N1209

PAPUA NEW GUINEA
[In the National Court of Justice]

OS 52 of 1993

LUCAS ROIKA acting for and on behalf of the
Western Highlands Provincial Government in suspension)
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
12 & 21 April 1994

Constitutional Law - Suspension of Provincial government at end of term of office as elections were to be held - Whether a provincial government can be in transition - continuation of suspension well after expiry of term - re-establishment of a province to normal.

CASES CITED:
The following cases are cited in this judgement:
SCR 3 OF 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151
OS 67 OF 1994 Enga Provincial Government (in suspension) v The State: Unreported March 1994

P Kunai for the Plaintiff.
D Kombagle for the First Defendant.
P Ame for the Second and Third Defendant.

6 May 1994

WOODS, J This is an Originating Summons seeking orders challenging the actions by the National Executive Council in suspending the Western Highlands Provincial Government.

As a preliminary point I will comment on the status of the Plaintiff as a party competent to take these proceedings. There has been no objection to his status as a plaintiff but in view of the ruling in the National Court in OS 67 of 1994 Enga Provincial Government (in suspension) v The State Unreported March 1994 where it was held that a Provincial Government (in suspension) has no power to function alone but can only function with the authority of the National Executive Council I feel I must consider this. I am satisfied that the Plaintiff Lucas Roika as a former member of the Provincial Government, in fact he was the Premier, and still being paid as a suspended member has sufficient status and interest to take these proceedings in his own name and style as he has done.

HISTORY

Elections for a new Western Highlands Provincial Assembly were scheduled to be held in May-June 1992.

However as this timetable would clash with the holding of the National Elections scheduled for 1992 various discussions and actions were taken by the different bodies concerned. It appears that the Plaintiff's Office was considering appropriate action to defer the provincial elections for a year. As well the Minister for Provincial Affairs and the Electoral Commissioner may have separately considered the matter. In January 1992 the Electoral Commissioner formally gazetted notices deferring the Provincial Elections for the Western Highlands until after the completion of the 1992 National Elections.

In the meantime the Western Highlands Provincial Assembly had passed an amendment to the Western Highlands Constitution extending the life of the Provincial Parliament by one year.

In December 1992 the Electoral Commissioner on the basis of his decision to defer issued writs for the Western Highlands Provincial Elections. It appears that he may have not considered the implication of the earlier amendment to the Western Highlands Constitution extending the life of the Assembly by a year. He was immediately advised that the amendment may have extended the life of the current Assembly by one year so he immediately withdrew the writ.

However the interpretation was challenged before the National Court and on 21st December the National Court declared that the intention of the Western Highlands Provincial Assembly in extending the life of the Assembly by one year was not to apply to the term of the then current Assembly but rather was to apply to the term of the next Assembly after the planned 1992 Elections.

This ruling seemed therefore to suggest that the withdrawal on the 8th December of the writ issued on the 3rd December was precipitous. However on all the evidence before me it appears that there may have been some confusion of intentions and actions by the different parties involved.

However everything then seemed to have been thrown into the melting pot by the suspension of the Western Highlands Provincial Government on 21st December.

There was an application to the National Court early in 1993 in OS 36 of 1993 seeking orders that the Suspension was unconstitutional and seeking orders for the elections for which the writs had been issued on 3rd December to be proceeded with. That action was dismissed on the basis that the administrative process of suspension and re-establishment had not been exhausted.

Now the Plaintiff is seeking the following relief:

1. 	A declaration that the power to suspend a Provincial Government can only be exercised when a Provincial Government is effectively in office and not when a Provincial Government is in transition.

2. 	A declaration that the withdrawal of the Writs issued for the Western Highlands Provincial Government Elections on 3rd December 1992 by the First Defendant was and is unconstitutional.

3. 	A declaration that the Provisional Suspension of the Western Highlands Provincial Government by the National Executive Council was and is unconstitutional.

