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In the Matter of The Organic Law on Provincial and Local-Level Governments and the Constitution of Papua New Guinea; Siembo v National Executive Council [1998] PGNC 110; N1780 (10 November 1998)

Unreported National Court Decisions

N1780

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 502 OF 1998
IN THE MATTER OF THE ORGANIC LAW ON PROVINCIAL AND LOCAL-LEVEL GOVERNMENTS AND THE CONSTITUTION OF PAPUA NEW GUINEA
IN THE MATTER OF THE QUESTION AS TO THE SUSPENSION OF THE ORO PROVINCIAL GOVERNMENT
BETWEEN
THE HONOURABLE SYVANIUS SIEMBO M.P
GOVERNOR OF THE ORO PROVINCIAL GOVERNMENT
(IN SUSPENSION), THE ORO PROVINCIAL EXECUTIVE COUNCIL (IN SUSPENSION), AND THE ORO PROVINCIAL GOVERNMENT (IN SUSPENSION)
PLAINTIFFS
AND
THE NATIONAL EXECUTIVE COUNCIL
FIRST DEFENDANT
AND
THE RIGHT HONOURABLE MICHAEL NALI, MP
ACTING PRIME MINISTER OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT
AND
THE HONOURABLE SIMON KAUMI MP
MINISTER FOR PROVINCIAL AND LOCAL GOVERNMENT AFFAIRS
THIRD DEFENDANT

Waigani

Akuram J
5-6 November 1998
10 November 1998

ADMINISTRATIVE LAW – Judicial Review of National Executive Council (NEC) Decision provisionally suspending Oro Provincial Government – whether ultra vires its powers.

CONSTITUTIONAL LAW – purpose of Section 187E (as amended) of the Constitution - (Amendment No. 16/95) - meaning of “Parliament”- to be read in the light of other sections of the Constitution and Organic Law on National Government and Local- Level Government Divisions 8 & 9 of Part III, Sections 51 to 58.

Counsel

Mr A. Jerowai for the Plaintiffs.

Messrs J. Kawi and Joe Fragi for the Respondents.

AKURAM J: This is an application for judicial review of the decision of the National Executive Council (NEC) to provisionally suspend the Oro Provincial Government on the 14th September 1998. Such suspension was effected under Section 187E (as amended) of the Constitution and Section 58 of the Organic Law on Provincial Governments and Local-Level Governments (OLPGLLG).

An application for leave to review was considered and granted for this review on the 16^th September 1998.

The grounds for the provisional suspension are:

a) &##160;; G60ss moss mismanasmanagement of the financial affairs of the province and widespread corruption;

b) ـ B6eakdownhe adtratitrati the province; and

c)  ¦&#1eliberaiberate ande and persistent frustration and failure toly wie lawirectof the National Government.

The >The PlainPlaintiffs in support of their application tendered and relied on the affidavit evidence of:

a) ; Hon. S.bSiemwo, sworn on 2 on 28/9/98 and filed on 6/10/98;

b) ;ټ H60; Hon. S.n. S. Siembo, sworn on 6/10/98 and filed on 6/10/98 in regards to typographical errors; and

c) &##160;;& The dihe diceshe eshe Originating Summons - “A”#8221; &am; & “B” comprising of the the allegations and their responses.

a) ټ&##160; H60; Hon. S.n. S. Kaumi, sworn on 5/11/98; and

b) Colin Travertz, sworn o/98; /p>

c) &##160; Mairi Maroroa, swor sworn on 8/9/98.

T

The brief facts are that prior to the nsionegatiere led ag the rovincial Government, its Govs Governorernor and some of the public servants. Tho. Those alse allegatlegations ions in summary amounted to allegations of “gross financial mismanagement” and “gross abuse of the Governor’s political powers” (see Appendix “A” to this Originating Summons).

By a letter of 23/5/98, the Minister summoned the Governor to appear before him on the 15^th June 1998 in respect of the said allegations. On the Governor’s appearance on the 15^th June 1998, the Minister served the allegations.

