level Governments. By certain amendments to that Organic Law the Bougainville Provincial Government was not to come into operation firstly before 1st January 1998 and then 1st January 1999. 

However on 1 January 1999 the National Executive Council met and considered a report from the Minister for Provincial and Local-Level Governments and acting under Section 187E (1) of the Constitution and s 58 of the Organic Law it decided to provisionally suspend the Bougainville Provincial Government with effect from the 1st January 1999. The Constitution s 187E (1) states that "Where a Provincial Government or a Local-Level Government undermines or attempts to undermine the authority of the National Parliament or the national unity, the National Executive Council may provisionally suspend the Provincial Government or the Local-Level Government concerned subject to confirmation by an absolute majority vote of the Parliament." 

The Organic Law details the procedures to be followed for such action. 

It is submitted that the procedures outlined in the Organic Law were not followed nor was there in existence a ground within the Constitution Section 187E to justify the exercise of the power. 

The role and place for judicial review is well stated in the case Kekedo v Burns Philp [1988-89] PNGLR 122 where it is stated that judicial review is concerned not with the decision but with the decision-making process and the circumstances under which such review is available are where the decision making authority exceeds its powers, commits an error of law, commits a gross breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuses its powers. 

So what is this decision that is sought to be reviewed. It is a decision by the Government of the day in a matter where there has been years of civil disturbance, military conflict, social disruption, great loss of life and destruction of property and no effective government in the manner envisaged by the Constitution and the Organic Law. And where many agencies both domestic and international have put a lot of work and effort into the reaching of a peaceful resolution and a return to normalcy and peaceful existence. Against this background the National Executive Council, the government of the country has decided that the people and the Province as a whole is not in a position to support and maintain a provincial government in the form envisaged under the Organic law and that the institution of such a Provincial Government could undermine the delicate processes currently under operation for a lasting solution. 

What can be the role of the Court in this situation. Is it the role of the court to carefully examine the strict legal interpretation of the powers of the government of the day in such a delicate situation where it could be emphasised that the solution can only lie with the good intentions and the desires of the elected representatives of the country? And the Organic Law in Section 58 requires the Minister responsible for provincial government to forward to the Speaker for presentation to the Parliament the report and the decision of the National Executive Council to provisionally suspend and Parliament itself must consider the suspension and vote whether to confirm the suspension. 

I note certain statements in the case The State v Kapal [1987] PNGLR 417.

Where the Supreme Court held:

"1.	Where a ground for provisional suspension of a provincial government as specified in s 187E(1) of the Constitution exists, a decision to provisionally suspend the provincial government is entirely within the discretion of the National Executive Council and is only open to judicial review where it can be shown that the National Executive Council exceeded or abused its powers or made a decision which no reasonable authority could have made.

2.	Proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedures provided for in the Organic Law on Provincial Government have not been completed or exhausted."

And I note the reference by Kapi DCJ in the above case to a statement from CreedNZ Inc v Governor-General [1981] 1 NZLR 172:

"The willingness of the courts to interfere with the exercise of discretionary decisions must be affected by the nature and subject matter of the decision in question and by consideration of the constitutional role of the body entrusted by each statute with the exercise of the power. Thus the larger the policy content and the more the decision making is within the customary sphere of the elected representative the less well equipped the courts are to weight the considerations involved and the less inclined they must be to intervene."

And further as Kapi DCJ noted here in PNG: "The discretion to suspend a provincial government and the power to review such a suspension has been given by law to the elected representatives of the people". An elaborate system has been set up under the Organic Law on Provincial Government, which sets out the manner in which the National Executive Council may suspend a provincial government. The Organic Law also provides for a system of reviewing the correctness of the decision. First the National Executive Council makes a decision to suspend the provincial government, the matter is then referred to the National Parliament either to be confirmed or rejected." 

And as a further consideration when considering the relevance and position of judicial review in this type of case I go back to principles enunciated in the Kekedo v Burns Philp case: "In the exercise of the discretionary power to grant or refuse an application for judicial review the following considerations may be relevant:

(a)	the public policy considerations behind particular legislative enactments;

(b)	the socio-political circumstances and aspirations of the country;

(c)	other practicalities of the procedures for judicial review and statutory review such as speed of hearing; and 

(d)	whether the matter depends on some particular or technical knowledge which is more readily available to the statutory review body."

I am only considering an application for leave but I must still at this stage with the limited arguments that come in such an application realise that judicial review of its very nature must be an exceptional occurrence and the reasons must be obvious. 

Following from the statements in the Kapal case above I must find that the Court should not interfere at this stage in a decision involving a subject which is clearly an Executive function and where the Parliament must be the body that has the overriding say but has yet to consider the action. I must refuse this application at this stage and therefore dismiss the application.

Of course by what the Minister for Bougainville Affairs and the National Executive Council has endorsed about the determination of the Government to bring a lasting solution and the consciousness of the Government to abide by the constitutional procedures it must be incumbent on the Minister and the National Executive Council and the Speaker of Parliament to find that these are exceptional circumstances to ensure that there is a meeting of Parliament as soon as possible so that the elected representatives can do their duty and properly consider the action taken and proposed by the Government and whether the operation of a Provincial Government in the form required under the Organic Law could undermine the national unity in the terms of the Constitution Section 187E.

For these reasons, the leave application is therefore refused.

Lawyer for the applicant: A. Jerewai.
Lawyer for the respondent: Solicitor-General.