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Aigilo v Morauta, Prime Minister (No 1) [2001] PGNC 102; N2102 (15 June 2001)

N2102

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO: 411 of 1999

BETWEEN:

PETER AIGILO

Plaintiff

AND:

Sir MEKERE MORAUTA
PRIME MINISTER AND MINISTER FOR TREASURY
CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL

First Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Second Defendant

JOHN WAKON (No.1)

Third Defendant

WAIGANI: KANDAKASI J
2001: 14, 15 June

STATE SERVICES – Attorney General – Powers and functions of - Direction and Control of the Solicitor General by – Constitution s.156(1) – Attorney Generals Act 1989 ss. 7,8 & 13.

WORDS & PHRASES – "Primary" – Principle or first responsibility – Attorney Generals Act s. 13(1).

WORDS & PHRASES – "Instructions" – Ordering or directing only in respect of the Attorney Generals powers and functions and in cases where the Solicitor General is not able to act – Attorney Generals Act 1989 s. 13(2).

WORDS & PHRASES – "Instruct" – Brief out to other lawyers only where Solicitor General is unable to act – Attorney Generals Act 1989 s.7(i).

Cases Cited:

Supreme Court Reference No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178
Inakambi Singorom v. John Kalaut [1985] PNGLR 238 at 241, per Kidu CJ.
PLAR No. 1 of 1980 [1980] PNGLR 326.
Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 125 at 136.
SCR No. 1 of 1978: Re Ombudsman Commission Investigations of the Public Prosecutor [1978] PNGLR 345 at page 389, per Pritchard J.
Peter Ipu Peipul v. Sheehan J., Ori Karapo and Ivoa Geita (constituting the Leadership Tribunal) & Ors ( Unreported and unnumbered judgement of my self delivered on the 25th of May 2001) at page 11.
The State v. Don Hale (1998) SC564 at p.6
In the Matter of Special Reference Under s. 19 of the Constitution and in the Matter of New Ireland Provincial Constitution [1984] PNGLR 81 at page 85 per Kidu CJ.

Counsel:
Mr. Kawi for the Solicitor General
Mr. G. Garo for the Attorney General

3rd August 2001

RULING ON PRELIMINARY ISSUE

KANDAKASI, J: The plaintiff is suing the Defendants for damages for breach of his contract of employment with the State. Before the matter was listed for hearing, the Solicitor General informed the Court that, he was prepared to have the matter settled out of Court as he was of the view that, there was no basis to contest the claim. However, Paul Paraka Lawyers (Paraka) who were engaged by the Attorney General (the AG) took a different approach. They denied the claim and indicated that, they were prepared to go to trial. This gave rise to the preliminary issue of appropriate legal representation of the State, in this action.

I invited all Counsels to address me on that issue. They have ably assisted the Court with their written extracts of arguments and submissions to them on 13th June 2001. I then reserved a ruling on the issue to consider the arguments carefully, as this is the first time the issue has arisen, as far as I am aware.

The brief facts giving rise to the issue are these. On 2nd August 1999, the plaintiff took out these proceedings, initially instituted for judicial review against the State following his termination as Commissioner and Secretary for the Department of Police. Following service of the proceedings on the Defendants, the case for the Defendants was handled by the Solicitor General’s office. Later, the AG briefed the matter out to Paraka on 28th November 2000 pursuant to s.7(i) of the Attorney Generals Act 1989 (AG’s Act). There was no brief or recommendation from the Solicitor General for that to happen. Paraka continued representation for the State until Mr. John Kawi, the incumbent Solicitor General assumed office on 16th March 2001, upon his return from his post-graduate studies overseas. After resuming office, Mr. Kawi had the brief-out reviewed and formed the opinion that rather than continuing with the brief out and incure further costs unnecessarily, the case warranted a settlement. That was consistent with earlier directions and or attempts at settlement with my brother Justice Sheehan.

Based on his opinion, Mr. Kawi advised the Department of Personnel Management (DPM) to have the case settled by paying out the balance of Mr. Aigilo’s contract. That advice was rejected by the DPM, which wanted the matter, defended. Consistent with that stand, Paraka say they have been instructed by the DPM through the AG to defend the case and Mr. Kawi was directed to withdraw from the case.

The main issues for me to determine are these,

(a) To what extent can the AG direct and control the Solicitor General in the performance of his statutory functions and duties prescribed by Section 13(1) of the AG’s Act?
(b) Does the AG have any independent or overriding power over the performance of the powers, duties and or responsibilities of the Solicitor General?

Section 156(1) of the Constitution provides for the Law Officers of Papua New Guinea. They are, (a) the Principle Legal Officer (PLO), (b) the Public Prosecutor, and (c) the Public Solicitor. Subsection (2) then provides that an Act of Parliament shall make provision for and in respect of the PLO. Previously that Act was the Principal Adviser Act (Chp. 54). That Act was repealed and replaced by the AG’s Act: See s. 3 of the AG’s Act.

The Office of the AG is one of two offices created under the AG’s Act. He is the Principal Legal Advisor (PLA) to the National Executive Council (the NEC): See s. 156(1)(a) of the Constitution and s. 3 of the AG’s Act. The AG can either be a politician or a civil servant. The former can be appointed under s. 4. If the Minister for Justice is a fully admitted lawyer under the Lawyers Act 1986, then he becomes the AG and the PLA to the NEC. If however, the Minister for Justice is not an admitted lawyer, then under s.5, the Secretary for the Department of Justice becomes the AG and the PLA to the NEC. The AG is a member of the NEC and is entitled to vote at the NEC unless the AG is a civilian and he attends only to advice the NEC on legal issues: see s. 6 of the AG’s Act.

