[2000] PNGLR 109

PAPUA NEW GUINEA

[national court of justice]

JOHN MOMIS, MICHAEL OGIO, SAM AKOITAI
and MICHAEL LAIMO

v

ATTORNEY-GENERAL;
NATIONAL EXECUTIVE COUNCIL; and
THE STATE

waigani: kapi dcj
6, 10 March 2000

Practice and Procedure — Abuse of process of Court — The orders sought in originating summons may not simultaneously be brought by notice of motion.

Constitutional Law — Scope and meaning of s 22 of the Constitution discussed.

Constitutional Law — Organic Law on Provincial Governments and Local Level Governments — Application of Part VI Division 3 Subdivision C to Bougainville discussed.

Facts

The applicants filed an originating summons seeking various directives or orders to waive or dispense with the requirements under the provisions of the Organic Law on Provincial and Local Level Government thereby allowing for the establishment of an interim Provincial Government. At the same time, the applicants filed a notice of motion seeking orders almost identical to those sought in the originating summons. The basis of the applicants’ application is that, since the Supreme Court decision in John Momis & the Bougainville Provincial Government in Suspension v The National Executive Council & Or (unreported judgment of the Supreme Court dated 26th November 1999, SC626), declaring the Provincial Government system to be established for Bougainville, attempts to establish Provincial Government system under the Organic Law on Provincial and Local Level Government has been difficult. The difficulties arise from the fact that, there are no local level governments in place and, therefore, there are no heads of local level governments to constitute the provincial Government pursuant to s 10(3)(b) of the Organic Law on Provincial and Local Level Government. Given this, it is agreed there is a lack of machinery within the meaning of s 22 of the Constitution, which should be provided by the court to fill the gap until the Provincial government is established under the Organic Law on Provincial and Local Level Government.

Held

1.	Once a party chooses the procedure by way of originating summons, the matter should proceed to hearing in accordance with the National Court Rules. If the party, at the same time as filing the originating summons, filed a notice of motion seeking orders in exactly the same terms as the originating summons to determine the issues raised in the originating summons in a speedy manner, this constitutes an abuse of the process of the court.

2.	The machinery for giving effect to the establishment of a provincial government is fully provided for in the Organic Law and therefore there is no lack of supporting machinery or procedural laws for giving effect to the establishment of the Bougainville Provincial Government; consequently, s 22 of the Constitution does not apply.

3.	The National Court has no power under s 22 of the Constitution to dispense with a constitutional power. It is the prerogative of the Parliament to dispense with the application of the Organic Law to Bougainville by enacting an amendment to the Organic Law.

4.	The fact that there is no Provincial Government in place by virtue of the delays in establishing it cannot be regarded as lacking supporting machinery or procedural laws within the meaning of s 22, nor can it be regarded as having "no rule of law that is applicable, within the meaning of Schedule 2.3 of the Constitution. 

5.	The formation of the interim provincial government, and, what form it should take, is not a matter that should be determined by judicial act. This comes within the primary role of the National Parliament to legislate. The State v Wik Kor [1983] PNGLR 24 (followed).

Papua New Guinea cases cited

Constitutional Reference No. 1 of 1977 [1977] PNGLR 362.
Constitutional Reference No. 2 of 1978, In re the Corrective Institutions Act [1978] PNGLR 404.
John Momis & the Bougainville Provincial Government in Suspension v The National Executive Council & Or (1999) unreported SC626.
The State v Allan Moila (No. 2) [1978] PNGLR 113.
The State v Peter Painke (No. 2) [1977] PNGLR 141.
The State v Wik Kor [1983] PNGLR 24.

Other case cited

A Reference by the Governor in Council (Manitoba), (The Manitoba Language Rights Case) [1985] 1 Can. S.C.R. 725.

Counsels

J Nonggorr, for the applicants.
H P Kiele, for the respondents.

