N1239

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 212 of 1993

BETWEEN:

GULF PROVINCIAL GOVERNMENT (In Suspension)
Plaintiff

AND:

MINISTER FOR VILLAGE SERVICES AND PROVINCIAL AFFAIRS
1st Respondent

AND:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
2nd Respondent

Waigani: SHEEHAN, J.
1994: 15, 17, 21 & 25 MARCH

CASES CITED:
Pickins -v- British Railways Bd. (HLE) 1974 AC 765

Mr Soi for the Plaintiff
Mr Ame & Mr Ikosi for the Respondents

On 25 February 1994 His Honour Mr Justice Salika of the National Court of Justice made the following orders:-

1.	That pursuant to s 155(a) of the constitution the Permanent Parliamentary Committee on Provincial Government Suspensions, investigate the suspended Gulf Provincial Government FORTHWITH pursuant to s 91 C of the Organic Law on Provincial Government, chp 1 of the Revised Law and present the report to the Speaker of National Parliament for tabling at this current sitting of Parliament.

2. 	Failing to comply with the above order the Gulf Provincial Government will be automatically re-established by way of reinstatement

3. 	That the members of the suspended Provincial Government be paid their full benefits and entitlement where appropriate back dated to the time of provincial suspension.

Those orders followed the finding that the Permanent Parliamentary Committee whose duty was to investigate and report to the Parliament on the allegations which lead to the suspension of the Gulf Provincial Government, had been unduly dilatory in pursuing that task. 

At the time of the orders the Parliament was sitting, and on 8 March 1994, the last day of that session, the Deputy Chairman of the Permanent Parliamentary Committee tabled a report on the Gulf Provincial Government. A resolution was passed and later that day the Parliament then adjourned till May. 

On 10 March 1994 the Plaintiff gave notice of motion seeking orders to enforce the orders of Salika, J. of 25 February 1994. The report tabled, it was said, was not compliance with the Court orders, rather a defiance of them. 

The Plaintiff asserts that the Permanent Parliamentary Committee to whom the orders of the 25 February 1994 were directed did not comply with those orders. In support of that contention, the Plaintiff says that in the first place no investigation was carried out and no report based on a proper investigation was presented to the Parliament. 

In the second place, it was claimed that such reports as were put before the House were not the work of the Permanent Parliamentary Committee itself but the interim reports of others. Further the Deputy Chairman of the Permanent Parliamentary Committee presented them before the Parliament to justify yet another extension of the provisional suspension, purportedly enable a "proper investigation" to be undertaken and a report to be tabled at the next sitting of the Parliament. Affidavit evidence advanced by the Plaintiff annexed extracts of Hansard to detail the events and resolutions in the House on 8 March, when the status of the Gulf Provincial Government was debated. 

The Defence case is that the Court orders were carried through. The essential order of Mr Justice Salika was that an investigation be made, and report tabled. That, says the Defence was done. The report was deliberated upon by the Parliament which thereupon resolved to confirm the motion for substantive suspension before it. Not as the Plaintiff contends, to extend the provisional suspension. That suspension having been confirmed, the future course for the reinstatement of the Gulf Provincial Government lies at the discretion of the Parliament - in fresh elections and or appointments.

The Plaintiff took issue with the Defence claims on substantive suspension and I shall return to this issue again. However the Plaintiff maintained that the sole issue was; had the Permanent Parliamentary Committee complied with the Court order to "investigate the suspended Gulf Provincial Government forthwith pursuant to s 91C of the Organic Law ....... and present the report to the Speaker ......."

The Plaintiff maintained that only by the Permanent Parliamentary Committee exercising its functions under s 91 D of the Organic Law i.e. calling of witnesses examining documents and records could it claim to have carried out any investigation on which to base a report. Logically it could only do that if it went to Kerema where the records and evidence of the activities of the Provincial Government are. It is acknowledged it did neither of these. It may be noted that Salika, J. was aware of the short time frame for implementation of his orders but considered that two weeks was adequate to investigate and table a report.

Counsel for the Plaintiff submitted that based on the evidence before the Court:-

"it is reasonable to infer here that the Committee discussed and planned to compile a report just to comply with the Court order. 

It is further submitted that in order to comply with the Court Order it adopted a report prepared by one Mr Jacob Kairi Administrator of the suspended Gulf Provincial Government"

While that course seems not unreasonable, counsel for the Plaintiff appears to imply a cynical or even a fraudulent attitude in the Permanent Parliamentary Committee; namely that of compiling any sort of report just to be able to say the Court Order was complied with. 

There was no evidence to support that contention. But counsel maintained that in any case it was not open to the Permanent Parliamentary Committee to rely on any report other than one based on its own physical investigation. 