Sections 7 and 8 of the AG’s Act provide for the powers and functions of the AG. These provisions read as follows:

"7. Duties, functions and responsibilities of the Attorney-General.

The duties, functions and responsibilities of the Attorney General are—

(a) in accordance with Section 8, to carry out the duties of the principal legal adviser to the National Executive Council and related duties; and

(b) to exercise the duties, functions and responsibilities conferred upon the Attorney-General or upon the principal legal adviser by the Constitutional Laws and Acts; and

(c) to exercise the functions vested in the Office of Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings; and

(d) to exercise powers delegated to him by the National Executive Council or a Committee of the National Executive Council; and

(e) in accordance with Section 10, to appoint a lawyer to be the Solicitor-General; and

(f) in accordance with Section 13, to review any decision of the Public Solicitor to refuse legal aid and assistance to a person and to grant such aid and assistance in his absolute discretion following a review; and

(g) in accordance with Section 15, to grant a certificate that a barrister or solicitor practising outside the country is authorized to appear before the National and Supreme Courts; and

(h) in accordance with Section 16, to grant a certificate to IPA that—

(i) a lawyer who is a non-citizen may commence practice as a lawyer in the country; and

(ii) a firm of lawyers registered as a foreign enterprise under the Investment Promotion Act 1992 may continue to practise as lawyers in the country; and

(i) to instruct lawyers within or outside the country to appear for the State in any matter; and

(j) to recommend to the Minister responsible for finance matters the payment by the State of an ex gratia sum of money in cases where the State is not under a legal liability but where it appears nevertheless that the State should compensate a person as an act of grace.

8. Legal advice and opinion.
   

(1) The Attorney-General, as the principal legal adviser, shall tender legal advice and opinion to the National Executive following a request to do so and shall of his own initiative give such advice where it appears to him necessary or appropriate for legal advice to be given on a matter.

(2) The Attorney General may tender or offer legal advice or opinion to the National Executive Council on a matter coming before the Council.

(3) The Attorney General may tender or offer legal advice or opinion to a Minister on a matter relating to the portfolio of that Minister.

(4) On matters affecting the conduct of the business of the State where legal issues arise or might arise, legal advice shall be provided by the Attorney-General, either in his capacity as principal legal adviser to the National Executive or under Subsection (2) or (3) to the exclusion of all other lawyers unless the Attorney-General, in his absolute discretion, authorizes the giving of legal advice by any other person."

(Emphasis Supplied)

A closure reading of these provisions make it very clear that, the AG is the PLA to the NEC on the matters enumerated under ss. 7 and 8 of the AG’s Act. I note that, there is no mention in any of these provisions of any thing to do with any claims by and or against the State before any court or tribunal in the country including the superintendence, control and or direction by the AG over all litigation matters. The nearest we can come to that is s. 7(i) and (j). I will get back to a closer look at these provisions a little later. For now I turn to the second office created by the AG’s Act.

The second office created under the AG’s Act is the Office of the Solicitor General. It is created by s. 10 of the AG’s Act in these terms:

"10. Establishment of Office of Solicitor-General.

(1) The Office of Solicitor General of Papua New Guinea is hereby established as an office within the National Public Service.

(2) The Office of Solicitor-General shall consist of the Solicitor-General and such number of Assistant Solicitors-General as the Attorney-General considers necessary, together with other staff who shall be officers of the National Public Service."

Under s.11, the AG appoints the Solicitor General for a period not exceeding three (3) years. The qualifications for appointment as a Solicitor General are that, the person to be appointed must be a lawyer fully admitted to practice law in accordance with the Lawyers Act 1986 and must have a minimum of five years practice experience as a lawyer: see s. 12 of the AG’s Act.

Section 13 of the AG’s Act, provides for the functions of the Solicitor General in these terms:

"13. Function of Solicitor-General.

(1) The primary function of the Solicitor General is to appear as an advocate for the State in matters coming before the courts in Papua New Guinea.

(2) In the exercise of his function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General."

(Underling mine)

In my view, the use of the word "primary" in subsection (1) is very important. The Oxford Advanced Dictionary of Current English, defines the word to mean "leading in time, order or development". The word has not been considered in any judgement in Papua New Guinea from my search of the reported and numbered judgments to date. Going by the ordinary meaning of the word, I am of the view that, the legislature intended by the use of that word that all litigation, be it in defence of the State or proceeding for and on behalf of the State, before the courts should start with the Solicitor General. He is the principal lawyer for the State and the first in responsibility or is the first point of call in all litigation matters before the courts in the Country. This is why in my view, the setting out of the functions and powers of the AG in sections 7 and 8 of the AG’s Act does not include any thing in particular to do with litigation.

The use of the word "primary" in my view also signifies that another person may have the secondary responsibility only if the Solicitor General who has the primary responsibility is not able to perform his tasks for whatever reason. I will get back to this a little later. For now let me comment on the two different offices established by the AG’s Act.

The legislative scheme and intent is very clear. The AG’s office is completely different from the office of the Solicitor General, although the former appoints the latter. Their powers and functions are different from each other. The former is mainly responsible for advising the NEC on all legal matters while the latter is responsible for appearing in court and representing the State in all matters going to a court whether already in a court or likely to end up in a court. There is no concurrency in their respective powers and functions.