The Minister, at the same time, directed the Governor to reappear before him within 14 days from the 15^th June. On the 29^th June 1998 the Governor reappeared before the Minister with written responses which were contained in Appendix “B” of this Originating Summons.

The Plaintiff now alleges, which is denied by the Respondents, that because the responses were lengthy, the Minister and his officials will consider the responses and will notify the Governor to reappear before the Minister to take him though the responses. However, no more was heard from the Minister until the provisional suspension of the Provincial Government. Further, the evidence in support were not cogently sufficient to support the suspension.

Another related issue was the appointment, revocation and reappointment of the Provincial Administrator(s), Mr Gerari and Mr Maroroa.

The Plaintiffs are now seeking to quash the National Executive Council’s decision to provisionally suspend the Oro Provincial Government on the grounds which raise the following issues:

a) ـ T60; That the Third Defendant and subsequently the First Defendant failed, neglected or omitted to afford Plaintiffs; particularly the Governor, a hearing as required under Sections 56 & 57 of the OLPGLLGtherewere each ofch of the the said said provisions as well as the rule of natural justice known as “Audi Alteram Partem”.

b) ; T60t tha Third Defendant dant had acted with bias and unduly influenced the First Defendant to suspend the Oro Provincial Government (OPG).

c) That the Deftsdanintjo or y or severally failed or omitted to satisfy themselves of the sufficient cogency of the said allegations in the light of the said responses without further meeting the nor b reaching the said decd decisionision to s to suspend the Oro Provincial Government.

d) ټ&#T60; evat even if n if satisfied of the sufficient cogency of the said allegations, the Defendants jointly and severally failed, neglected or omitted to cor if aid ations can only be put right by suspensipension ofon of the the Oro Provincial Government as is required under Section 58(d) of the Organic Law on Provincial Governments and Local-Level Governments (OLPGLLG).

e) As in (d) above, the deftsdants erred in holding that those matters contained in these allegations could only be put right by tspens/p> <#160;;ټ&##160; That the Third Defendant committed tted an eran error oror of lawf law when when he g he gave reasons, other than those contained in the original allegations leading to the provisional suspension of the Oro Provincial Government.

The relevant Constitutional provisions in relation to the provisional suspension of the Provincial Governments are Sections 187(E (1) & (2) and Sections 54, 55, 56, 57 and 58 of the Organic Law.

Section 187E of the Constitution on the “suspension of Provincial Governments and Local-Level Governments” was amended in 1995 by Amendment No. 16 of 1995 and certified on the 19^th August 1995 which repealed and replaced the old Section 187E. The Plaintiffs’ counsel was not availed of this amendment until the Defendants’ counsel provided a copy to him. This is pertinent to the question whether the Respondents’ decision was ultra vires the Constitution and Organic Law.

For the purposes of the arguments raised, I set out the repealed and the new provisions of Section 187E as follows:

187E Suspension of provi cialrnovernments (old)

(1) &##160; Parliamrliament maya by so absolute majority vote, suspend a provincovernif:

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

(60;&##160; #160; ther thas been gross ross mis-management of the financial affairs of the province; or

(c) ـ&#1here here han a bn a bdown in the administration of the province; or

(d) &#the; hase has been been deliberate and perst fruion of, or failure to comply with, lawful directirections oons of the National Government.

(2) &##160;c animaov maovision sion for for an inan independependent Commission and its powers, functions and procedure to investigate and to report to the Parliamenthe cstanc a provincial government before the Pare Parliameliament exnt exercises the power under Subsection (1) to suspend the provincial government.

(3) &##160;; An Orga Organic Laic Law may make provisions for further defining any matter referred to in Subsection (1) (a), (b), (c) or (d).

(4) ; The National txecutive Cove 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 affe the nce o whole of thof the coue country.ntry.

