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Tindiwi, for himself and on behalf of the Members of the Enga Provincial Government (In Suspension) v Prime Minister [1994] PGNC 10; N1221 (19 May 1994)

Unreported National Court Decisions

N1221

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 67 OF 1994
DANLEY TINDIWI FOR HIMSELF AND ON BEHALF OF THE MEMBERS OF THE ENGA PROVINCIAL GOVERNMENT IN SUSPENSION
V
PRIME MINISTER FOR HIMSELF AND ON BEHALF OF THE NATIONAL EXECUTIVE COUNCIL
AND
THE STATE - SECOND DEFENDANT

Waigani

Salika J
19 May 1994

CONSTITUTIONAL LAW - Organic Law on Provincial Governments - Provincial Government Provisionally Suspended - S. 187E of the Constitution - S. 91B (1) (b) of the Organic Law on Provincial Governments - Permanent Parliamentary Committee on Provincial Governments yet to table its report to Parliament - The Prime Minister and the National Executive Council have no authority or power to compel the Permanent Parliamentary Committee on Provincial Government to table its report to Parliament - Issue of a writ in the nature of a mandamus issued to the Parliamentary Committee.

Counsel

M Cholai for the Plaintiff

W Akuani for the Defendants

JUDGMENT

19 May 1994

SALIKA J: The plaintiff has moved the court for the following orders and declarations by way of a notice of motion:

(i) ҈& A60; An orha orhat the first Defendant shall do all that is necessary and within its powers to allow the Rthe Report of the Permanent Parliamentary ttee ovincovernment suspension for the Enga ProviProvincialncial Government to be tabled by the speakspeaker of the National Parliament in the next session of Parliament and that a vote be taken on the report of the said Committee.

(ii) &#16declaration that the Prhe Provincial Government was provisionally suspended by the second defendant through the first defendant e 12tch, 1hich nsion had lapsed on the 4th of May 1993 following the Ministenister forr for Prov Provinciaincial Affairs default in complying with the provisions of the Organic Law on Provincial Governments.

(iii) rder that folloting the lape lapsing of the provisional suspension on 4 May 1993, the defendants are to arrange for immediate reinstatement of the Enga Provincivernm/p> <)ټ A declarationation that that the the subsesubsequent vote in Parliament on 24 November 1993 to extend the provisional suspension of the Provincial Government for a further six (6) months from 12 December 1993 is null and void.

In seeking those orders and declarations the plaintiff alleges that the National Executive Council provisionally suspended the Enga Provincial Government without complying with the provision of the Organic Law on Provincial Government and the PNG Constitution.

The Plaintiff in the alternative alleges that the National Executive Council provisionally suspended the Enga Provincial Government without proper justification and without sufficient grounds as required under the PNG Constitution and the Organic Law on Provincial Governments.

The plaintiff further claims that the second defendant through the first defendant has not made any arrangements to establish the Enga Provincial Government and that in so doing is acting contrary to the provision of the Organic Law on Provincial Government and the PNG Constitution.

The starting point for any provincial government to be suspended is s.187E of the PNG Constitution. This section provides that the National Executive Council may provisionally suspend a Provincial Government where:

(a) There is widespread corruption in the administration of the provinp>

(b) #1660;&#Th0; ware was been been gross mismanagement of financial affairs of the province.

(c)ـ҈& There has been a breakdown in administration of the province.

(d) &#Th0; Ther There has has been deliberate and persistent frustration of or failure to comply with lawful directions of the National Government.

(e) ـ&#1ovl govl govnt hant has delibdeliberateerately anly and persistently disobeyed applicable laws including the Constitution, the Organic Law, Provincial Consion o National Law.

