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Polye v Ipatas [2019] PGNC 273; N8035 (4 October 2019)

N8035
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS. JR NO. 168 of 2019

BETWEEN
DON POMB POLYE
Plaintiff

AND
SIR PETER IPATAS – In his capacity as the Governor and Chairman of the Enga Provincial Assembly
First Defendant

AND
ENGA PROVINCIAL ASSEMBLY and its Members
Second Defendant

AND
ENGA PROVINCIAL GOVERNMENT
Third Defendant

AND
HON. PETER O’NEIL – As the Chairman of National Executive Council
Fourth Defendant

AND
NATIONAL EXECUTVE COUNCIL (NEC)
Fifth Defendant

AND
INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant

Waigani: Makail, J

2019: 6^th September & 4^th October

JUDICIAL REVIEW – Review of executive decision – Decision to abolish 22 wards in Local-Level Government constituency – Grounds of – Breach of natural justice – Unreasonableness – Procedure for abolishment considered –Pre-conditions for abolishment of ward – Consent of National Executive Council – Consent of Provincial Assembly – No right to be heard can be inferred – Constitution – Section 59 – Organic Law on Provincial Governments and Local-level Governments – Section 28

Cases cited:

Dr. Allan Marat & The State v. Hanjung Power Ltd (2014) SC1357
Hanjung Power Ltd v. Dr. Allan Marat & The State (2009) N3751

Counsel:

Mr. L. Aigilo, for Plaintiff
Mr. J. Isaac, for Defendants

JUDGMENT

4^th October, 2019

1. MAKAIL J: In this application for judicial review the plaintiff seeks to have the decision of the fifth defendant of 21^st January 2019 quashed and for the Minister for Inter-Government Affairs to be ordered to reinstate 22 abolished wards in the Kandep Rural Local-level Government (“RLLG”) on the Government record and for an election to be conducted within 60 days of the judgement.

Decision on Abolishment of 22 Wards

2. The significance of the fifth defendant’s decision is that 22 wards in the Kandep RLLG were abolished. As a result, it is alleged that eligible voters in the subject wards did not vote in the recently concluded Local-level Government (“LLG”) election.

3. The subject wards are:
1. Wert 2.
2. Mumund 2
3. Puya (Megere)
4. Supi No. 2
5. Gini No. 2
6. Kombolos No. 2
7. Imal No. 2
8. Pindak 2
9. Pura No. 2
10. Kambia No. 2
11. Kolopa No. 2
12. Tarapis
13. Kaip/Akuliya
14. Lawe No.
15. Teseres No. 2
16. Murip No. 2
17. Keso
18. Kokas No. 2
19. Lungutenges 2
20. Sawi No. 2
21. Kola
22. Kolopen

Objection to Standing of Plaintiff

4. The plaintiff was granted leave to seek judicial review of the subject decision on the ground that he had satisfactorily demonstrated, amongst other things, that he had standing to bring the application for judicial review. Even the defendants’ objection to his standing at trial and the strong submission that the Court was misled to find that the plaintiff had standing does not cast any shadow of doubt on his standing as a private citizen from Kandep District whose interest and that of the people of Kandep have been impacted by the subject decision. Put simply, he is not a stranger or a busy-body attempting to undermine or frustrate a decision of a higher authority but a person with a genuine concern in ensuring that due process had been observed to arrive at the subject decision. The objection must, therefore, fail.

Section 28 of the Organic Law on Provincial Governments and Local-level Governments

5. The subject decision was made pursuant to Section 28 of the Organic Law on Provincial Governments and Local-level Governments (“OLP&LLG”). Section 28 states:

“28. Abolition of Local-level Governments.

Subject to the Constitution, a Local-level Government shall not be abolished or in any way amalgamated and its area shall not be altered, without the prior consent of the National Executive Council and of the Provincial Assembly”. (Underlining is mine).

6. It was conceded by counsel for the plaintiff and counsel for the defendants that except for the consent of the National Executive Council and the Provincial Assembly, Section 28 is quite brief and does not set out the procedure for abolishment of a ward in a Local-level Government.