(5) &#While a provincial governovernment 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 /p> <ـ W60; Wher Where a pr a provincial government is suspended:

(a) e the oasa ns onr Subsectbsection (4), the Minister responsible for provincial affairs shall, as soon soon as pras practicable and in any event not later than irst ng ofParli afte suspension, table able in thin the Pare Parliameliament a nt a report on the suspension, the reasons for it and the circumstances of it; and

(b) ;ټ at each each meetimeeting 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.

The new Section 187E reads:

187E SUSPENSION OF PROVINCIAL NOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS (No. 16 of 1995)

(1) Where a Privincovl Gmenrnment or a Local-Level Government undermines or attemptunderthe authority of y of the Nthe 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.

(2) &#16>An Organic Law may maky make provision for and in respect of the procedures to be followed in the exercise of the powers under Section (1).

(3) & An Organic Law mayw may make provision for further defining any matter referred to in Subsection (1).

(4) ҈ ate Nal onal Executxecutive Council mayend ainciaernment or a or a Loca Local-Levl-Level Government that cannot carry out its functions effectively because of a war or national emergency red uPart >emergemergency pncy powersowers) affecting the province, local-level government area or the whole of the country.

(5) While a Provincial Governoent or a Local-Level 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 Provi cial Governovernment or a Local-Level Government is suspended:

(a) &#1n the cf a ssion Subsn ubsn (4), the Minister responsible for provincial government andt and loca local-levl-level goel government matters, shall, as soon pracle anany enot lthan the first meeting of thef the Parl Parliameniament aftt after the suspension, table in the Parliament a report on the suspension, the reasons for it and circumstances of it; and

(b) at each meeting of ahe Pmeliament during the suspension, the Minister responsible for provincial government and local-level government matters shall report to the Pment e mea takere-essh the Provincial Gial Governovernment ment or thor the Loce Local-Level Government, as the case may be. (emphasis added).

Pursuant to Subsection 187E(2) of the Constitution, an Organic Law was enacted and made provisions for and in respect of the procedures to be followed in the exercise of the powers under Subsection (1).

These provisions are in Sections 54 to 68 but more particularly Sections 54 to 58 which I set out below:

Division 9. – Suspension of Provincial Governments and Local-level Governments

Subdivision A. – Suspension Generally

54. &##160; APPLICATION OION OF SUBDINISION A

(1) ;&#16is subdivisdivision apon applies in relation to the suspension of a Provincial Goent oocal-level Government on a ground set out in Sect Section 187E(1) (suspension of Provincialncial Governments and Local-level Governments) of the Constitution.

(2) &#160s suidivision does nots not affect the operation of Section 187E(4) of the Constitution.

55. ټ GROUNDS OF SUOF SUSPENSION

A Provincial Government or a -Leveernmey be suspendspended oned on a gr a ground set out in Section 187E(1) (suspension of Provincial Governments and Local-level Governments) e Constitution. /u>. (emphasis added).

56. ҈ POWERS OF MINF MINISTER WHERE HE IS OF THE OPINION THAT A GROUND FOR SUSPENSION MAY EXIST

Where the Minister responsible for provincial government and local-level governmettersf the opinion than that the ground for suspension of a Prov Provincial Government or a Local-Level Government exists or may exist, he may:

(a) ;ټ requ>require:

(i) ـ <6>in the case of a of a Provincial Government, the Provincial Governor;

or

(ii) &##160;; in the the case oase of a Local-leveernmehe Prial Gor and the head of the Local-ocal-levellevel Gove Governmenrnment concerned,

to appear before him and “give an explan of atters” whi; which hach have come to the attention of the Minister; and

(b) &##160; report port to the natioxel Executive Council on any matters which appear to constitute grounds for suspension of the Provincial Government orLocall Govnt. (emphasis added)

57. < DUTIES OF NAT ONAL ENALUTXECUTXECUTIVE COUNCIL ON SUBMISSION OF REPORT, ETC

The National Executive Council shall consider any report and comments submitted under Section 56(b) and may:(a)&ـ cause tuse the the Ministinister to make further inquiries; and

(b) &#require:

(60;&##16&##160; ;

or

(ii) ;&#&#in the of al-leovernmeernment, the, the Prov Provinciaincial Governor and the head of the Local-ocal-levellevel Gove Government concerned,

to attend beit and make explanations. (emphasis added).