10 March 2000

Kapi dcj. The applicants have filed an originating summons for the following orders:

"1. an Order in the form of a directive that the requirement under s 10(3)(b) of the Organic Law on Provincial and Local-level Governments for heads of Rural Local Level Governments in the Province to be members of the provincial assembly be waived or dispensed with in the case of the Provincial Assembly for the Bougainville Province;

2.	an Order in the form of a directive that the requirement under s 10(3)(c) of the Organic Law on Provincial and Local-Level Governments for a representative to represent the heads of urban authorities and urban councils in the province be waived or dispensed with in the case of the Provincial Assembly for the Bougainville Province;

3.	an Order that the Provincial Assembly of the Bougainville Province may nominate up to ten (10) members to take the place of members of the Assembly required by s 10(3)(b) and (c) of the Organic Law on Provincial and Local-Level Governments, three (3) members be appointed from rural areas from each open constituency and one (1) member from an urban centre in any part of the Province;

4.	an Order in the form of a directive that the quorum for the first sitting of the Provincial Assembly for Bougainville Province be half of the membership prescribed under s 10(3)(a), (d) and (f) of the Organic Law on Provincial and Local-Level Governments;

5.	an Order that the directives made under paragraphs (1), (2), (3) and (4) above lapse either (a) on the enactment of appropriate legislation including amendments by Parliament to make further provisions on provincial and local-level governments for the Bougainville Province: or (b) after the conduct and declaration of elections of all heads of rural Local-level Governments in the Bougainville Province as required under the Organic Law on Provincial and Local-level Governments; or (c) on the return of Writs after the 2002 general elections, whichever occurs first;

6.	an Order that the provisions on the Organic Law on Provincial and Local-level Governments and other laws relating to provincial government be read to conform to the directives above."

The orders are sought pursuant to s 22 of the Constitution:

"22. Enforcement of the Constitution

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally accepted doctrine."

At the same time, they filed a notice of motion seeking the same orders apart from paragraph 1 which seeks approval of the procedure adopted to bring this action by way of originating summons.

The notice of motion has come before me for determination.

In respect of the approval for the appropriate procedure, there are no constitutional regulations made under s 258 of the Constitution to regulate the manner in which an application under s 22 of the Constitution may be initiated in the National Court. I direct pursuant to s 185 of the Constitution that the originating summons adopted in this action under the National Court Rules (Rules) is appropriate for initiating the application.

So far as the balance of the motion is concerned, it seeks orders in exactly the same terms as the originating summons. Once a party chooses the procedure by way of originating summons, the matter should proceed to hearing in accordance with the Rules. I suspect that these orders are sought in the notice of motion to determine the issues raised in the originating summons in a speedy manner. In my opinion, this is an abuse of the process of the court and I would dismiss the balance of the motion on this basis.

However, there are special circumstances surrounding the situation in Bougainville, I am prepared to deal with the merits of the substantive issues in the originating summons. The facts are not in dispute and the issues raised are mainly questions of law.

The relevant facts giving rise to the substantive issues are these. The Supreme Court handed down its decision in the matter of The Hon. John Momis & The Bougainville Provincial Government in Suspension v The National Executive Council & The Prime Minister (Unreported judgment of the Supreme Court dated 26th November 1999, SC626). The effect of this decision was that the Organic Law on the Provincial Governments and Local Level Governments (Organic Law) is applicable to Bougainville as from 1 January 1999, and the system of Provincial Government under the Organic Law must be established for Bougainville.

The Governor, the Hon. John Momis, in his affidavit deposes that, since the decision of the Supreme Court, he has endeavored to establish the Provincial Government under the Organic Law. He points out that there are difficulties with setting up the government immediately. He states that there are no local level governments in place and, therefore, there are no heads of local level governments to constitute the Provincial Government pursuant to s 10(3)(b) of the Organic Law. He further states that there is no speedy way of establishing the local level governments.

The Right Hon. Michael Somare, the Minister for Bougainville Affairs, in his affidavit deposes the same difficulty:

"… it is not possible to establish the Bougainville Provincial Executive Council fully in accordance with its provisions. The reason is that under s 10(3)(b) and (c), all heads of rural local level governments and a representative of urban local level governments are ex-officio members of the Provincial Assembly. There are at the moment no such local level governments constituted under OLPLLG."

Counsel for the applicants submits that there are no local level governments in place at this point in time and it will take time to establish them under the Organic Law. He submits that, as the Provincial Government cannot be established immediately, there is a lack of "machinery" within the meaning of s 22 of the Constitution. He therefore submits that this Court should provide the machinery to fill the gap until the Provincial Government is established under the Organic Law.

Counsel for the respondents submits that s 22 deals with lack of supporting machinery and procedural laws. She submits that there is no lack of such laws and therefore s 22 is not applicable to the circumstances in the present case. She further submits that an interim provincial government should be established under the Organic Law in the circumstances.

Counsel for the applicants in reply submits that the provisions relating to interim provincial governments are now no longer applicable after the general elections in 1997.