Breach of Natural Justice

7. Notwithstanding this, the plaintiff grounded his application for judicial review on breach of natural justice under Section 59 of the Constitution. He argued that the defendants did not notify or consult the people of Kandep RLLG prior to abolishing the subject wards. He said that the people had a right to be heard because the decision directly and substantially affected their livelihood especially the right of eligible voters to vote in the LLG election.

8. He further argued that the right to be heard as enshrined in the principles of natural justice in Section 59 of the Constitution may be inferred where it is not expressed in a statute as was held in the case of Hanjung Power Ltd v. Dr. Allan Marat & The State (2009) N3751.

9. However, without descending into the evidence, this ground must fail because, as correctly conceded by the parties, Section 28 does not set out a process by which one must observe to arrive at a decision to abolish a ward in order to give an aggrieved party such as the plaintiff, or the people of Kandep RLLG, a right to be heard. A right to be heard or a denial of natural justice is not available where it is not expressed in a statute or where a procedure is not prescribed. This is where the National Court decision in Hanjung Power Ltd (supra) was overruled by the Supreme Court on appeal in Dr. Allan Marat & The State v. Hanjung Power Ltd (2014) SC1357. By a majority decision (2-1), the Court held that the power to make a Regulation under an Act of Parliament does not include a right to be heard to be accorded to a party who may be subject of the Regulation.

10. Furthermore, to accept the submission of the plaintiff would be inviting the Court to introduce a further requirement in Section 28 and would amount to the Court re-writing the law, as it were, a function that is reserved for the Parliament. On the other hand, on a plain construction of Section 28, it is apparent that in a case of abolishment of a ward, there are two pre-conditions to be satisfied before a ward may be abolished. These are:

(a) Consent of the National Executive Council and

(b) Consent of the Provincial Assembly.

11. Although it was not a ground of review, in that, the plaintiff did not allege that the defendants failed to meet these two pre-conditions, the defendants have, nonetheless, produced the decision of the fifth defendant in approving the abolishment of the subject wards and secondly, the decision of the first, second and third defendants in approving same. Copies of the subject decisions may be found at annexures “AM”, “AM1” and “AM2” of the affidavit of Alfred Manase filed 2^nd September 2019 (exhibit “4”). The plaintiff also acknowledged the existence of these decisions by producing them in his own affidavit filed 26^th March 2019 (exhibit “1”).

12. These decisions satisfactorily demonstrate that the pre-conditions for the abolishment of the subject wards were met by the defendants prior to their abolishment and the ground on breach of natural justice has not been made out and will be dismissed.

Unreasonableness

13. The second ground of judicial review is that, the subject decision was unreasonable in the circumstances because:

(a) it was made while the election petition for the Kandep Open electorate was before the Court and after a series of violence during the election in the electorate where it was reported that two policemen, 30 civilians were killed and properties worth millions of kina were destroyed, and

(b) the recently concluded LLG election had excluded the subject wards and will be a “recipe for disaster for the whole of Kandep which will definitely spill over to the while Enga.........”. see para. 3ii on the third-last page of the plaintiff’s counsel’s written submission.

14. This ground and submissions made in support of it raise very serious allegations against the defendants’ decision to abolish these wards but must be dismissed because they are unsupported by evidence. There is not one-single shred of evidence from a witness on the ground to verify the assertions made by counsel for the plaintiff in his written submission above. Additionally, the assertions of further threats of violence are speculative and pre-emptive of what might or might not happen and insufficient to establish a case of unreasonableness. This ground is dismissed.

Sub-judice

15. The final ground on sub-judice was abandoned at trial and will not be considered.

Conclusion

16. None of the grounds were upheld. It follows that the application for judicial review must fail.

Order

17. The application for judicial review is dismissed with costs to the defendants, to be taxed, if not agreed.

Judgment and orders accordingly.
__________________________________________________________
Napu & Co Lawyers: Lawyers for Plaintiff
Lawama Lawyers : Lawyers for Defendants