Further, the qualifications of the AG and the Solicitor General also speak clearly of the significant difference in the two offices. No specific qualification is prescribed for the AG unlike for the Solicitor General in s. 12 of the AG’s Act. Before a person could be appointed as the Solicitor General, he is required by s. 12 to be a fully admitted lawyer with a minimum of five years experience. By inference however, it seems the AG should also be a fully admitted lawyer if the AG is the Minister for Justice under s. 4 of the AG’s Act. But there are no minimum years of experience or practice as a lawyer requirement as in the case of the Solicitor General. If the AG is a civilian, there is no expressed requirement for him to be a fully admitted lawyer and to have a number of years practice experience. Nevertheless, by necessary implication from the powers and functions of the AG as set out in sections 7 and 8, the AG has to be a person who is well experienced and with a good working knowledge of the law. This is important because of the importance of the role of the office of the AG.

The difference in the two offices is strengthened by s. 138 of the Constitution. This provision vests the executive power of the people in the NEC. The NEC consists of the Head of State acting with and in accordance with the advice of the NEC and all the Ministers of the State including the Prime Minster: see sections 139 and 149 of the Constitution. It follows therefore that, there are two different offices with two different powers and functions. The AG is the PLA to the NEC or the executive arm while the Solicitor General is the principal lawyer in all litigation matters for and on behalf of the main and overall body, the State. This is important because there may be instances of the executive not necessarily representing the interest of the State but its own say for political convenience or some sectional or personal interest. In such a case, the AG could not really be said to be representing the interest of the State and may end up compromising the State’s interest. Only the Solicitor General could provide a buffer and an independent and professional protector of the States interest. This is why I believe Parliament deliberately provided for the two different offices and did not provide for a control of the Solicitor General by the AG.

Bearing the differences in the offices of the AG and the Solicitor General in mind, I proceed to consider the issues presented. Mr. Garo arguing for the AG argues that, the AG does have the power to control, direct or otherwise supervise the Solicitor General in the exercise of the latter’s functions by virtue of s. 7(e) and (i), s.13 (2) and s.8 of the AG’s Act. This is so he submits, first because the AG has the power to appoint the Solicitor General. By reason of that power, the AG has control over the Solicitor General. The unspoken argument there is that, the Solicitor General is obliged to carry out the wishes of the AG because a failure to do so may result in his removal from office. Further he argues that, by virtue of s.13 (2) of the AG’s Act, the AG has the power to control and direct the way in which all litigation involving the State should be conducted in much the same way a client may dictate to his lawyer. Secondly, Mr. Garo argues that the NEC is the chief executive of the State in charge of the day to day administration of the State’s affairs. Accordingly, the NEC is the State for the purposes of the AG’s Act and any claims by and against the State. The AG therefore, has overall power of control and direction over all legal issues concerning the State, including any litigation.

As noted earlier on, there is no expressed provision either in s.7 or any other provision in the AG’s Act granting the AG any power of direction or control over the exercise of the powers and or functions of the Solicitor General. The closest we can come to is s. 7(e), (i)(j) and s.13 (2) of the AG’s Act. The first of the three provisions, 7 (e) speaking of the duties and functions of the AG reads, "in accordance with Section 10, to appoint a lawyer to be the Solicitor-General." This only concerns the appointment of a lawyer to be the Solicitor General. To the extent that the AG has the power to appoint the Solicitor General, he could appoint a person of his choice who might be inclined to carrying out the wishes of the AG rather than allow himself to be dictated by the interest of the nation. That in my view however, does not give the AG any power or right of direction, control or supervision over the Solicitor General in the exercise of the latter’s powers and functions.

Once an appointment is made, that is where the powers and the functions of the AG end. This provision gives no other power to the AG after an appointment is made. This is critically important for a country like ours because, the Solicitor General should be left to exercise his powers and functions without fear or favour and be only guided by what he considers to be in the best interest of the nation in his professional assessment. The legislature in my view, did not make any mistake in not granting any power of direction or control of the Solicitor General to AG in the exercise of the Solicitor General’s powers and functions, in order to allow for a system of check and balance and to avoid undue influence and abuse for political or corrupt gains. For as already stated, the interest of state or nation may not necessarily be the interest of the executive (NEC) in every case. There may even be instances of conflict of interest between the two. Hence, the need for two separate offices and the lack of direction or control of the Solicitor General by the AG.

The case of Supreme Court Reference No. 1 of 1982: Re Philip Bouraga [1982] PNGLR 178 may offer some assistance in determining the issue presented in this case. Mr. Kawi submits that, although the present case does not involve a dispute between a Minister and a Departmental Head, the principles of law enunciated in that case would nonetheless apply. In that case, the Supreme Court considered a number of constitutional issues. One of the issues was whether there was any power of control or direction of the Police Commissioner by the Police Minister. The Court considered the provisions of ss. 148 (powers and functions of a Minister), 193 (appointment of certain officers, including the Police Commissioner), 196 (control of the Police Force) and 197 (functions of the Police Force) of the Constitution. Of these, what the Court said in relation to sections 148 and 196 are relevant. I therefore accept Mr. Kawi’s submission and allow myself to be guided by the principles enunciated by the Supreme Court to determine the issue before me.

What did the Supreme Court say about sections 148 and 196 of the Constitution? First, the Court quoted the provisions of section 148 of the Constitution, which reads:

"(1) Ministers (including the Prime Minister) have such titles, portfolios and responsibilities as are determined from time to time by the Prime Minister.