S. 89 of the Organic Law suaw supplempplements and reinforces s. 187E of the Constitution. S. 90 of the Oc Law then ghen gives power to the Minister for Provincial Affairs to require the leader of the Provincial Executive to appear b him and give explanation of any matters which have come to the attention of the Minister.&ter. Before the Minister requires the head of the provincial executive to appear before him he (the Minister) must have formed the opinion that grounds for suspensiist. After this the Minister then reports to the National Executive Council on any many matters which appear to constitute a ground or grounds for suspension of that Provincial Government. Pnt to s. 91 of the Organirganic Law the National Executive Council then considers the report and comments and it may then cause the minister to make further inquiries and require the head of tovincial Executive to attenattend before it and make explanations. After going through the s. 90 and s. 91 procedures if the National Executive Council considers that grounds for suspension exist and that the matter can only be put right by suspension theonal Executive Council then by notice in the National GazetGazette provisionally suspends the Provincial Government.

All these procedures of s. 89 and s. 90 of the Organic Law had been carried out and the Enga Provincial Government was provisionally suspended by the National Executive Council on the 12 March 1993.

On the 5 May 1993 a motion was proposed by the Acting Minister for Provincial Affairs Mr Martin Thompson for Parliament to confirm the suspension of the Enga Provincial Government. this motion the plaintiffntiff claims is not in compliance with s. 91B (1) (b). I will deal wiat a little ttle later.&#16e motion was not debated or passed but stood referred to the Permanent Parliamentary Commitommittee on Provincial Government Suspensi#160; This means the Permanent Parliamentary Committee on P on Provincial Governments Suspensions has to carry out investigation pursuant to s. 91C of the Organic Law.

The Committee in compliance with the Organic Law investigated the grounds for the suspension of the Enga Provincial government. It prepared a rewhich was was to be tabled in Parliament in its November 1993 sittings. For some reason the rewas was not tabled in November 1993. However Parliament insteap suspended the Enga Pcial Government for a furthfurther 6 months from 12 December 1993. The plff argues this furthfurther suspension is not proper in thaliament has no power to further suspend it.

I deal feal firstly with the argument by the plaintiff that the motion by Mr martimpson the Acting Minister fter for Provincial Affairs on 5 May did not comply with the provisions of s. 91B (1) (b) and that as such the provisional suspension must lapse because the motion by the Minister on 5 may did not comply with the provisions of s. 91B (1) (b). The Organic Law isnt on thon the effect of non compliance with s. 91B (1) (b). I ided though by Schedule dule 1:16 which says that where in a Constitutional law a time limit is imposed for the doing of an Act (whether it is positive or negatand in a particular case it is not practicable to comply wily with that limitation, the period be deemed to b to be extended by whatever period is necessary to make compliance practicable. efendants in that regard rard rely on an affidavit filed byoy Yaki the Minister for Transport who is also leader of Goof Government Business. Mr Yaki in his afit says tays the other two ng days prior to 5 may 1993 1993 were fully allocated to other Parliament business both the Government and private. He further he lithe busineusiness of Suspended Enga Provincial governmvernment at the earliest practicable date for consideration. Withoutence e contrary I ay I accept Mr Yaki’s assertion.

Schedule 1:16 (1) in my viey view is applicable here because there han non compliance with a mandatory time period by Parliament in carrying out its duty under nder s. 91B (1) (b) of the Organic Law on Provincial Government. How because the Organic Laic Law itself is silent on the effect of such non compliance I invoke the provisions of Schedule 1:16 (1) and (2). I am of the view thats pros proper and reasonable in the circumstances.

I do not accept the submission by the plaintiff that because of non compliance with s. 91B (1) (b) suspension of the Enga Provincial Gment lapses. This is s is becaue Organirganic law is silent on the effect of non compliance with the provisions of s. 91B (1) (b).

The plaintiff's second submission is that the further suspension of the Enga Provincial Government by the National Parliament in November 1993 is not proper in that it (the National Parliament) does not have the power to further provisionally suspend provincial governments.

