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Tindiwi, for himself and on behalf of the Members of the Enga Provincial Government (In Suspension) v Prime Minister [1994] PGNC 10; N1221 (19 May 1994)

Unreported National Court Decisions

N1221

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 67 OF 1994
DANLEY TINDIWI FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE ENGA PROVINCIAL GOVERNMENT IN SUSPENSION
V
PRIME MINISTER FOR HIMSELF AND ON BEHALF OF THE NATIONAL EXECUTIVE COUNCIL
AND
THE STATE - SECOND DEFENDANT

Waigani

Salika J
19 May 1994

CONSTITUTIONAL LAW - Organic Law on Provincial Governments - Provincial Government Provisionally Suspended - S. 187E of the Constitution - S. 91B (1) (b) of the Organic Law on Provincial Governments - Permanent Parliamentary Committee on Provincial Governments yet to table its report to Parliament - The Prime Minister and the National Executive Council have no authority or power to compel the Permanent Parliamentary Committee on Provincial Government to table its report to Parliament - Issue of a writ in the nature of a mandamus issued to the Parliamentary Committee.

Counsel

M Cholai for the Plaintiff

W Akuani for the Defendants

JUDGMENT

19 May 1994

SALIKA J: The plaintiff has moved the court for the following orders and declarations by way of a notice of motion:

(i) An order that the first Defendant shall do all that is necessary and within its powers to allow the Report of the Permanent Parliamentary Committee on Provincial Government suspension for the Enga Provincial Government to be tabled by the speaker of the National Parliament in the next session of Parliament and that a vote be taken on the report of the said Committee.

(ii) A declaration that the Provincial Government was provisionally suspended by the second defendant through the first defendant on the 12th March, 1993 which suspension had lapsed on the 4th of May 1993 following the Minister for Provincial Affairs default in complying with the provisions of the Organic Law on Provincial Governments.

(iii) An order that following the lapsing of the provisional suspension on 4 May 1993, the defendants are to arrange for immediate reinstatement of the Enga Provincial Government.

(iv) A declaration that the subsequent vote in Parliament on 24 November 1993 to extend the provisional suspension of the Provincial Government for a further six (6) months from 12 December 1993 is null and void.

In seeking those orders and declarations the plaintiff alleges that the National Executive Council provisionally suspended the Enga Provincial Government without complying with the provision of the Organic Law on Provincial Government and the PNG Constitution.

The Plaintiff in the alternative alleges that the National Executive Council provisionally suspended the Enga Provincial Government without proper justification and without sufficient grounds as required under the PNG Constitution and the Organic Law on Provincial Governments.

The plaintiff further claims that the second defendant through the first defendant has not made any arrangements to establish the Enga Provincial Government and that in so doing is acting contrary to the provision of the Organic Law on Provincial Government and the PNG Constitution.

The starting point for any provincial government to be suspended is s.187E of the PNG Constitution. This section provides that the National Executive Council may provisionally suspend a Provincial Government where:

(a) There is widespread corruption in the administration of the province.

(b) There was been gross mismanagement of financial affairs of the province.

(c) There has been a breakdown in administration of the province.

(d) There has been deliberate and persistent frustration of or failure to comply with lawful directions of the National Government.

(e) The provincial government has deliberately and persistently disobeyed applicable laws including the Constitution, the Organic Law, Provincial Constitution or any National Law.

S. 89 of the Organic Law supplements and reinforces s. 187E of the Constitution. S. 90 of the Organic Law then gives power to the Minister for Provincial Affairs to require the leader of the Provincial Executive to appear before him and give explanation of any matters which have come to the attention of the Minister. Before the Minister requires the head of the provincial executive to appear before him he (the Minister) must have formed the opinion that grounds for suspension exist. After this the Minister then reports to the National Executive Council on any matters which appear to constitute a ground or grounds for suspension of that Provincial Government. Pursuant to s. 91 of the Organic Law the National Executive Council then considers the report and comments and it may then cause the minister to make further inquiries and require the head of the Provincial Executive to attend before it and make explanations. After going through the s. 90 and s. 91 procedures if the National Executive Council considers that grounds for suspension exist and that the matter can only be put right by suspension the National Executive Council then by notice in the National Gazette provisionally suspends the Provincial Government.

All these procedures of s. 89 and s. 90 of the Organic Law had been carried out and the Enga Provincial Government was provisionally suspended by the National Executive Council on the 12 March 1993.

On the 5 May 1993 a motion was proposed by the Acting Minister for Provincial Affairs Mr Martin Thompson for Parliament to confirm the suspension of the Enga Provincial Government. It is this motion the plaintiff claims is not in compliance with s. 91B (1) (b). I will deal with that a little later. The motion was not debated or passed but stood referred to the Permanent Parliamentary Committee on Provincial Government Suspensions. This means the Permanent Parliamentary Committee on Provincial Governments Suspensions has to carry out investigation pursuant to s. 91C of the Organic Law.

The Committee in compliance with the Organic Law investigated the grounds for the suspension of the Enga Provincial government. It prepared a report which was to be tabled in Parliament in its November 1993 sittings. For some reason the report was not tabled in November 1993. However Parliament instead suspended the Enga Provincial Government for a further 6 months from 12 December 1993. The plaintiff argues this further suspension is not proper in that Parliament has no power to further suspend it.