58.&#160 ټ NATIONAL EXEC EXECUTIVE COUNCIL MAY SUSPEND A PROVINCIAL GOVERNMENT OR A LOCAL-LEVEL GOVERNMENT

Where, after considering:

(a) ҈ epe r amrt ammentmientmitted under Sect Section 56(b); and

(b) &#160 any fr rheort pr an explanxplanation which it may requunderion 57,

the National Executive Cive Counciouncil is l is of the opinion that:

(c) roe gsuir e; nnd

(

(d)&>(d) #160; ҈  the matter can only t righ right by suspension,

the National Executive Coumay, tice e Nat Gazeprovilly suspesuspend a nd a ProviProvincialncial Gove Government or a Local-level Government.

I am satisfied from the evidence that the Minister has properly complied with and did what Sections 56 and 58 required of him. I am also of the view that Section 57 will only apply if National Executive Council (NEC) is not satisfied with requirements under s. 56(b). I therefore find no error of law here.

However, Sections 54(1) and 55 of the Organic Law say that a Provincial Government or Local-level Government may be suspended on a ground set out in Section 187E(1) of the Constitution (as amended). The old or repealed provisions of Section 187E has four (4) grounds whereas the new Section 187E (No. 16 of 1995) has only two grounds. These are:

(i) ـ W60; Where the Provincial Government or the Local-Level Government has undermined or attempted to undermineauthority of the “National Parliament”; or

(ii) ـ#1660; Wh0; Where thre the Provincial Government or Local-Level Government has undermined or attempted to undermine “National Unity”;

the National Executive Council may pronallpend the Provincivincial Goal Government or Local-level Government. The Organic Law provisions of Section 56 to 58 then sets out the procedure for provisional suspension.

The question is where do the grounds in the repealed Section 187E of this Constitution fit in. Section 187E of the old provision, subsection (1)(a), (b) & (c) are concerned with the actions of the Provincial Government and (1) (d) & (e) deals with the Provincial Government’s persistent frustrations of or failure or disobedience of applicable laws including the Constitution or an Organic Law, the Provincial Constitution or any legislation applicable to the province. The answer to this question can be found in the Organic Law.

The Organic Law under Division 8 – “withdrawal of powers, functions and finances of the Provincial and Local-level Governments” deals with those grounds set out under the repealed section 187E(1). These are set out in Sections 51 to 53 which I set out below:

51. ټ WAWAL OFAL OF POWERPOWERS, FUNCTIONS AND FINANCES

(1) ټ Where tere there are findings by:

(a) &&#160 Audetor-Gtor-Generalneral:

(i) orupti abuspower wiahin viProvincial Government ornt or a Local-level Government so as to reto render nder the government either ineffective or lacking in publspectconfi; or

(i60;&##160; o60; of failure lure by a by a by a Provincial Government or a Local-level Government to keep or cause to be kept proper accounts and records of transactions or dealings; or

(iii) a Provincial Government ornt or a Local-level Government has an ineffective internal control system; or

(iv) that a nrovi Gialt Lenall call Govnt has failed to submit reporreports asts as requ required ired by law; or

(b) the Minister resblenfovilond loevel government matters, or a or a Spec Special Iial Investnvestigating Committee appointed for the purpose by the National Executivecil t/p> <ـ҈ th0; there here has beas aeen a en a breakbreakdown in the administration of a province or local-level government area; or

(ii) ـ there hes been deli deliberate and persistent frustration of or failure to comply with lawful directions of the National Government; or

(iii) &#160vincial Goeernment or t or a Local-level Government has deliberately and persistently disobeyed applicable laws, including the Constitution, an Organic Law (including this Organic Law) y nat legion appl applicablicable to e to the province or local-level government area; or

(iv) ҈ there has bees been a failure to carry out functions in accordance with the development policies and standards of the National Government,

ationecutive Council shall direct the Provincial GoverGovernment or the Local-level Government cent concerned to rectify the matter and such direction shall specify the manner and time in which such rectification is to be carried out.

