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Gulf Provincial Government v Momis and Electoral Commission [1991] PNGLR 389 (8 November 1991)

Papua New Guinea Law Reports - 1991

[1991] PNGLR 389 - Gulf Provincial Government v Momis and Electoral Commission 

[1991] PNGLR 389

N1013

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

GULF PROVINCIAL GOVERNMENT

V

MINISTER FOR PROVINCIAL AFFAIRS

AND ELECTORAL COMMISSION OF PAPUA NEW GUINEA

Waigani

Kapi DCJ

24 October 1991

8 November 1991

STATUTES - Operation and effect - Commencement - Provincial law - Methods of - Where notice of not given to Minister - Text must be forwarded by registered mail - Organic Law on Provincial Governments (Ch No 1), ss 35(3), 36.

The Organic Law on Provincial Governments (Ch No 1), provides:

s35:

“(3)    Before a provincial law is made, the Provincial Executive shall give to the Minister responsible for provincial affairs by registered post, or otherwise in the quickest, practicable manner, copies of the text of the proposed law and of any amendments made or proposed to be made to the proposed law.”

s36:

“(1)    Notwithstanding anything in any provincial law, except with the consent of the Minister responsible for provincial affairs a provincial law shall not come into operation until the end of the period of thirty days after the provincial government has forwarded to the Minister by registered mail, a copy of the text of the law.

(2)      If copies of the text of the law as proposed and of any amendments to it have been given in accordance with section 35(3), the period referred to in sub-section (1) runs from the date on which the notice of making of the law is forwarded in the quickest, practicable manner to the Minister responsible for provincial affairs.”

Held

Where a notice of a proposed law is not given to the Minister for Provincial Affairs under s 35(3) of the Organic Law on Provincial Governments (Ch No 1) and a law is passed by the Provincial Assembly, s 36(1) of the Organic Law requires that the text of the law must be forwarded to the Minister by registered mail. For the purposes of the law coming into operation, the thirty days stipulated under s 36(1) is calculated from the date of postage by registered mail.

Summons

This was a summons for declarations as to the validity of a date fixed for elections under a Provincial Constitution.

Counsel

T M Rei, for the plaintiff.

P Ame, for the defendants.

Cur adv vult

8 November 1991

KAPI DCJ: At the time the present Gulf Provincial Assembly was elected, s 29 of the Provincial Constitution provided that elections should be held three months before the fourth anniversary of the day fixed for the return of the writs for the last previous general elections. On this premise, the elections were scheduled for 10 October 1991.

By originating summons filed 4 October 1991, the plaintiff claimed a number of declarations. The central issue which is raised by this summons is that s 29 of the Provincial Constitution has been amended and therefore the provincial elections should not be held on 10 October 1991. By a notice of motion filed on 9 October 1991 an application was made by the plaintiff to restrain the defendants from going ahead with the elections. I granted this order until the merits of the application are dealt with by the court.

On 22 June 1990, the Gulf Provincial Assembly passed the Provincial Constitutional (Amendment Act No 2) of 1990. By s 2 of the Amendment Act, s 29 of the Provincial Constitution was amended by deleting the words “fourth anniversary” appearing in subs 1(a) and subs (b) and substituting them with the words “fifth anniversary”. If this new amendment has come into operation, then the elections would be held three months before the fifth anniversary of the day fixed for the return of the writs for the last previous general election. The question which has arisen for consideration is whether the amendment has come into operation. This matter is governed by Pt VI, Div 6 of the Organic Law on Provincial Governments (Ch No 1). The relevant provisions are as follows:

“34.    Application of Division 6

(1)      Subject to Subsection (2), this division applies in relation to all provincial laws (including any amendments to the constitution of a province made or to be made otherwise than by an organic law), other than provincial laws so far as they impose taxation.

(2)      This Division does not affect the operation of Part VIII.

35.     Notice of provincial laws

(1)      Failure to comply with this section in relation to a law does not invalidate the law.

(2)      If:

(a)      the provincial government asks the Minister responsible for provincial affairs, that the provisions of this section be waived in relation to any proposed provincial law, or to any proposed amendments to a proposed provincial law, and

(b)      the Minister thinks that it is in the public interest to do so, the Minister may, in writing, waive the requirements of this section in relation to the proposed law or to all or any amendments to the proposed law.

(3)      Before a provincial law is made, the Provincial Executive shall give to the Minister responsible for provincial affairs by registered post, or otherwise in the quickest, practicable manner, copies of the text of the proposed law and of any amendments made or proposed to be made to the proposed law.

36.     Commencement of provincial laws

(1)      Notwithstanding anything in any provincial law, except with the consent of the Minister responsible for provincial affairs a provincial law shall not come into operation until the end of the period of thirty days after the provincial government has forwarded to the Minister by registered mail, a copy of the text of the law.

(2)      If copies of the text of the law as proposed and of any amendments to it have been given in accordance with Section 35(3), the period referred to in Sub-section (1) runs from the date on which the notice of making of the law is forwarded in the quickest, practicable manner to the Minister responsible for provincial affairs.

37.     Disallowance of provincial laws

(1)      Subject to Sub-section (2) and Sub-section (4), the National Parliament may, by a two-thirds absolute majority vote, by resolution disallow any provincial law, if in its opinion the disallowance is in the public interest.