(2) Except as provided by a Constitutional Law or an Act of the Parliament, all departments, sections, branches and functions of government must be the political responsibility of a Minister, and the Prime Minister is politically responsible for any of them that are not specifically allocated under this section.

(3) Subsection (2) does not confer on a Minister any power of direction or control."
(Emphasis mine)

Then, the then Chief Justice, Sir Buri Kidu said these as to the meaning of this section at pp. 185 & 186:

"It does not say that a Minister has no power of direction or control whatsoever over a department, section, branch and function of government of which he/she has political responsibility. It is my view that s. 148 merely says that the fact that it (i.e. s. 148) vests in a Minister the political responsibility over a department, section, branch, etc. in itself confers no powers of direction or control over those bodies. I cannot also see that s. 148 prohibits Parliament from making laws vesting in Ministers power of direction and control over matters for which they have political responsibility.

...

It is quite clear that s. 148 of the Constitution does not give the Minister for Police any power of direction or control over the Commissioner of Police. The Police Act does not confer on the Minister any power of direction or control over the Commissioner of Police or the police force. Neither s. 10 nor s. 12 of that Act gives such powers to the Minister

...

Although the Minister for Police is not specifically empowered to direct and control either the force or the Commissioner, or the Secretary for Police, he has political responsibility for them. He has therefore the duty to ensure that the force and the Commissioner have funds to carry out the functions. He is also responsible for speaking on their behalf when they are under criticism. The Minister, therefore, has the right to be informed of all aspects of police operations. He has the right to request the head of the police force to provide information relating to the force."
(Emphasis mine)

The other members of the Court, Kapi J (as he then was) and Pratt J expressed similar views. Kapi J (now DCJ) went on to specify what the phrase "political responsibility" means in these terms at p. 196:

"What is the political responsibility of the Minister? The term is not defined. In my opinion the political responsibility of the Minister involves:

(a) all matters concerning a department, section, branch or function of government which require the deliberations or decision of the National Executive Council as a matter of responsibility of the National Executive Council as the executive government of Papua New Guinea. (See s. 149(3) of the Constitution.) It would be the political responsibility of a Minister of the particular department, etc., to submit, advise, inform, report or brief the National Executive Council to enable the National Executive Council to make decisions as the executive government of Papua New Guinea regarding the particular branch of government. This would include such matters as budget priorities and allocations.

(b) inform, report or answer questions in the Parliament or the public through news media regarding any matter concerning the function of the government as a member of the Cabinet which is responsible for the executive arm of the Government.

This responsibility is more in the nature of doing the groundwork for the National Executive Council for purposes of executive decisions under s. 149(3) of the Constitution and simply informing the public through Parliament or news media of the workings of the executive arm of the government on the particular branch or department of government. That is as far as the political responsibility of a Minister can go."

His Honour went on to add this at p. 197 to what Kidu CJ said:

"The answer to this question is to be found in s. 148(3) of the Constitution. He who has no power of direction and control over a department, sections branch or function of government is powerless against that department, etc. That is to say that the power is not there from which a Minister can issue orders which form the subject of the charges against the Commissioner.

The lack of power of direction and control by a Minister under s. 148(3) relates to the political responsibilities. If it is desired for a Minister to have any power of direction or control outside those political responsibilities then those powers may be given to him by another provision of the Constitution or an Act of Parliament. See, for instance, s. 4 of Industrial Organisations Act 1973—Ch. 173.

The only thing s. 148(2) confers on the Minister is the right to request (and not the power to order) anything for the purposes of his political responsibility."

(Emphasis mine)

Pratt J in summing up is judgement on that issue said at p. 212 that:

"The Minister for Police does not have power of direction or control over the Commissioner of Police or the Secretary for Police such that he may issue any orders in the nature of those which form the subject of the disciplinary charges laid before the tribunal, but he does have the right to request such information and to be furnished with same."

Next, the Supreme Court also quoted the provisions of section 196 of the Constitution, which stipulates that:

"196. Control of the Police Force.

(1) The Police Force is subject to the control of the National Executive Council through a Minister.

(2) The Minister has no power of command within the Police Force, except to the extent provided for by a Constitutional Law or an Act of the Parliament."

Kapi J (as he then was) constructed the meaning of this section in this way at page 199:

"I now consider the meaning of ‘subject to control’ in s. 196(1) of the Constitution. The words ‘subject to’ have been considered by the courts. They are words of limitation. They imply that a power or function is given to a body and that power is limited by the body to which it is made subject. See Smith v. London Transport Executive [1951] A.C. 555 at p. 569 and p. 577. C. & J. Clark v. Inland Revenue Commissioners [1973] 2 All E.R. 513 at p. 520. I adopted these cases in Michael Ayakamp v. Guringng B. [1981] PNGLR 531.

In the instance case, the functions:

(a) to preserve peace and good order in the country, and;

(b) to maintain and enforce the law;

are given to the police force under s. 197(1) of the Constitution.

These functions are made subject to the control or direction of the National Executive. This means that the police force shall carry out those functions within the terms of s. 197(1) but where there is a direction given by the National Executive Council in relation to those functions that direction must be followed. The National Executive Council may give directions on these functions with the exception of laying, prosecuting and withdrawing charges in respect of offences (s. 197(2)). The control given by this provision must be confined to matters of policy regarding the police force as a whole. It is not intended for the day to day running of the police force."

