Special Reference by Simbu Provincial Executive [1988] PGLawRp 34; [1988] PNGLR 213 (30 November 1988)

Papua New Guinea Law Reports - 1988-89

[1988] PNGLR 213 - SCR No 3 of 1988; Special Reference by Simbu Provincial Executive 

[1988] PNGLR 213

SC362

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 3 OF 1988 RE SUSPENSION OF PARLIAMENTARY SALARIES SPECIAL REFERENCE PURSUANT TO S19 OF THE CONSTITUTION BY SIMBU PROVINCIAL EXECUTIVE

Waigani

Kidu CJ Kapi DCJ Bredmeyer J

26 October 1988

30 November 1988

PARLIAMENT - Members of Parliament - Pay and allowances - Parliamentary Salaries Tribunal - Power to “fix” salaries - Not including power to terminate salaries - Provincial Assembly suspended - No power to terminate salaries - Constitution, s 131[xix]¹ -Parliamentary Salaries Tribunal Act (Ch No 25), s 12(3).

The Simbu Provincial Assembly was suspended under s 187E of the Constitution. The Parliamentary Salaries Tribunal purporting to act under s 131[xx]² of the Constitution, terminated the salaries of the suspended members.

Section 131 of the Constitution provided[xxi]³ that the Parliamentary Salaries Tribunal was solely responsible for “fixing ... salaries, allowances and benefits” for members of the Parliament and Provincial Assemblies.

Section 12(3) of the Parliamentary Salaries Tribunal Act (Ch No 25) provided[xxii]⁴ that the “Salaries, allowances and other benefits ... for a Member of Parliament or a Provincial Assembly are payable while the member holds office.”

Held

The powers of the Parliamentary Salaries Tribunal to “fix” salaries under s 131 of the Constitution, and under s 12(2) of the Parliamentary Salaries Tribunal Act (Ch No 25) did not include power to terminate salaries of suspended members of the Simbu Provincial Assembly.

Cases Cited

SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

SCR No 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151.

Special Reference

This was a special reference to the Supreme Court by the Simbu Provincial Executive pursuant to s 19 of the Constitution, which empowers the Supreme Court “to give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law ...”. The questions referred appear in the reasons of Kapi Dep CJ at 215.

Counsel

M Edwards, for the applicant (Simbu Provincial Executive).

J Baker, for the Principal Legal Adviser.

Cur adv vult

30 November 1988

KIDU CJ: On 14 December 1984 the Simbu Provincial Government was provisionally suspended by the National Executive Council under s 187E of the Constitution. This was five months after the writs for the 1984 provincial elections in Simbu were returned (on 3 July 1984). Of the 27 members, 16 were new ones.

The suspension was based on the Auditor-General’s report of accounts of the Simbu Provincial Government for the fiscal year ended 31 December 1982.

The Parliamentary Salaries Tribunal (now replaced by the Salaries and Remunerations Commission) purportedly acting under s 131 of the Constitution (now repealed by Constitutional Amendment No 9 which came into operation on 1 September 1988) made on 4 June 1985 determinations which included the following:

N2>“13.    Suspended Provincial Government

(a)      When a Provincial Government is suspended, the payment of Salaries, Allowances, etc for members ... shall be terminated two months after the date of suspension.

(b)      For Provincial Government currently under suspension the payment of salaries, allowances etc for members shall be terminated on 30th June 1985.”

As the Simbu Provincial Government was under suspension at the time of the above determination members’ salaries, allowances and other benefits were terminated on 30 June 1985.

The Simbu Provincial Executive Council contends that the Tribunal had no power under s 131(3) of the Constitution to terminate the salaries of members of any suspended Provincial Government.