(2)      The National Parliament shall not disallow a provincial law unless, at least two months before the disallowance resolution is made, the Parliament has, by a simple majority vote, resolved to consider the matter of the disallowance.

(3)      The Speaker of the National Parliament shall, by the quickest, practicable means, formally advise the provincial legislature concerned of the making of the resolution under Sub-section (1).

(4)      A resolution under Sub-section (1) shall not be made unless the Minister responsible for provincial affairs has, not less than thirty days before the date on which it is proposed to make it, consulted with the Provincial Executive on the issues related to the provincial law in question that are both in the proposed disallowance.”

Under these provisions, there are three ways in which a provincial law passed in a provincial assembly may come into operation. First, under s 35(3), a provincial executive may give copies of the text of a proposed law and of any amendments made or proposed to be made to the proposed law, to the minister responsible for provincial affairs. This may be forwarded by registered post, or otherwise in the quickest, practicable manner. Where this is done and the proposed law is passed in the Provincial Assembly, that law comes into force thirty days from “the date on which notice of the making of the law is forwarded in the quickest, practicable manner to the Minister responsible for provincial affairs”: s 36(2) of the Organic Law on Provincial Governments. No notice was given to the minister when this law was proposed by the Provincial Executive. Therefore, this method of a law coming into operation is not applicable to this case. Failure to do this does not invalidate a law passed by the Assembly: s 35(1) of the Organic Law.

Secondly, under s 36(1) of the Organic Law, where a law is passed by a provincial assembly and the text of the law is forwarded by registered mail to the Minister for Provincial Affairs, the Minister in the exercise of his discretion may consent for the law to come into operation before the expiration of the thirty days stipulated under this provision. This method is not applicable as the Minister did not purport to exercise his discretion under this provision.

The third method by which a law may come into operation is as set out under s 36(1) of the Organic Law. This provision stipulates that a provincial law may come into operation at “the end of a period of thirty days after the provincial government has forwarded to the Minister, by registered mail, a copy of the text of the law”.

Whilst the second method of operation involves the exercise of discretion by the Minister, this is limited to a period before the expiration of the thirty days. If the thirty days stipulated under s 36(1) of the Organic Law expires, he can have no opportunity to exercise a discretion.

As to the other two methods, the method of operation is calculated from the date of forwarding of the text of the law that is passed or from the date on which the notice of making the law is forwarded in the quickest, practicable manner to the Minister. It bears no relationship to the date of receipt by the Minister. The difference between the two methods is that under s 35(3) and s 36(2) of the Organic Law, the calculation of the thirty days runs from “the date on which notice of the making of the law is forwarded in the quickest, practicable manner to the Minister”. These words would import a wide variety or methods of forwarding the notice which would include personal delivery of the notice of the making of that law. However, under s 36(1) of the Organic Law, there is only one method of forwarding the text of the law and that is by registered mail and this is when the thirty days begins to run.

In this case, the text of the amendment was never forwarded to the Minister by registered mail; it was personally forwarded to the office of the Minister for Provincial Affairs on 2 July 1990. During the argument, I posed the proposition that even though the text of the law was not forwarded by registered post as required by s 36(1) of the Organic Law but as the text of the law was personally forwarded to the office of the Minister on 2 July 1990 that the thirty days stipulated under this provision should commence from 2 July 1990. If this proposition is accepted, then the amendment in this case would have come into operation during the month of August 1990. I gave serious consideration to this proposition. However, the question is, whether the Parliament intended that under s 36(1) of the Organic Law the thirty days can be calculated from the date on which the text of the law is personally forwarded to the Minister. In order to answer this, one has to interpret this provision in the light of the surrounding provisions, especially s 35. As I had noted earlier, s 35 deals with notice of a proposed law. The Parliament considered that forwarding of the proposed law should be effected by registered post or alternatively sent by the quickest, practicable manner. Where such notice is given and for the purposes of calculating the thirty days, the period is calculated from the date on which the notice of the making of the law is forwarded in the quickest, practicable manner to the Minister under s 36(2) of the Organic Law. In contrast to this, where no notice is given under s 35(3) of the Organic Law and where a law is passed, the thirty days is calculated from the date on which the registered mail is sent under s 36(1) of the Organic Law. The legislature could have provided for the forwarding of the text of the law under s 36(1) of the Organic Law by other methods by including the words “or otherwise in the quickest, practicable manner”. However, the legislature did not use these words in connection with s 36(1) of the Organic Law. It is therefore clear from this that the Parliament intended that the thirty days can only be calculated from the date on which the registered mail is posted. To conclude that the thirty days can be calculated from 2 July 1990, the day on which the text of the law was personally delivered at the office of the Minister, is to read into s 36(1) of the Organic Law, the words “or otherwise in the quickest, practicable manner”. To do that is to legislate. That is a power which can only be exercised by the Parliament. It is up to the Parliament to amend this provision.

It is clear from the facts before me that the text of the law, the subject of these proceedings, has not been forwarded to the Minister by registered post and therefore the thirty day period had not yet run. I have to apply the law as I find it. The practical conclusion of this view is that the Constitutional Amendment No 2 of 1990 has not yet come into operation in accordance with s 36(1) of the Organic Law.

For these reasons I would not grant any of the orders sought in the summons.

Summons dismissed

Lawyer for the plaintiff: T M Rei.

Lawyer for the defendants: Principal Legal Adviser.