Counsel for the Defence maintained that the Permanent Parliamentary Committee's task of investigation and report was not governed by set procedures. Its functions and powers enables the taking of evidence and the requiring of production of documents and records but these does not compel with the Permanent Parliamentary Committee to one set course of action. 

It was open to the Permanent Parliamentary Committee to do, what it did do, table a report that it had obviously adopted, and present it to the Parliament. 

DECISION

While it is true that the issue before this Court is whether the order of 25 February 1994 was complied with or not, the determination of just what resolution the National Parliament, passed on 8 March 1994 in respect of the Gulf Provincial Government is most relevant. 

And it must be a matter of real concern that there is dispute as to what resolution was passed. It is to be expected that the record of the Parliament would be plain and clear.

Sir Thomas Koraea as acting chairman of the Permanent Parliamentary Committee deposed that the resolution of the House was that the Parliament deliberated on the Permanent Parliamentary Committee preliminary report and voted on it: that is the motion of 24 February 1993 "to confirm the suspension of the Gulf Provincial Government provisionally suspended on 27 January 1993. 

As was submitted for the Plaintiff, that does not entirely square with his statements to the House reported in the draft Hansard of 8 March annexed to the affidavit of the Hon. Leader of the Opposition Mr Chris Haiveta. 

It is there recorded that he told the House:

"My Committee is compelled to present this preliminary, report to comply with the court order and seek the endorsement of this house to further extend the period of s suspension for another six(6) months, from the date set by this honourable house on 24th November 1993.

The extension of suspension will allow full investigation by my committee after this session of the house and tabling of a full report in the May/June session of this honourable house. 

I move that this house accept this report and endorse extension of suspension of Gulf Provincial Government for another six (6) months from the date last set by this Honourable House".

The Leader of the Opposition in his affidavit recalled that Sir Thomas had moved that motion to extend provisional suspension and deposed it was his belief it was that motion that was put to the House and passed. 

That evidence and that record from the draft Hansard credible as it is nonetheless is at odds with the Parliamentary Minutes. The Acting Clerk to Parliament deposed to being present in the House on 8 March. He said that notwithstanding Sir Thomas Koraea's statement, no motion moved by him was recorded or seconded nor any vote on such taken. There was only one motion before the House at that time namely that of Mr John Nilkare, 

"that, in pursuance of s 91B(1)(b) of the Organise Law on Provincial Government this Parliament hereby confirms the suspension of the Gulf Provincial Government provisionally suspended under s 91 A of that Organic Law by the National Executive Council on 27 January 1993"

That, motion as is recorded in the Minutes of the House was passed on a vote 47-20. Without doubting the credibility of the Hon. the Leader of the Opposition and those of the Plaintiff's witnesses reporting their views of what occurred in the House on 8 March, I accept as I must, the report of proceedings of the House, the Minutes, which record that the only resolution passed regarding the Gulf Provincial Government was to confirm its suspension. 

That being the case, the Parliament in fact accepted the report of the Permanent Parliamentary Committee before it and resolved that the Plaintiff Government's suspension be confirmed. 

The Plaintiff's contention is that it wasn't a proper report, in that it was not backed by any statutory investigation. What can be said of this report. Without making any judgment on its value or credibility or otherwise, it was nevertheless presented to the House regarding the suspended Provincial Government and stated to be one specifically to comply with the order of this Court. It was based on an investigation made on behalf of and adopted by the Permanent Parliamentary Committee. That being said, then the requirements of the Organic Law are complied with.

In saying that, no comment is being expressed on the strength or credibility or adequacy of that report or on the resolution that followed, because that is a matter for the Parliament alone. This Court has no jurisdiction to consider the merits or otherwise of the report or the adequacy of debate on it. All that is open to the Court is to see that Constitutional procedures are met. It is not open to the Court to question the internal proceedings of Parliament. It cannot investigate the manner in which the Parliament has exercised its function. 

If cannot say for example, speculate that Parliament may have been mistaken in the manner it deliberated on this matter. 

The Constitution s 134 prohibits such speculation declaring: 

Except as provided by a Constitutional Law. 

"the question whether the procedures prescribed for the Parliament or its committee have been complied with, is non justiciable ........"

That Constitutional provision is also incorporated in the underlying law of PNG which holds that no claim can succeed before a Court which impugns the manner in which the Parliament exercised its function since this would, or might lead to the Courts being obliged to rule and be in conflict on issues which are the prerogative of Parliament and on issues which Parliament has already made a determination. See Pickins -v- British Railways Bd. (HLE) 1974 AC 765.

The result is that this application must fail and it is dismissed. 

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Lawyer for the Plaintiff: Soi & Associate
Lawyer for the Respondents: Solicitor General