Section 131(3) was relevantly as follows:

“The Tribunal is solely responsible for fixing from time to time, at intervals determined by it:

(a)      the salaries, allowances and benefits, financial and otherwise (other than pensions or retirement benefits which shall be fixed by a Parliamentary Committee), for all members of the Parliament; and

(b)      the salaries, allowances and benefits, financial and otherwise (other than pensions or retirement benefits), for all or any members of Provincial Assemblies (including any Speakers appointed from outside the Assemblies).” [My emphasis]

Before addressing the questions ... I mention in passing that the challenged determination made by the tribunal was clearly contrary to s 12(3) of the now repealed Parliamentary Salaries Tribunal Act (Ch No 25):

“The salaries, allowances and other benefits (financial and otherwise) under this section for a member of Parliament or a Provincial Assembly are payable while the member holds office.” [My emphasis]

There is no dispute that a member of a Provincial Assembly still holds office although the Provincial Government is under suspension.

In my opinion s 131(3) was very strictly worded. It provided that the Tribunal was only empowered to fix salaries etc. Whether a member of a suspended Provincial Government should or should not be paid his or her salary is not fixing his or her salary. After the salary etc was fixed or altered the Tribunal had performed its function. It had no power to determine matters which are not “salary, allowances, benefits financial or otherwise”. A decision that a provincial member could not be paid any salary etc was beyond the powers of the Tribunal.

In Constitutional provisions and statutory provisions empowering bodies to determine salaries, etc such provisions are widely worded to included fixing of salaries, allowances, benefits and other terms and conditions of employment. The following are examples:

N2>1.       Public Services (Management) Act (Ch No 67), s 5

“Subject to the Salaries and Conditions Monitoring Committee Act (Chapter 384), the salary and other conditions of employment of the Chairman and Members of the Commission shall be as determined by the Head of State, acting on advise.”

N2>2.       Correctional Services Act 1986, s 11

“Subject to this Act, and the Salaries and Conditions Monitoring Act (Chapter 384) the terms and conditions of employment of the Commission are as determined by the Head of State on advice.”

N2>3.       Organic Law on Certain Constitutional Office Holders (Ch No 1), s 9

“The salary and other conditions of employment of the Clerk of the National Parliament are as determined by the Head of State, acting with, and accordance with, the advice of the National Executive Counsel ....”

The decision not to pay members of Provincial Government their salaries is not a fixing of salary. It is a decision which comes under the heading of “other conditions of employment” and, as already stated, is beyond power.

I would answer Question 1 in the negative.

In view of the above decision there is no need for me to deal with the other two questions.

KAPI DCJ: The Simbu Provincial Executive has referred three questions under s 19 of the Constitution. They are as follows:

N2>1.       Does s 131(3) of the Constitution authorise or enable the Parliamentary Salaries Tribunal to use s 12(3) of the Parliamentary Salaries Tribunal Act (Ch No 25) to suspend the salaries of members of Provincial Government when a Provincial Government is suspended?

N2>2.       If the answer to 1 above is yes, is the determination nevertheless unconstitutional in relation to the Simbu Provincial Government as against par 41(1)(a) of the Constitution?

N2>3.       If the answer to 1 above is yes, is the determination nevertheless unconstitutional in relation to the Simbu Provincial Government as against par 41(1)(b) of the Constitution?

QUESTION 1

The Parliamentary Salaries Tribunal was established by s 131(1) of the Constitution. Its functions were set out under the now repealed s 131(3) of the Constitution and Pt IV of the Parliamentary Salaries Tribunal Act (Ch No 25). I should point out at this juncture that the Tribunal has now been abolished by amendments to the provisions of the Constitution and the Act respectively. It has been submitted by counsel that this Court should consider the issues raised in the reference because they have relevance to the members of the Simbu Provincial Government. The following are the facts which make the determination of this reference relevant to the interests of the Simbu Provincial Government. In July 1984, the writs for the 1984 elections for the Simbu Assembly were returned. On 14 December 1984, the Simbu Provincial Government was suspended by the National Executive Council under s 187E of the Constitution. On 4 June 1985 the Parliamentary Salaries Tribunal signed an amendment to its determination which added cl 13 as follows:

N2>“13.    Suspended Provincial Governments

(a)      When a Provincial Government is suspended, the payment of salaries, allowances etc. for members (as classified under sub-clause (1) of this determination) shall be terminated two months after the date of suspension.

