Berua and Ikupu v Kipo [1994] PNGLR 441 (14 July 1994)

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CONSTITUTIONAL LAW - Provincial government - Justiciability of issues of internal procedures of a provincial parliament for electing Premier - Procedures under Standing Orders subject to express requirement of Provincial Constitution.

The plaintiffs sought a declaration that the election of the defendant as Premier of the Central Provincial Government was null and void. The Central Provincial Government Constitution and its Standing Orders both provided for the provincial Assembly to elect the Premier by secret ballot, whereas the election in question was decided by show of hands. The defendant argued that the issue involved internal proceedings of the Provincial Assembly, which are non-justiciable. In the alternative, as the Constitution permitted the Standing Orders to make provision for the manner of election of the Premier, and as the Standing Orders could be, and were in the instant case, suspended, election by show of hands was valid.

1. Although a parliament governs and determines the validity of its own proceedings, the National Court has jurisdiction to ensure constitutional requirements are met. The plaintiff’s claim that such a requirement was not met in the election of the Premier brings the matter within jurisdiction.

2. Standing orders made under a Provincial constitution are required to be consistent with, and not to derogate from, the constitution. Provisions in the Central Provincial Assembly Standing Orders as to their suspension could not result in altering or suspending procedures laid down in the Provincial Constitution. Consequently, the election of the Premier by show of hands was contrary to the procedure provided by s 35(2) of the Provincial Constitution.

Gulf Provincial Government (in suspension) v Minister for Village Services [1994] PNGLR 435.

SHEEHAN J: The plaintiffs seek a declaration that the election of the defendant, Paul Kipo, as Premier of the Central Provincial Government is null and void since the process of election was not in accordance with s 35 of the Central Provincial Government Constitution.

Challenge to this Court’s jurisdiction to entertain this matter was made on behalf of the defendant. It was contended that the defendant’s election is non-justiciable since it was a proceeding of the Assembly of the Central Provincial Government and, therefore, not a subject of inquiry by any court.

The decision of this Court in Gulf Provincial Government (in suspension) v Minister for Village Services [1994] PNGLR 435 was submitted in support of that contention:

“This Court has no jurisdiction to consider the merits or otherwise of the report or the adequacy of debate on it. All that is open to the Court is to see that constitutional procedures are met. It is not open to the Court to question the internal proceedings of Parliament. It cannot investigate the manner in which the Parliament has exercised its function.

... no claim can succeed before a court which seeks to impugn the manner in which the Parliament exercised its function, since this would, or might, lead to the courts being obliged to rule and be in conflict on issues which are the prerogative of Parliament and on which Parliament has already made a determination.”

There can be no dispute that a Parliament alone governs and determines the validity of its own proceedings, but as was stated in the Gulf Provincial Government decision, that doesn’t preclude the courts from ensuring that constitutional procedures are met. A similar ruling was made in Public Services Commission v PNG [1994] PNGLR 603, a judgment of Salika J, and in Haiveta v Wingti (No 1) [1994] PNGLR 160. The claims of the plaintiff that there had been constitutional breaches, therefore, bring this action within the Court’s jurisdiction.

It is the plaintiffs’ contention that because the defendant was elected Premier by a show of hands rather than by the secret ballot required under the Provincial Constitution, that election is invalid. Section 35(2) of the Central Provincial Government Constitution reads as follows:

“The Premier shall be a member of the Assembly and shall be elected by secret ballot by the Assembly at the first meeting of the Assembly after a general election and otherwise from time to time as the occasion for the appointment of a Premier arises.”

Dr Nwokolo submitted that from the uncontested affidavit evidence of the plaintiff and the minutes of the proceedings provided by the principal clerk of the Central Provincial Assembly, the election of the Premier had been by show of hands, not by secret ballot.

The fact that Standing Orders of the Central Provincial Assembly, which also provide for a secret ballot for election of the Premier, may be suspended at the determination of the Assembly did not alter the situation. He said the Standing Orders provide only for the internal procedures of the Assembly and could not override constitutional requirements. To use suspension of the Standing Orders was to attempt to alter the Constitution without following the machinery set down to do so.

Mr Pukali supported the constitutional validity of the election pointing to s 35(4) of the Central Provincial Government Constitution, which states:

(b) the powers, functions, duties, responsibilities and privileges of the Premier.”

He said the Standing Orders plainly do provide for a manner of election similar to the Constitution. Therefore, he submitted, since it is also within the prerogative of the Assembly to suspend the Standing Orders, the election by a show of hands or acclamation must be said to be valid.

The minutes of the Central Provincial Assembly show that the election of the defendant as Premier was carried out by a show of hands after Standing Orders which, like the Constitution, required a secret ballot were suspended. The Court accepts that as the factual circumstance of the election.

That election did not comply with s 35(2) of the Provincial Constitution. At issue is the question, can the provisions of s 35(4) save it? The short answer is that they cannot.

By s 10 of the National Constitution, all written laws shall be read and construed subject to the Constitution itself. That is to say, any legislation is valid only to the extent that it is consistent with the Constitution; and it may be added, not in conflict with any other legislation. Subsidiary legislation such as regulations and standing orders are valid only to the extent that it does not exceed the authority of its enabling statute.

Here, the Central Provincial Government Constitution provides that the Assembly may make provision for the manner of election of the Premier, but that provision extends no authority to the Assembly to override the constitutional directive of s 35(2).

Part 1 of the Central Provincial Assembly Standing Orders makes this clear. It states:

(1) These Standing Orders shall be read subject to the Constitution of the Central Provincial Government and unless the context indicates otherwise words and phrases used in these Standing Orders shall have the same meaning as in the Constitution.”

Neither legislation nor standing orders may be promulgated which are not consistent with or derogate from the provisions of the Constitution. Only by the procedure laid down in the Constitution itself may its provisions be altered.

The provisions of Part 12 of the Standing Orders relating to suspension of standing orders should state, but in any case must be read, as being unable to alter or suspend procedures laid down in the Constitution. In the result, the election on 2 August 1993 of the defendant Paul Kipo as Premier was contrary to the procedure laid down by the Central Provincial Government Constitution.

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Papua New Guinea Law Reports

Berua and Ikupu v Kipo [1994] PNGLR 441 (14 July 1994)

PNG Law Reports 1994