(Emphasis mine)

Kidu CJ said the comments he made in relation to the function of the Minister (the relevant parts of which have already been quoted above) equally apply to the meaning of s.196 so as to say the concept of "control" within the meaning of s. 196 is only in relation to policy matters through the NEC. Pratt J expressed a similar view at p. 202 of the judgement in these terms:

"Executive government of course is ultimately answerable to the people (s. 141). The political responsibility of the Minister to the public via Cabinet and Parliament does not however carry a power of direction or control (s. 148(3)), on the day to day workings of the department or body which make up the Minister’s area for concern, but obviously the Minister must be kept fully briefed on what has occurred and is planned otherwise his "political responsibility" would be an empty shell."

(Underling mine)

The general principle of law emerging from all these, subject to any qualification imposed by any constitutional law or an Act of Parliament is simple. Any power of direction or control over the exercise of a civil servant’s powers and functions by the executive (the NEC) must be specifically provided for in a constitutional law or an Act of Parliament. Where such provision is made, it is only over policy matters and not the day to day administration or performance of a civil servant’s duties and responsibilities.

In the present case, I find there is no expressed power under the AG’s Act for the AG to direct and or control the Solicitor General in the exercise of his powers and functions. It follows therefore, as Kapi J (as he then was) said in the Bouraga case (supra) that the lack of power in s. 7 or any other provision in the AG’s Act or any other law, means the AG has no such power. If Parliament intended that the AG should have a power of direction and control over the performance of the Solicitor General’s powers and functions, specific legislative provisions should have been made. Counsel acting on the AG’s instructions in this case, Mr. Garo has not drawn my attention to any provision either in the AG’s Act or else where, which provides in such terms.

Even if there are or provisions were made to vest in the AG a power of direction and control over the powers and functions of the Solicitor General, that would in my view, be restricted to any policy matter, over which the AG would be responsible. For example if the AG was required by the NEC to provided information as to the operation of the office of the Solicitor General for budgetary considerations, the AG would request the Solicitor General to provide the appropriate information. Similarly, if the NEC wanted a legal advice on any matter and the AG, considers it necessary for an input from the Solicitor General he could direct the Solicitor General to make such inputs.

As the Supreme Court said in the Bouraga Case (supra), it is necessary for administration of the affairs of the nation that, the civil servant is obliged to furnished such information, advice and assistance as the executive arm of the State may require from time to time. This duty or obligation of the civil servants is logically not removed in any setting that I am aware of. Certainly that duty or obligation has not been removed in the case of the Solicitor General in so far as it concerns its office.

I now proceed to consider whether there is an element of control within the meaning of section 7(i) and s. 13(2) of the AG’s Act. Section 7(i) states that one of the AG’s functions is "to instruct lawyers within or outside the country to appear for the State in any matter" while s. 13 (2) stipulates: "In the exercise of his function under Subsection (1), the Solicitor-General shall accept instructions only from the Attorney-General."

It is settled law in our jurisdiction that the provisions of the Constitution or an Act of Parliament or any other law should be given their fair and liberal meaning so as to give effect to the purpose and intend of the provision or law in question: see Inakambi Singorom v. John Kalaut [1985] PNGLR 238 at 241, per Kidu CJ; PLAR No. 1 of 1980 [1980] PNGLR 326; Norah Mairi v. Alkan Tololo & Ors [1976] PNGLR 125 at 136; and SCR No. 1 of 1978: Re Ombudsman Commission Investigations of the Public Prosecutor [1978] PNGLR 345 at page 389, per Pritchard J and Peter Ipu Peipul v. Sheehan J., Ori Karapo and Ivoa Geita (constituting the Leadership Tribunal) & Ors ( Unreported and unnumbered judgement of my self delivered on the 25th of May 2001) at page 11.

The fair and liberal meaning of the words in s. 7(i) and s. 13(2) of the AG’s Act is very clear. The purpose and or intend of Parliament is also very clear. I have already expressed the view that, s.13 (1) by the use of the word "primary" vests all litigation functions for and on behalf of the State in the Solicitor General. This follows on from the creation of the office of the Solicitor General by s. 10 of the AG’s Act. The office is a team of lawyers headed by the Solicitor General who is required to have a minimum of 5 years practice experience as a lawyer. In that context, the primary purpose of creating that office is to conduct all litigation for and on behalf of the State at the first instance. In other words, where the State becomes a party in any matter before the Courts in Papua New Guinea the person having the primary duty and or responsibility at the first place is the Solicitor General.

As the State is such a big entity, it would neither be feasible nor would it be appropriate or proper for the office of the Solicitor General to be used for other purposes. In other words, it would not be proper for the office of the Solicitor General to be used for business other than the business of the State. It follows therefore logically that, the Solicitor General should be restricted as to from where or whom he should receive his instructions in terms of who he should act for. That is why in my view, s.13(2) is there to ensure that the office of the Solicitor General is not used for any purpose other than the primary function specified under subsection (1). This interpretation accords well with the interpretation I have just given to s. 7(e) of the AG’s Act, where I concluded that, the Solicitor General is not subject to any control or direction of the AG in the exercise of the Solicitor General’s powers and functions.

The submission for the AG by his counsel, Mr. Garo is for me to rule that s. 13 (2) empowers the AG to direct or control the way in which the Solicitor General is to carry out his functions either in a specific matter or generally. He submits the word "instruction" in s.13(2) should be taken to mean the same as instructions in which a client may instruct and therefore direct and control the way in which his lawyer should conduct his case.