The plaintiff argues that if the Provincial Government is to be further provisionally suspended it should be the National Executive Council. The Organic Ld the Constitnstitution however do not confer any power to the National Executive Council to extend provisionally suspensions. a provincial government isnt is provisionally suspended s. rocess takes place. I60; In my view that proceprocess takes place the matter is taken out from the jurisdiction of the Nationalutive Council to the Nationational Parliament. Once it goes into Parnt itnt it becomes a business of Parliament, the National Executive Council cannot take it back.

In this case the matter has gone to the National Parliament. The Acting Minister fovincial Affairs has moved oved a motion to confirm the suspension. otion stands referred to t to the Parliaments own committeeh is the Permanent Parliamentary Committee on Provincial Government Suspensions. The The Committee ty boun bound to investigato and report on the matter tter giving rise to the provisional suspension of the provincial government.

Unfortunately, and I tthis is where an amendment is necessary, the Organic Law doaw does not give the committee any time limit within which the committee must present its report to the Speaker for tabling to parliament. The Organic Law is silenthon when the Speaker must table the report after he receives it from the committee. For the momhe committee isee is not compelled by law to furnish a repo the Speaker for tabling to parliament as soon as possible.ible. Theittee, as is being expe experienced by some suspended provi governments has the tendenendency to prolong the suspensions by its inaction. As a result the peopl left left without their el governments for unnecessaressarily long periods. It is this Committich has has caused anxiety and frustration in the case of nga Provincial government and other governments that have bave been suspended.

In the meantime Parliament cannot do much as it committee is not performinorming its task and so it is forced to extend the suspension. S.187Fhe Court provides foes for re-establishment of the provincial governments within 9 months from the effective date of provisional suspension. The 9 months e ext by peri periods, each not exceeding 6 months by parliparliament. The plaintiff argues that the extensions under s. 187F ( the Constitution only relate to confirmed suspensions and not provisional suspensions.&#16. If I acthat argument it woit would that there is no procedure provided for extending provisiovisional suspensions under the Constitution and the Organic Law. Parnt ho, over the years hars has used s. 187F (3) of the Cons Constitution to extend suspensions and I do not think there is anything wwith using those provisions to extend the suspensions. Where th does not provideovideovide for procedures Parliament is normally at liberty to adopt any reasonable procedure to suit itself.

The arguments by the plaintiff must fail and the orders anlarations he seeks must thet therefore fail too.

In relation to the plaintiffs first and second allegations in his notice of motion I am satisfied that the Minister for Provincial Affairs had formed an opinion that grounds for suspension existed and acted accordingly and subsequently the National Executive Council was also of the opinion that grounds for suspension existed and that the matter could only be put right by suspension. Therevidence in the annexunnexure which shows that some grounds for suspension existed.

In relation to item 3 of its notice of motion I agree with the defendants submission that the first dent has no power or authorithority over the Permanent Parliamentary Committee on Provincial Government Suspensions. The committecatered for unor under s. 118 of the Constitution but established by its own Organic Law under s. 91D. The first defendantot reblstablish the Enga Provincial Government because as it stands now it has no say on reon re-establishment. Only Parliament deciut Part Parliament cannot decide without the Permanent Parliamentary Committee report.port.

I refuse the orders and declans sought.

I award costs to the 1st and 2nd defendants.

In the light of what what has been happening I am considering invoking s. 155 (4) of the Constitution. That provision sayt the Suhe Supreme Court and the National Court (I am sitting as the National Court) have an inherent power to make in such circumstances as seem to them proper, orders in the nature of prerog writs and such other orderorders as are necessary to do justice in the circumstances of a particular case. In that regard I mae follofollowing orders which I think is proper and in the circumstances in the interest of justice.

The Court orders therman of the Permanent Parliament Committee on Provincial Government Suspensions and its mems members to table its report at the next sittings of Parliament. Fa to do so will render ther the Enga Provincial Government reinstated. This may be the only way to get this particular committee to perform its Constitutional duty.

Lawyer for the Plaintiff: Cholai MC

Lawyer fer the Defendants: Solicitor General