(b)      For Provincial Governments currently under suspension, the payment of salaries, allowances etc. for members shall be terminated on 30 June 1985.”

On 13 June 1985, the salaries of the members of the Simbu Assembly were suspended. It has been submitted by counsel that the determination of the issues in this reference have relevance to the question of whether or not the members’ salaries ought to have been suspended. I agree that the issues to be determined in this reference have relevance to the members of the Assembly. If it were not for this reason, I would have declined to give an opinion.

The constitutional question which arises in this context is, whether the Tribunal had jurisdiction to suspend the salaries of members of the Assembly when a Provincial Government was suspended under s 187E of the Constitution? The issue raised by s 12(3) of the Parliamentary Salaries Tribunal Act is different and it is self-executing in its terms. It does not require any action on the part of the Tribunal under s 131(3) of the Constitution or s 12(2) of the Act. The question which can be raised in relation to s 12(3) of the Act is whether a suspension under s 187E of the Constitution results in a member of the Assembly ceasing to “hold office”. This Court has already determined the question of suspension under s 187E in the case of SCR No 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151. The question that needs to be determined under s 12(3) is the meaning of the words “holds office”. That is a question of statutory interpretation and cannot be referred in the guise of s 19 of the Constitution. I agree with Mr Baker that the inclusion of s 12(3) of the Act in the reference is misconceived. I should also point out that Questions 2 and 3 should not have been referred by way of s 19 of the Constitution. Consideration of s 41 involves questions of fact and this should be determined by way of commencement of a cause of action with appropriate pleadings: see SCR No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

I will now deal with the question: Does the Tribunal have jurisdiction to suspend salaries when a Provincial Government is suspended under s 187E of the Constitution?

There is no dispute that the Tribunal had jurisdiction to fix salaries etc under s 131(1) of the Constitution and under s 12(2) of the Parliamentary Salaries Tribunal Act. In fact the Tribunal had already done so in fixing salaries for members of Provincial Governments. The issue which has been raised by the amendments referred to earlier, is whether the Tribunal had jurisdiction to suspend those salaries (which had been fixed) upon suspension of a provincial government? The power of suspension under s 187E(l) of the Constitution is a disciplinary and a supervisory measure over the operation of the Provincial Government system. The question of whether the salaries should be suspended upon such a suspension, in my view is a head of power which is different from fixing salaries etc under s 131(1) of the Constitution and s 12(2) of the Parliamentary Salaries Tribunal Act. In every disciplinary provision of this nature, a separate provision provides for either the termination or the continuation of salaries upon suspension. This can be illustrated by reference to the investigation of misconduct in office of the Chief Justice, Judges, Public Prosecutor, Public Solicitor and the Chief Magistrate. Under s 182(2) of the Constitution, the power to determine this is expressly given to the Head of State. Unless he so determines, the suspension shall be on full pay.

Similarly, the question of when a member ceases to receive salary upon ceasing to hold office is different from the question of fixing salaries etc. This particular issue in relation to Provincial Governments is addressed by s 12(4) of the Parliamentary Salaries Tribunal Act.

I find that the constitutional provisions and the Act had not addressed the issue of what happens to the salaries of members of Assemblies who are suspended under s 187E of the Constitution. In essence, there is a gap on this question. It is now up to the Parliament to consider this issue and make appropriate amendments to the Constitution and the Act to address the issue. I find that the suspension of salaries as a result of suspension of a Provincial Government does not come within the terms of s 131(1) of the Constitution and s 12(2) of the Parliamentary Salaries Tribunal Act. I therefore find that the tribunal had no jurisdiction to determine the question of suspension of salaries upon a suspension of a Provincial Government under s 187E(l) of the Constitution.

BREDMEYER J: I agree with the judgments of the Chief Justice and Deputy Chief Justice.

Question 1 answered “No”

Questions 2 and 3 not answered

Lawyer for the referor: M Edwards.

Lawyer for the State: Principal Legal Advisor.

[xix] Since repealed.

[xx] Since repealed.

[xxi] Since repealed.

[xxii] Since repealed.