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Pik v Namaliu [1997] PGNC 200; [1997] PNGLR 90 (10 February 1997)

[1997] PNGLR 90

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

WILLIAM PIK
SUING FOR AND ON BEHALF OF THE WESTERN HIGHLANDS PROVINCIAL ASSEMBLY

V

HON. RABBIE NAMALIU, MP & SPEAKER OF THE NATIONAL PARLIAMENT OF PAPUA NEW GUINEA; AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

MOUNT HAGEN: INJIA J
26 August 1996, 10 February 1997

Facts

The plaintiff and the others were former members of the Western Highlands Provincial Government. They ceased to be members of the provincial assembly with the passage of the Organic Law on Provincial Governments and Local-Level Governments in 1995. They were paid statutory compensation for the loss of their positions. The plaintiff on behalf of the other members of the provincial assembly claimed for further compensation.

Held

1. The term of office of the plaintiffs are stipulated under the provincial Constitution. The provincial Constitution is subject to the National Constitution. Their terms of office was therefore terminated with the passage of the Organic Law on Provincial Governments and Local-Level Governments.
   
2. The plaintiffs were paid out compensation pursuant to the Organic Law on Provincial Governments and Local-Level Governments. They are not entitled to anything more than that.
   
3. This Court has no jurisdiction to determine the validity of the Organic Law on Provincial Governments and Local-Level Governments.
   

Counsel

P Kunai, for the plaintiff.
No appearance for the defendants.

10 February 1997

Injia J. The Plaintiffs are all elected members of the former Western Highlands Provincial Government under the old Provincial Government system. They were elected to the office under the old system on 24th January 1995. Under the Constitution of the Western Highlands Provincial Government, they were to hold office for a term of five (5) years, but their terms came to an end after serving just six (6) months of their five (5) years term. Their positions were made redundant when the old Provincial Government system was abolished and replaced by a new system of Provincial Government in July, 1995.

The laws that repealed the old Provincial Government system and replaced it with a Provincial and Local Level Government system is Constitutional Amendment No. 16 (Provincial and Local level Government) 1995, (hereinafter referred to as "the Constitutional Amendment) and the Organic Law on Provincial Governments and Local Level Governments 1995 (hereinafter abbreviated OLPGLLG). It is not necessary to go through the scheme of the legislations, suffice it is to say that only the then Premier of the Province was assured a position as Deputy Governor of the Province whereas every other members’ position was abolished and replaced by Presidents of Local Government Councils.

The new OLPGLLG made provision for payment of compensation for loss of office for the outgoing elected members of the old Provincial government. Section 122 (3) of the OLPGLLG provides that each member "shall be paid as compensation for loss of office:

(a) such amount, and

(b) for such period of the incomplete term of office not exceeding six (6) months as determined by the Salaries and Remuneration Commission."

Consequently, each member of the Western Highlands Provincial government, that is the Plaintiffs including the Premier, were paid amounts ranging from K16,144.00.00 to K86,626.00. These payments included compensation for loss of office for six (6) months commencing from the date of their cessation of office. These payments were made in compliance with s 122 (3). In this action, the Plaintiffs do not dispute these payments. They are claiming compensation for the balance of their remaining full term in office for which they were not paid compensation.

The issue is whether the plaintiffs are entitled, in law, to be paid compensation for loss of office beyond the period fixed by s 122 (3)(b) of the OLPGLLG.

It is conceded for the plaintiffs that s 122 (3)(b) limits the compensatory period to six (6) months only. It is submitted however for the Plaintiffs that the OLPGLLG, in particular s 122 (3(b), is a law that is not "reasonably justifiable in a democratic society" by virtue of s 38 of the Constitution because it is unjust to prematurely terminate the term of an elected member of a Provincial Government, by legislation. Second, it is submitted that it violates the plaintiffs’ constitutional right under s 50 (e) which guarantees the member the right to hold public office for the full duration of the term. It is submitted for the plaintiffs that the actions of the defendants in paying the plaintiffs only for the term fixed by s 122 (3)(b) is "harsh and oppressive" or not warranted by or is disproportionate to the circumstances by virtue of s 41 of the Constitution because the Plaintiffs had only served six (6) months of their five (5) year term. Members of other Provincial governments (in other provinces) had served their full term or were approaching their full term when their positions were made redundant. It is submitted, the Plaintiffs incurred considerable expenses in the elections, which they could have recuperated if they had been in office for the full term, and these have to be repaid by the Defendants.

The validity of the Constitutional Amendment and the OLPGLLG is not an issue in the proceedings. These laws have been unsuccessfully challenged twice in the Supreme Court by various interested Provincial Governments.

Section 122 (3)(b) of the OLPGLLG is in clear and precise terms. Its meaning is not an issue before me. Indeed, I am not asked by the plaintiffs to engage in any statutory interpretation exercise to accommodate their interests.

Further, no constitutional question as to the validity of the OLPGLLG has been raised by the plaintiffs for me to refer the question to the Supreme Court under s 18 of the Constitution. I cannot think of one.

By implication, I am asked to invoke my powers under s 39 to declare the OLPGLLG invalid. I have no such powers. I am asked to find that s 50(e) has been infringed by the passing of the OLPGLLG and therefore, declare it invalid and consequentially award compensation. Again I have no such a power.

I am asked to apply s 41. However, their positions were created by legislation by the Parliament and determinable at will by the Parliament. The Parliament never, by legislation, guaranteed them a full five (5) five term. The right to stand for, elected to and hold public elective office is guaranteed by s 50(d)(e) of the Constitution. Unlike National Parliamentarians who hold office for a fixed term by virtue of the National Constitution, Provincial Government members held office for a term as provided under their Provincial Constitutions. The Provincial Constitutions were always subject to the National Constitution and the OLPG. A change in the Constitution and the OLPG across the board throughout Papua New Guinea was justified in law and did not and could not have resulted in the infringement of any one elected provincial member’s right to hold office for a fixed term.

They had no right to continue in office for the full term of the Provincial Government. They are entitled to receive nothing more than what the Parliament says through legislation. This Court has no powers to override the Parliament’s decision as per legislation by declaring unlawful under s 41 of the Constitution, that which the Parliament has provided for.

For these reasons, I dismiss the plaintiff’s claim. I make no order as to costs.

Lawyer for the plaintiff: Kunai & Co. Lawyers.
Lawyer for the defendants: Solicitor General.