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Roika v Electoral Commissioner of Papua New Guinea [1994] PGNC 11; N1235 (17 June 1994)

Unreported National Court Decisions

N1235

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 52 OF 1993
LUCAS ROIKA - Plaintiff
V
THE ELECTORAL COMMISSIONER OF PNG - 1st Defendant
THE MINISTER FOR PROVINCIAL AFFAIRS & VILLAGE SERVICES - 2nd Defendant
THE CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL - 3rd Defendant

Mount Hagen

Woods J
17 June 1994

PROVINCIAL GOVERNMENT - enforcement of Court Order against the State - Contempt proceedings against the State - Court must make such orders as are reasonable and necessary.

Counsel:

P Kunai for the Plaintiff

D Kombagle for the First Defendant

P Ame and K Fraghi for the 2nd and 3rd Defendants

INTERLOCUTORY RULING

17 May 1994

WOODS J: is an application to seek seek enforcement of the Judgement of the Court given on 21 April 1994 Unreported N1209 ordering the reinstatement of the system of Provincial Government in the Western Highlands by the holding of elections for a new Provincial Assembly.

Enforcement against the State is a difficult matter. There is special legislation which protects the State from the normal enforcement procedures as any normal society expects the State to operate in accordanch the laws and assist the people where required and comply with the orders of its Courts.

However in this case there has been no indications by the State authorities that there is any foreseeable plan to reinstate Provincial Government in the Western Highlands by the holding of elections.

Whilst s. 155 of the Constitution gives the court substantial powers to make such orders as are necessary in the circumstances and whilst the philosophy of the Constitution is that it may be necessary for the court in the circumstances of Papua new Guinea to be imaginative and inventive, there must be limits.

A possible procedure for the courts to use to enforce compliance with its orders is contempt proceedings however I am sure that the court cannot gaol the National Executive Council for contempt. Perhaps iatter of failure lure to pay State debts or on issues of money contempt proceedings could be taken against the Secretary for Finance.

I am satisfied that the Electoral Commissioner and inister have done their besr best to try and comply with the order of the Court however they are now unable to proceed further because of the failure of the Secretary for Finance to allocate the funds or the failure of the NEC to make the appropriation.

I must allow a reasonable time for the State to arrange for elections. I do not expect thactions ions can be organised in a matter of weeks after my judgement in April, I would be prepared to allow some months. Howeveshould always have bave beeious to the State that elections should have been planned fned for by last year at least if not this year and therefore appropriationunds should have been allowed for.

I will allow more more time for the appropriation of funds for the elections and for the Electoral Commissioner to set a reasonable timetable. But ife is any failure to e to act it may be necessary for this court to consider the extent of its powers under s. 155 to ensure a proper Government in the Province in accordance with the Constitutnd the Organic Laws. 160; And i be necessary fory for me to consider that even though the mandate of the former suspended Government has run out through the passage of time they may still be an appropriate body representing the people under the organic Law.

If there is no firm indication of any funds and reasonable programme for the holding of the provincial elections by the 22nd July 1994 then the Court and the people may be entitled to assume that there will be no funds for an election this year and I will have to consider a long term solution to the absence of a proper Government in the Province.

This application is therefore returnable before me on Friday 22 July 1994.

Lawyer for the Plaintiff: P Kun>

Lawyer for the Fthe First Defendant: D Kombagle

Lawor thor the 2nd and 3rd Defendants: P Ame and K Fraghi