I deal firstly with the argument by the plaintiff that the motion by Mr martin Thompson the Acting Minister for Provincial Affairs on 5 May did not comply with the provisions of s. 91B (1) (b) and that as such the provisional suspension must lapse because the motion by the Minister on 5 may did not comply with the provisions of s. 91B (1) (b). The Organic Law is silent on the effect of non compliance with s. 91B (1) (b). I am guided though by Schedule 1:16 which says that where in a Constitutional law a time limit is imposed for the doing of an Act (whether it is positive or negative) and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable. The defendants in that regard rely on an affidavit filed by Mr Roy Yaki the Minister for Transport who is also leader of Government Business. Mr Yaki in his affidavit says the other two sitting days prior to 5 may 1993 were fully allocated to other Parliament business both the Government and private. He further says he listed the business of Suspended Enga Provincial government at the earliest practicable date for consideration. Without evidence to the contrary I accept Mr Yaki’s assertion.

Schedule 1:16 (1) in my view is applicable here because there has been non compliance with a mandatory time period by Parliament in carrying out its duty under s. 91B (1) (b) of the Organic Law on Provincial Government. However, because the Organic Law itself is silent on the effect of such non compliance I invoke the provisions of Schedule 1:16 (1) and (2). I am of the view that it is proper and reasonable in the circumstances.

I do not accept the submission by the plaintiff that because of non compliance with s. 91B (1) (b) suspension of the Enga Provincial Government lapses. This is because the Organic law is silent on the effect of non compliance with the provisions of s. 91B (1) (b).

The plaintiff's second submission is that the further suspension of the Enga Provincial Government by the National Parliament in November 1993 is not proper in that it (the National Parliament) does not have the power to further provisionally suspend provincial governments.

The plaintiff argues that if the Provincial Government is to be further provisionally suspended it should be the National Executive Council. The Organic Law and the Constitution however do not confer any power to the National Executive Council to extend provisionally suspensions. Once a provincial government is provisionally suspended s. 91B process takes place. In my view once that process takes place the matter is taken out from the jurisdiction of the National Executive Council to the National Parliament. Once it goes into Parliament it becomes a business of Parliament, the National Executive Council cannot take it back.

In this case the matter has gone to the National Parliament. The Acting Minister for Provincial Affairs has moved a motion to confirm the suspension. The motion stands referred to the Parliaments own committee which is the Permanent Parliamentary Committee on Provincial Government Suspensions. The Committee is duty bound to investigate into and report on the matter giving rise to the provisional suspension of the provincial government.

Unfortunately, and I think this is where an amendment is necessary, the Organic Law does not give the committee any time limit within which the committee must present its report to the Speaker for tabling to parliament. The Organic Law is silent on when the Speaker must table the report after he receives it from the committee. For the moment the committee is not compelled by law to furnish a report to the Speaker for tabling to parliament as soon as possible. The Committee, as is being experienced by some suspended provincial governments has the tendency to prolong the suspensions by its inaction. As a result the people are left without their elected governments for unnecessarily long periods. It is this Committee which has caused anxiety and frustration in the case of the Enga Provincial government and other governments that have been suspended.

In the meantime Parliament cannot do much as its own committee is not performing its task and so it is forced to extend the suspension. S.187F of the Court provides for re-establishment of the provincial governments within 9 months from the effective date of provisional suspension. The 9 months can be extended by periods, each not exceeding 6 months by parliament. The plaintiff argues that the extensions under s. 187F (3) of the Constitution only relate to confirmed suspensions and not provisional suspensions. If I accept that argument it would mean that there is no procedure provided for extending provisional suspensions under the Constitution and the Organic Law. Parliament however, over the years has used s. 187F (3) of the Constitution to extend suspensions and I do not think there is anything wrong with using those provisions to extend the suspensions. Where the law does not provide for procedures Parliament is normally at liberty to adopt any reasonable procedure to suit itself.

The arguments by the plaintiff must fail and the orders and declarations he seeks must therefore fail too.

In relation to the plaintiffs first and second allegations in his notice of motion I am satisfied that the Minister for Provincial Affairs had formed an opinion that grounds for suspension existed and acted accordingly and subsequently the National Executive Council was also of the opinion that grounds for suspension existed and that the matter could only be put right by suspension. There is evidence in the annexure which shows that some grounds for suspension existed.

In relation to item 3 of its notice of motion I agree with the defendants submission that the first defendant has no power or authority over the Permanent Parliamentary Committee on Provincial Government Suspensions. The committee is catered for under s. 118 of the Constitution but established by its own Organic Law under s. 91D. The first defendant cannot re-establish the Enga Provincial Government because as it stands now it has no say on re-establishment. Only Parliament will decide, but Parliament cannot decide without the Permanent Parliamentary Committee report.

I refuse the orders and declarations sought.

I award costs to the 1st and 2nd defendants.

In the light of what has been happening I am considering invoking s. 155 (4) of the Constitution. That provision says that the Supreme Court and the National Court (I am sitting as the National Court) have an inherent power to make in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. In that regard I make the following orders which I think is proper and in the circumstances in the interest of justice.

The Court orders the Chairman of the Permanent Parliament Committee on Provincial Government Suspensions and its members to table its report at the next sittings of Parliament. Failure to do so will render the Enga Provincial Government reinstated. This may be the only way to get this particular committee to perform its Constitutional duty.

Lawyer for the Plaintiff: Cholai MC

Lawyer for the Defendants: Solicitor General