There can be no doubt that s 22 of the Constitution confers a jurisdiction on the National Court (s 166(2)(a) of the Constitution). The question is; what is the nature of this jurisdiction?

This section is intended to give effect to provisions of the Constitution that (1) recognize rights of individuals and (2) confer powers and duties on public authorities. These rights and powers or duties "shall not be left without effect because of lack of supporting, machinery or procedural laws".

A person may resort to s 22 of the Constitution where there is lack of supporting machinery or procedural laws to give effect to a constitutional right. In The State v Peter Painke (No. 2) [1977] PNGLR 141, the accused person sought to enforce his right under s 37(3) of the Constitution; Constitutional Reference No. 1 of 1997 [1977] PNGLR 362 s 22 was raised in the context of rights under s 42(2) of the Constitution; Constitutional Reference No. 2 of 1978, In re the Corrective Institutions Act [1978] PNGLR 404 the right of appeal under s 37(15) was relied upon; The State v Allan Moila (No. 2) [1978] PNGLR 113 the right to adequate facilities to prepare defence under s 37(4)(c), right to be defended by a lawyer under s 37(e) and the right to examine witnesses under s 37(4)(f) under Constitution were raised.

Similarly, an authority may seek to give effect to a power or duty conferred by the Constitution. The system of provincial governments and local level governments is established by the Organic Law and may be implemented in accordance with its provisions.

So far as elections are concerned, the power to conduct them is conferred on the Electoral Commission by the Organic Law on National and Local Level Government Elections. According to the affidavit of the Electoral Commissioner, he is awaiting directions from the National Executive Council to conduct the elections.

All provincial governments in the country have been established under these laws. There can be no suggestion that there is a lack of supporting, machinery or procedural laws for the establishment of the Bougainville Provincial Government.

In reality, the National Government has not taken further steps to establish the Bougainville Provincial Government for reasons I do not have to set out fully here. Counsel for the applicants has conceded that the failure to conduct the elections in accordance with the law are political. Whatever these reasons may be, the absence of a provincial government in Bougainville cannot be regarded as lacking supporting, machinery or procedural laws within the meaning of s 22 of the Constitution. The reason for lack of a provincial government at this point in time has nothing to with "supporting, machinery or procedural laws".

Admittedly, there is no Provincial Government in place at this point in time. Counsel for the applicants submits that these circumstances constitute a lack of "machinery" within the meaning of s 22 of the Constitution. With respect, this interpretation takes the word "machinery" out of context without regard to the whole of the section. The word "machinery" is to be given the meaning within its context. It deals with laws that ensure that the rights of individuals or power or duty of an authority is given effect to. This is the context in which the words "supporting, machinery or procedural laws" should be interpreted.

It may be helpful to illustrate this by reference to examples of how this provision may be applied. Section 29 of the Constitution confers the power to prosecute misconduct in office before a tribunal established under s 28(1)(g) of the Constitution. An organic law shall provide for the establishment of a tribunal and the proceedings before it. Such an organic law may be regarded as providing for the "machinery" which gives effect to the power conferred on the Public Prosecutor to prosecute and the power of the tribunal to conduct proceedings within the meaning of s 22 of the Constitution. Where there is a failure to enact such a law or it is held to be invalid on constitutional grounds, the National Court may exercise the discretion under s 22 to provide for the machinery to give effect to the power of prosecution given to the Public Prosecutor and the tribunal.

Where the right of appeal under s 37(15) could not be exercised by virtue of the prohibition of a right to appeal under the Corrective Institutions Act, the Court declared the provision unconstitutional and of no effect and gave directions to provide for the machinery to appeal in order to give effect to the right of appeal (Reference No. 2 of 1978, In re Corrective Institutions Service Act (supra)).

The "machinery" for giving effect to the establishment of a provincial government is fully provided for in the Organic Law. Consequently, there is no lack of supporting, machinery or procedural laws for giving effect to the establishment of the Bougainville Provincial Government. In the circumstances s 22 of the Constitution can have no application.

In this application, the applicants are seeking an order to dispense with the application of the Organic Law to Bougainville. With respect, this Court has no power to dispense with a constitutional law. I cannot find any such power under s 22 of the Constitution. The Supreme Court pointed out in its opinion that it is the prerogative of the Parliament to dispense with the application of the Organic Law to Bougainville by enacting an amendment to the Organic Law. This submission is in effect an invitation to the Court to usurp the function of the Parliament. With respect, this submission is misconceived and I dismiss it.