(2) ـ&#1u>Wher>Where a Pr a Provincial Government or a Local-level Government refuses or fails to comply with a direction issued unubsec(1), the National Executive Council may:

(a) &##160; 160; 160; ; withdraw all or any of the powers and functions of; or

3.&p>3. This section does not prevent the Auditor-General, the Minister responsible for provincial government and local-level governmettersthe Sl Invatingitteethe case may be, from referring any persoperson, inn, includicluding meng membersmbers of a of a Provincial Government, a Local-Level Government or any other person, to the Ombudsman Commission, the Public Prosecutor, the Police or any other relevant authority for further investigation and action. (emphasis added).

52. R OF POWERS AND FUNCTIONS

Subject to Section 53, the National Executive Council may, on the recommendation of the Minister responsible for provincialrnmen locael goent matters, given after rece receivingiving a re a report port from the Auditor-General, the Minister responsible for provincial government and local-level government matters or the Special Investigating Committee, recommending the return of the powers and functions, direct that, with effect from a specified date, the Provincial Government or the Local-level Government is authorised to exercise all or any of the powers and functions withdrawn in accordance with Section 51.

53. COMCE WITH CERTAIN CONDITINDITIONS

(1) ټ A ProviProvincial Government or a Local-level Government to Sect2 app for eriod specified by the National Executive Council, shall:

(

(a)&#1a) < suall its propfinanestimattimates, includncluding aing any Bill appropriating monies, to the National Executive Council for approval; and

(b) ҈&&#160vide reporo the National Exec Executiveutive Coun Council, cil, on thon the financial management and other related matters as the Council may, time to time, require.

(2) In addition to the requiremuirements under Subsection (1), except with the prior approval of the National Executive Council, a Provincial Government or a Local-level Government shall not transfer ffrom ctivi project item to m to anothanother duer during the period specified in that subsection.

So if there are any widespread corruption in the administration of the province, or gross mismanagement of the financial affairs of the province, or a breakdown in the administration of the province, or persistent frustration or failure or disobedience of the lawful directions of the National Government or any applicable laws including the Constitution, Organic Law, Provincial Constitution or any national legislation applicable to the Provincial Government, the National Executive Council, under Section 51(2), may take any of the actions mentioned in Section 51(1) (a), (b) or (c). National Executive Council may also, subject to Section 53, recommend returning of the powers and functions to the Provincial (or Local-level Government) within a specified date. The National Executive Council shall also do any of the things mentioned in Section 53(1) and (2) of the Organic Law. That is, the Provincial or Local-level Government should not transfer funds from one activity or project item to another during the period specified in that period.

So if Sections 51, 52 & 53 of the Organic Law specifically provided for the procedures in dealing with the grounds specified in the repealed Section 187E(I) of the Constitution, the intention of the Parliament in replacing the old section 187E(1) is to deal with any administrative and financial matters according to the administrative and financial procedures already in place and not to allow any political interference in these areas. That is why the new Section 187E only has two grounds which I will now discuss.

Section 187E(1) (Amendment No. 16/95) says the ground is where the Provincial Government or Local-level Government undermines or attempts to undermine the National Parliament. What does National Parliament mean? The Interpretation Act, Chapter 2 defines “Parliament” to mean “the National Parliament established by Section 99 of the Constitution. Section 99 sets out the “Structure of the Government” and reads:

(1) &##160;ectbjo anto and in a in accordance with this Constitution, the power, authority and jurisdiction of the people shall be exercised by the National Governmen>

160;& The National Governmvernment cent consisonsists of three principal arms, namely:

(a) The National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law-making; and

(60;&##160;;&#16e National Executive; and

(c) < &160; #1660 The; Ttionational Judicialicial System, consisting of the Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other Courts.