4. 	An Order directing the Second and Third Defendants to lift the suspension of the Western Highlands Provincial Government forthwith and

5. 	An order directing the First and Second Defendants to conduct the elections for the Western Highlands Provincial Assembly forthwith.

6. 	Costs of this action.

The first declaration sought refers to the Provincial Government in transition. However I have not been referred to any legislative use of the word transition in this situation. The Plaintiff seems to suggest that as the current term of 4 years had already expired the Provincial Government was still only in existence in a transitional status pending the holding of fresh elections. Thus it could not be held to be effectively in office and a suspension can only occur when it is effectively in office during the relevant term. The submission goes on to suggest that it is an absurd interpretation to allow a provincial government to be suspended when it is about to go out of existence by way of fresh elections, because otherwise as is the case here now, you have the absurd situation of provincial members still being on the payroll but under suspension when their term had expired almost 2 years ago. Whilst there appears to be some merit in the latter conclusion I find no merit in the suggestion that after the strict term has expired and pending the fresh elections a provincial government is only in transition and there is less than a full government, there is no basis for such a conclusion. The simple fact is that until a new government comes in and takes up office following the return of writs the existing government and members are still in office and perform the same functions and enjoy the same benefits as given to members. There is no lesser status or condition.

The second declaration sought relates to the withdrawal of the Writs issued on 3rd December 1992. I am satisfied on all the evidence before me that there may have been some confusion as to what the situation was where separate action had been taken by the Electoral Commission and the Provincial Assembly. And until there was the ruling made by the National Court on 21st December the Electoral Commissioner was entitled to be unsure of the position. Now with hindsight perhaps the Writs should have continued and not been withdrawn on 8 December. But by the time the ruling was obtained the National Executive Council had suspended the Government.

At this stage there appears to be a gap in the Legislation. To put it simply as the Plaintiff submits, why suspend a provincial government that is about to go out of existence by way of fresh elections following the expiration of its term. The suspension here was not because of a war or national emergency but appears from the wording of Decision NG 89/92 of the National Executive Council to have been because of alleged mismanagement or corruption.

The power to suspend provincial governments is contained in Section 187E of the Constitution.

187E. Suspension of provincial governments

(1) 	Parliament may, by an absolute majority vote, suspend a provincial government if -

(a) 	there is wide-spread corruption in the administration of the province; or

(b) 	there has been gross mis-management of the financial affairs of the province; or

(c) 	there has been a break-down in the administration of the province; or 	

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

(2) 	An Organic Law may make provision for an independent Commission and its powers, functions and procedure to investigate and to report to the Parliament on the circumstances of a provincial government before the Parliament exercises the power under Subsection (1) to suspend the provincial government.

(3) 	An Organic Law may make provisions for further defining any matter referred to in Subsection (1)(a), (b), (c) or (d).

(4) 	The National Executive Council may suspend a provincial government that cannot carry out its functions effectively because of a war or of a national emergency declared under Part X affecting the province or the whole of the country.

(5) 	While a provincial government is suspended, its powers and functions are vested in and shall be exercised by or on behalf of the National Executive Council, in accordance with an Organic Law.

(6) 	Where a provincial government is suspended -

(a) 	in the cause of a suspension under Subsection (4), the Minister responsible for provincial affairs shall, as soon as practicable and in any event not later than the first meeting of the Parliament after the suspension, table in the Parliament a report on the suspension, the reasons for it and the circumstances of it; and 

(b) 	at each meeting of the Parliament during the suspension the Minister responsible for provincial affairs shall report to the Parliament on the measures taken to re-establish the provincial government.

As I have noted above this suspension was originally challenged before the National Court early in 1993 in case OS 36 of 1993 however the application was dismissed.

It has not been put to me that this case to-day is just a repeat of that earlier application however I must endorse certain aspects of the ruling made in that case which suggests that there was no irregularity in the original suspension. There is nothing in the Constitution limiting the power to suspend to a strict reference of the term of an Assembly exactly from the date of the return of writs for that original Assembly and thereby there is no law or rule which states there can be no suspension during the period "in transition" pending fresh elections.