There are at least three serious problems with this. First and foremost, it ignores Parliament’s intention behind the creation of the office of the Solicitor General and the AG. If Parliament wished to have the Solicitor General under the power of direction and control of the AG, it could have clearly expressed it or simply authorise the AG to employ lawyers under is direction and control to conduct litigation on behalf of the State. However that is not what Parliament did. It clearly wanted two separate offices and created them. That intention should not be ignored in the disguise of statutory interpretation. Instead, the court is obliged to give meaning and effect to the parliamentary intent.

Secondly, it also ignores the continuing concern of Parliament to ensure there is a check and balance in the exercise of the powers of the executive and the performance or discharge of the duties and responsibilities of civil servants, both in the interest of the nation. This is very important in my view because, the AG can either be a civilian or a politician in the form of the Minister responsible for Justice by reason of ss. 4 and 5 of the AG’s Act. There is no distinction on the powers and functions of a politician AG and a civilian AG. The only distinction is under s. 6 of the AG’s Act. If the AG is a civilian, he can attend the NEC only in relation to a legal issue before the NEC and he does not have any voting power.

The ruling in the Bouraga Case (supra) is directly relevant on this point in my view. As noted earlier in this judgement, s. 196 of the Constitution specifically and expressly provides for the control of the Police Force by the NEC. That control has been held to be only in respect of policy matters. It does not cover the day to day administration or operation of the Police Force. The running of the affairs of the Police Force in the discharge of the powers and functions of the Police Force is vested in the civil servants headed by the Police Commissioner.

In this case, there is no expressed provision on the question of control of the Solicitor General. I have already ruled that, that does not precluded the AG from requesting information concerning the office of the Solicitor General on policy matters. In that regard, the AG may have an implied power of direction and control. Nevertheless it does not and could not in my view, include a power to direct the Solicitor General as to how he should conduct a litigation either generally or in a particular matter and the day to day administration of the office of the Solicitor General. To rule otherwise is to open the floodgate for a merging of policy (politics) with administration which are to be kept separate under our constitutional scheme of administration of the affairs of the State.

It is common knowledge that, there is a high level of corruption in government administration in our country today. There appears to be ready influences and or interferences and or directions by our political leaders in the administration of the affairs of the State for their own personal gain. The effect of this is very devastating for the nation and its people. Since independence, millions of Kina have been generated through the extraction and sale of some of our natural resources such as gold, timber and fish. Yet to this date, we are still poor and are forever begging the World Bank and International Monetary Fund and other countries to assist us with our finances mainly because of political interference in the good administration of the affairs of the nation.

This Court is obliged to take into account the wishes and aspirations of the people including the problems faced by them. This so when it comes to interpreting and applying the laws of the land: see The State v. Don Hale (1998) SC 564 at p.6 and or when it comes to the development of the underlying law under Sch. 2.2 of the Constitution. In my view, the National Goals and Directive Principles best represent the wishes and aspirations of our people. These principles cover the development of a person to the fair distribution of the national wealth. These aspirations are yet to be fully realised because of corruption in the system of government administration cause amongst others, by political interference in all manner and form. Indeed counsel for the AG in this case, Mr. Garo, acknowledged this problem during arguments in court. Given these, I am not prepared to accept Mr. Garo’s arguments. If I accept his submissions, I will pay leap service to the wishes and aspirations of the nation and become oblivious to the problems high lighted. I will also be going contrary to the intent of Parliament to have a clear demarcation between the political leadership and the civil servants as elaborate in the Bouraga Case (supra).

Thirdly, the submissions in effect are asking me to rewrite the law and put in something Parliament did not include. It is a well-settled principle of statutory interpretation that the Courts can only interpret and apply what Parliament as enacted. Care must always be taken not to re-enact an Act of Parliament in the disguise of interpreting it. This has been made clear in a large number of cases such as In the Matter of Special Reference Under s. 19 of the Constitution and in the Matter of New Ireland Provincial Constitution [1984] PNGLR 81 at page 85 per Kidu CJ. The Courts must be guided by that principle even in cases where it appears that Parliament has made a mistake because it is also a well-accepted principle of statutory interpretation that Parliament never makes mistakes. If there is a mistake, it is up to Parliament to correct and is not the duty of the courts to do so. There is no issue taken on these principles by counsel for the AG.

Now I turn to the meaning of the term "instructions" as used in s.13 (2) and the word "instruct" as used in s.7 (i) of the AG’s Act. I note that the AG’s Act does not define these term. The ordinary English meaning of the word instruction according to the Oxford Advanced Dictionary of Current English has two meanings. The first means the giving of lessons as in a school. The second is giving of orders or directions. The second meaning is relevant for our purpose.

If the possible meanings of the word "instruction" were to be considered on its own, it would accord well with the submissions for the AG. However, this Court is as already noted is obliged to give a fair, large and liberal meaning to the words of the legislature so as to give effect to the intent or purpose of Parliament in enacting the law at the first place. I have already covered the intent of parliament in enacting the AG’s Act I have also expressed the view that s.13 (2) is there to prevent the Solicitor General from receiving instructions from other persons such as private individuals so as to enable him to focus only on litigation by and against the State. Besides it makes no sense to adopt the meaning proposed for the AG when s.13 (1) already imposes a primary duty or responsibility on the Solicitor General to appear in all litigation matters involving the State. If it were intended that the Solicitor General should act only on the instructions of the AG, clear expression of that would be found in s.13. Words like "only in accordance with the instructions of the Attorney General" or "the Solicitor General shall appear in court in accordance with the instructions of the Attorney General", could have been used. But no such words are employed in section 13 (1) or (2) or an addition provision to spell that out.