(3) &ـ&#1n principle, the the resperespectivective powers and functions of the three arms shall be kept separate from each other.

(4) ـ҈ Subsection (ion (2) is descriptive only and is non-justiciable.

In order tder to put this distinction between the thrincipal arms of the National Government into reality, the Organic Law separated those func functions of the legislature and the executive in Sections 51, 52, 53 and 54 to 58 in dealing separately with any anomalies created by the Provincial Government or Local-Level Government in Divisions 8 & 9 of Provincial Government Part III of the Organic Law. This intention is very clear in Section 51(1)(b) (i) to (ii) repeating the same grounds for suspension under Section 187E of the Constitution (see above) but says that “the NEC shall direct the Provincial Government or Local Level Government concerned to “rectify the matter” and such direction shall specify the manner and time in which such rectification is to be carried out”.

The National Parliament did not intend to suspend a Provincial Government. That is why those grounds for suspension under the old section 187E has been repealed and placed in Section 51(1) of the Organic Law so that they can be dealt with administratively. Instead it allowed three persons or authorities to deal with any anomalies created. They are the Auditor-General, the Minister responsible for Provincial and Local-Level Government and the Special (or National) Investigating Committee who may refer any person or member of the Provincial or Local-level Government to the Ombudsman Commission, the Public Prosecutor, the Police or any other relevant authority for further investigation and action. What the Parliament has intended is to let the administrative and financial matters be dealt with by the Executive arm of the Government who has a system already in place. In its stead the new Section 187E has only two grounds for suspension of Provincial or Local-level Government.

The next question is, does the present grounds (see above) for the provisional suspension of the Oro Provincial Government fall under Section 187E. That is, does:

(a) ـ gross masmanagementement of the financial affairs of the Province and widespread corruption,

(b) breakdown in the administnation of the Province and

(c) erlib antepers stent frustfrustration and failure to comply with lawful directions of the National Government

undermine or attempt to undermine the NatiParli.

In view of the above reasons, I make following findings:

1. That thi Min fterPror nciaincial and Local-level Government was correct in properly exercising his powers under Sections 56 a of tganicby reng thernorppear before him and give explanations tons to alle allegatiogations rans raised.ised. The The Governor’s explanations whether written or oral is sufficient unless National Executive Council directs him to do so under Section 57.

2. ҈& T60; That that the Minister for Provincial Government and Local-level Government had acted beyond the powers given hder Sn 56(b) to refer the reports to the National Executive Council and not in accordacordance wnce with Sections 51, 52 & 53 of the Organic Law. In this regard, Minister has acted contrary to procedures under Sections 51, 52 & 53 of the Organic Law.

3. That the Thire Deft,dannisMinister, committed an error of law when he gave reasons other than those contained in the original allegations leading to the provisional suspension in contravention of Section 56(a) of the Organic Law by not instructing the Governor to explain.

4. ҈ In view of (2) and and (3) above, Minister has acted ultra vires his powers under Section 187E(1) and Sections 51, 52, 53, 55, 56 of the Organic Law.

5. &##160;&##160;; In of (2) ((2) (3) a(3) and (4nd (4) abo) above, the National Executive Council has acted ultra vires the Constitution (Section 187E(1)) antion 58 of the Organic Law.

In view of the abhe above reasons and findings, I make the following orders.

1. That the application for iudicial Review is granted.

2. &#T60; ECe Ncisden tooproviprovisionally suspend the Oro Provincial Government is quashed.

3. ـ That to Oro Provincial Gmal Gment storeits fxecuttatus forthwith.

>

4.&#14. < ټ Th0; That the Sp or lationational Investigating Coee caut itestigation wion withouithout hint hindrance and with full co-operation from the reinstated Oro Provincial Government, its agents or servants.