During submissions, counsel for the applicants referred to a Canadian Supreme Court decision, a Reference by the Governor in Council (Manitoba), [1985] 1 Can. S.C.R 725 (The Manitoba Language Rights Case) to consider, apart from other issues, whether all statutes and regulations in the Province of Manitoba were invalid for not complying with the language requirement under s 133 of the Constitution Act and s 23 of the Manitoba Act. The Court ruled that all statutes and regulations were invalid and unenforceable on the basis that that they did not comply with language requirements. This ruling would create a legal vacuum. In the circumstances, the Court further held:

"There will be a period of time during which it would not be possible for the Manitoba Legislature to comply with its constitutional duty under s 23 of the Manitoba Act, 1870. It is therefore necessary, in order to preserve the rule of law, to deem temporarily valid and effective the Acts of the Manitoba Legislature, which would be currently in force were it not for their constitutional defect. The period of temporary validity will run from the date of this judgment to the expiry of the minimum period necessary for translation, re-enactment, printing and publishing."

In my opinion, the power exercised by the Supreme Court in the Manitoba Language Rights Case to fill the vacuum is not the same as the jurisdiction under s 22 of the Constitution. The jurisdiction granted by s 22 is confined to lack of supporting, machinery or procedural laws to give effect to rights of individuals and power or duty conferred on an authority by the provisions of the Constitution. Whereas, the power exercised by the Supreme Court of Canada is much wider and relates to a vacuum or gap in the law, this power is expressly granted to the National and the Supreme Courts under Schedule 2.3 of the Constitution. Where there is a gap in the law, the Court may formulate a principle of law in accordance with this Schedule unless it is not proper to do so by judicial act (Schedule 2.4). The power or the duty and the machinery for establishing a provincial government are fully set out in the relevant laws and there is no gap in the law.

The fact that there is no Provincial Government in place by virtue of the delays in establishing it, cannot be regarded as lacking supporting, machinery or procedural laws within the meaning of s 22. Nor can it be regarded as having "no rule of law that is applicable" within the meaning of Schedule 2.3 of the Constitution.

The Organic Law provides that, when its provisions come into effect, the previous provincial government is abolished (s 122 of the Organic Law). It envisages an interim period when there may be a gap and provides for an interim provincial government in Part VI Div 3 Subdiv C to fill the gap. The question then arises; whether these provisions are applicable to the situation in Bougainville? Counsel for the respondents submits that these provisions are applicable and therefore the interim arrangements could be made under these provisions. Counsel for the applicants, on the other hand, submits that these provisions cease to have effect at the last general elections in 1997.

I find that the provisions of Part VI Div 3 Subdiv C of the Organic Law are applicable to all provinces where the Organic Law is applicable. For a period of time, the provisions of the Organic Law did not apply to Bougainville by virtue of its own terms. However, as the Supreme Court held, as from the 1st January 1999, the provisions of the Organic Law are applicable. I cannot accept that it was the intention of the Parliament that there would be an interim period when there would be a gap when the Organic Law is eventually applied to Bougainville. I find that the situation in Bougainville can be resolved by an interim provincial government under Part VI Division 3 until the Provincial Government is established under Part II of the Organic Law. In the circumstances, s 22 of the Constitution can have no application.

In the event that I am wrong about the application of the interim provincial government provisions in the Organic Law, there would be a gap in the law so far as an interim provincial government pending the establishment of the Bougainville Provincial Government under the Organic Law is concerned. This would give rise to a consideration of formulating a principle of an underlying law under Schedule 2.3 of the Constitution. However, in considering this, I have to have regard to Sch 2.4 of the Constitution. The Court may, in its discretion, refuse to formulate such a principle if it considers that it is not appropriate to do so by judicial act (The State v Wik Kor [1983] PNGLR 24). I consider that the formation of the interim provincial government, and, what form it should take, is not a matter that should be determined by judicial act. These are matters of sensitive politics that have led to the civil unrest in Bougainville for the last decade. It is not a matter within the expertise of this Court. This comes within the primary role of the National Parliament to legislate. This is a power specifically designated to the Parliament to enact an Organic Law Part VI A of the Constitution.

For these reasons I would dismiss the originating summons.

Lawyers for the applicants: Nonggorr & Associates.
Lawyers for the respondents: Solicitor General.