Mr. Kawi argues that, s.13 (2) as two purposes. The first is as described above and the second is to allow for the AG to instruct the Solicitor General on any of the matters falling within the powers and functions of the AG under ss.7 and 8. I find persuasion in this argument for the reasons already given as to the first purpose of s. 13(2). On the second purpose, I am of the view that, given the experience and position of the Solicitor General, the AG might find it useful to instruct the Solicitor General to provide advice to NEC or to him on matters coming within his responsibility. If the AG gives such instructions then by virtue of s. 13(2) the Solicitor General is obliged to accept it and render the service required of him. This makes sense both on its own and in the context of s. 7(i).

Section 7 (i), empowers the AG "to instruct lawyers within or outside the country to appear for the State in any matter." Again the true meaning and intent of this provision has to be obtained by reference to the context in which it appears in the AG’s Act and the purpose and or intent of Parliament as expressed in that provision. Going by the plain and ordinary meaning of the word used, this function clearly has nothing to do with directing, controlling or otherwise supervising the performance of the powers and duties of the Solicitor General. Instead it concerns instructing in my view, lawyers other than the Solicitor General. This is not surprising in my view because, the Solicitor General is not empowered to brief out or instruct other lawyers to act for the State in situations where his office is unable to act for the State. In my view there are two situations in which this power could be exercised but none of which grants a power of direction and control to the AG over the functions of the Solicitor General.

The first situation is in a case where the Solicitor General is unable to fully discharge his duties and or obligations may be because of say lack of available expertise in a particular case or that all his officers are fully committed. In such a situation, the Solicitor General may brief another lawyer but he has no power to do so. If such a situation arises, the Solicitor General who has the primary responsibility over the conduct of litigation for the State has to make that decision. Once such a decision is made he would then have to consult the AG for a brief out or the appointment of another lawyer. The AG would, if he considers appropriate, exercise his powers under s. 7(i) and instruct another lawyer. The brief out should be subject to the Public Finance Management Act, more particularly the tender requirements to ensure there is transparency and the State gets the best value for money and on merit. It should also be subject to the governments’ policy directives or guidelines over which the AG is in charge.

Indeed during submissions it was made clear that, the established practice is that all-brief outs commence with a recommendation from the Solicitor General. The AG because of the provisions of s. 13(1) of the AG’s Act has not assumed any power to independently brief any other lawyer. The brief out in this case is one of the few in recent times the AG has chosen to brief out on his own initiative. Hence the cause for the preliminary issue raised in this case. I am of the view that the practice that has been established is correct and both the AG and the Solicitor General should endeavour at all times to maintain and follow that. This is very important, for two reasons. First because it accords well with s.13(2) under which the Solicitor General has the primary responsibility and only if he is unable in his sole judgement to discharge that responsibility to the best of his abilities then he should decide to brief out through the AG. Secondly it is important because, it would help eliminate the incurring of expensive legal costs and avoid duplication of representation for the State and possibly a case of conflicting representation for the State as in this case.

In my view, these are the only to situations in which the provisions of s. 7(i) could have any useful meaning and purpose. They accord well with the scheme of the AG’s Act and provide for a check and balance in the exercise of the respective powers and functions of the AG and the Solicitor General. It also keeps in tact the demarcation between politics and a fair administration of the affairs of the State, without any fear or favour. If the position was otherwise then, this would be open for abuse and corruption of the system provided for by Parliament as discussed above. The AG would usurp the powers and functions of the Solicitor General. Given the current inclination of people in influential positions in government and statutory corporations almost readily going at will to enter into contracts and brief out to very expensive law firms much to the substantial financial losses to the State and the people, the Courts should be very slow to accept submissions such as the ones that are being advanced by Mr. Garo for the AG. People in authority have been and are continuing to blatantly breach clear legislative provisions because of greed and a drive for personal gain and interest more than the interest of the nation. The submissions for the AG if accepted would pave the way for more corruption and substantial loss to the vast majority of our people. Millions of Kina are now being wasted in judgements and service contracts of all sorts without any gain to the nation. It is these kind of conduct the legislature intended to protect against through the AG’s Act and the provisions under consideration.

The powers vested in the AG under s.7 (i) in particular and the AG’s Act generally as well as the Constitution and any other law is not absolute. They have to be exercised for and in the best interest of the State. They are subject to important legislations like the Public Finance (Management) Act. Just because the AG has the power to instruct other lawyers by virtue of s. 7 (i) of the Act, it does not follow that he has the right, the power or the authority to go around and instruct other lawyers. He must first be satisfied that the Solicitor General is unable to fully render the required service. He can only arrive at a decision on the basis of a submission to that effect to him from the Solicitor General. Unless there is a request for a brief out on good basis, such as lack of expertise or a matter surpassing the abilities of the Solicitor General, the AG in my view, has no power to instruct other lawyers on any litigation matter because the Solicitor General has the primary responsibility over them.

Even if the AG has the power to instruct the Solicitor General under s.7 (i) of AG’s Act, that would in my view be restrict to the matters in which the AG is responsible for in his capacity as the PLA to the NEC. This does not give him a power of direction and control over the exercise of the Solicitor General’s functions under s. 13(1) of the AG’s Act.

This is apparent from a consideration of a number of Constitutional provisions. First the State is created by s. 1 of the Constitution in this terms:

"1. "The Independent State of Papua New Guinea.

(1) Papua New Guinea is a sovereign, Independent State by the name of the Independent State of Papua New Guinea.