Can this Court consider that a suspension for mismanagement and that is effected in the closing days of the term of office and which is then continued and renewed for such an excessive period such as to now goes against the whole purpose of Section 187E and thus becomes an error. It almost appears that this is not a suspension of the particular government but rather the suspension of the system of provincial government which is not within the intent and purpose of Section 187E. I note actually that the State has practically conceded in its submissions before me that with hindsight perhaps the writ for the elections issued on 3rd December should not have been withdrawn.

There appears to have been misunderstandings and different views being taken at the time such that I can not declare that the withdrawal of the writs issued on 3rd December was unconstitutional at the time it was withdrawn.

The third relief sought is that the provisional suspension was and is unconstitutional. That has already been covered in the ruling in OS 36 of 1993 and I cannot go past that.

The fourth relief sought depends on a ruling on the third relief and is therefore covered above.

The final relief sought is for the elections to be conducted. Whilst this relief seems to be dependant on the ruling in three above I am satisfied that on the basis of the submissions made and facts and history of the matter this relief can be looked at independently of the answers to any of the earlier relief sought.

I am satisfied that this application to the court is based on a different set of facts and history than that involved in any of the earlier applications to the court challenging the suspension of provincial governments. Most of the other cases challenge the reasons for the suspension or whether all the proper procedures have been followed. However in this case before me to-day we have a situation as I highlighted above of a provincial government being suspended after its proper term of office had expired and as the province was heading into fresh elections for a new assembly and government. And the continuation of this suspension is meaning that we have what appears to be the absurd situation of members still being paid as suspended members over a year after their term of office would have expired.

Does the Constitution say anything to help here and cover this situation. Section 187F sets out how a provincial government can be re-instated. However this section only refers to the period of 9 months and subject to any further extensions. In the case SCR No. 3 of 1986 Ref by Simbu Provincial Executive [1987] PNGLR 151 the Supreme Court was considering re-establishment and Section 187F however it appears that they were not faced with a re-establishment over a year after the expiry of a term. As their Honours stated in various ways,

"if there is no extension under s.187F(3) and elections are not held and the suspension is allowed to expire under s.187(4), ... the members return and retain their seats until the expiration of the term",

see Kapi DCJ at P 158, and as Amet J said at p.166' "the provincial government is restored to office with full authority and to run its full term".

In the same case at page 168 Amet J quoted from the Constitutional Planning Committee Report "Every effort should be made to restore a province in which the government has been suspended to normal as soon as possible" and then went on and said 

"The spirit of these provisions is that once it was found necessary to suspend a provincial government, a power which is to be exercised as a very last resort measure, then the national government must take all steps necessary to restore or re-establish it into effective operation once again within prescribed time limits".

At page 170 Amet J says

"My answer to that question, consistently with my discussions of Questions 1 and 3, must be that the provincial government and the members are restored to office for the balance of their regular term, if any be left yet to run."

In the above references I am emphasising the reference to "balance of regular term" or "to run its full term" because whilst I am certain that provincial government must be restored to the province it is not simply the lapse of the suspension and return of the suspended members. Their terms have expired.

I therefore find that the continuation of this suspension well past the time when the full term of the government would have expired is contrary to the spirit and intent of the Constitution section 187F and it is therefore necessary for this court to act as it is empowered to do under Constitution Section 155 and make appropriate orders or declarations.

Because the "regular" or "full" term of the provincial government of the Western Highlands has now long expired I do not think it is appropriate to make any order for the restoration of the suspended government. However to restore the Province to normal it is necessary that the writs for provincial elections be reissued as soon as possible.

I order the Minister for Provincial Services and Village Affairs and the Electoral Commissioner to take all necessary steps to hold elections for the Western Highlands Provincial Assembly forthwith.

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Lawyer for the Plaintiff: Kunai & company
Lawyer for the First Defendant: Pato Lawyers
Lawyer for the Second and First Defendants: Solicitor-General