(2) The name of the Independent State of Papua New Guinea and its variants shall be protected by an Act of the Parliament."

This is obviously the nation or the country under its corporate entity called the Independent State of Papua New Guinea. That entity has three principle arms by virtue of s.99 of the Constitution. These are the, (a) the National Parliament, which is the legislature with an unlimited power to make laws but subject only to the Constitutional Laws, (b) the National Executive; and (c) the National Judicial System. Each of these is a part of the State but not the State on their own.

Secondly the NEC is established under s.149 of the Constitution in these terms:

"149. The National Executive Council.

(1) A National Executive Council is hereby established.

(2) The Council shall consist of all the Ministers (including the Prime Minister when he is present as Chairman).

(3) The functions of the Council are—

(a) to be responsible, in accordance with this Constitution, for the executive government of Papua New Guinea; and

(b) such other functions as are allocated to it by this Constitution or any other law.

(4) Except where the contrary intention appears, nothing in this Constitution prevents the powers, functions, duties or responsibilities of the Council from being exercised, as determined by it, through a Minister.

(5) Subject to any Organic Law or Act of the Parliament, the procedures of the Council are as determined by it".

Earlier the Constitution vests the executive power of the people in the Head of State who is part of the NEC (s. 139 of the Constitution) by s. 138 in these terms:

"138. Vesting of the executive power.

Subject to this Constitution, the executive power of the People is vested in the Head of State, to be exercised in accordance with Division V.2 (functions, etc., of the Head of State)".

I note with interest, that none of this provision include the "State" or the "Independent State of Papua New Guinea", or "the National Public Service" or "State Services" which are separately provided for in the Constitution. These provisions provide in clear terms that, NEC is only the executive arm of the state but not the "the State".

Following on from the above, there should be no room for doubt or argument that the AG being the PLA to the NEC is not necessarily PLA to the State but one of the arms of the State. However to the extent that the NEC is empowered with the executive power of the people, any advise to it is an advice to the State. But that is not the same to say the AG has a power of direction and control over the Solicitor General in the performance of his duties under s.13 (1). The only exception is where the AG has instructed the Solicitor General in relation to a matter falling within his powers and functions pursuant to s.7(i) and 7(j).

I have already looked at the scope of the power under s.7(i). This leaves me to consider s.7(j) which reads.

"(j) to recommend to the Minister responsible for finance matters the payment by the State of an ex gratia sum of money in cases where the State is not under a legal liability but where it appears nevertheless that the State should compensate a person as an act of grace".

This provision in my view does not concern any power of direction or control of the Solicitor General of the conduct of any litigation by the AG. It may however concern a matter that may be the subject of a litigation either already in court or has the potential of ending up in court. Following on from my view that the Solicitor General has the primary responsibility on all litigation matters for and on behalf of the State, he has the right and power of first call to say whether a matter should be resolved in terms of s.7 (j). In the interest of transparency and to avoid a possible abuse of power, this check and balance of power should always be observed and followed. In any case, this power is not absolute. It should in my view be exercised after taking into account all of the relevant factors in terms of the benefits to the State before this power can be exercised. There should be inputs from the Solicitor General as to the possible costs and benefits in settling a matter under s.7 (j). A failure to observe this may result in abuse by those in power to benefit themselves in the disguise of a benefit to the State. In my view, only when the person charged with the primary responsibility of conducting all litigation for and on behalf of the State makes an assessment and recommends the exercise of this power and is exercised can there be a proper exercise of power.

Apart from the provisions of s. 7(i) and (j) of the AG’s Act, there is no power in the AG to either control or direct or even have a say in the conduct of any litigation for and on behalf of the State. Instead the relevant provisions make it clear that, the AG is the PLA to the NEC or the Head of State, Ministers and the National Executive Council as a collegiate body. It is not the AG’s role to advise a different entity, the Independent State of Papua New Guinea. This distinction is important because the NEC may not necessarily represent the interest of the State in every case. It may be driven at times by interests other than the interest of the Nation. This could place the AG in a conflict of interest situation. He may be inclined to pursue the interest of the NEC say for political convenience or some other personal or sectional interest. That is why Parliament saw it necessary and provided for the two different offices of the AG and the Solicitor General. In any event, providing legal advice in my view is not the same as conducting litigation or to use the word of the AG’s Act, "appear as an advocate for the State". There can be no other functions outside this.

In the end, I find the AG has no power of direction or control over the exercise of the Solicitor General’s powers under the AG’s Act. I also find that the Solicitor General has the primary responsibility over the conduct of all litigation in all claims by and against the State. As such he has the first say both for a brief out or the instructing of another lawyer under s.7(i) and a recommendation or request for payment under s.7(j). Unless the Solicitor General has had his input on these powers, there could be no valid exercise of power. Consequently any action taken by the AG without an input from the Solicitor General would be illegal and therefore null and void. It follows therefore that, if there is a conflict in representation on behalf of the State in any litigation or exercise of the AG’s powers under 7(i) and 7(j) in so far as it concerns any litigation whether on foot or likely to be instituted, the representation of the Solicitor General prevails unless there is very good reason(s) to override it. The onus to override the views of the Solicitor General rests with the AG.

As to how this ruling should affect the substantive or the rest of the proceedings has not been addressed. I will leave these to the parties to take up after the delivery of this judgment.
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Lawyer for Solicitor General : John Kawi - Solicitor General
Lawyer for Attorney General : Paul Paraka Lawyers