Kavali v Wama [1993] PGNC 35; N1179 (22 October 1993)

N1179

PAPUA NEW GUINEA
[In the National Court of Justice]

0S 32 OF 1993

IN THE MATTER OF THE WESTERN HIGHLANDS PROVINCIAL LIQUOR (LICENSING) ACT 1986

SIR THOMAS KAVALI
Plaintiff

V

PETER WAMA
First Defendant

WESTERN HIGHLANDS LIQUOR LICENSING BOARD
Second Defendant

Mount Hagen: Woods J.
9 September 22 October 1993

Constitutional Law - Suspension of Provincial Government - Role of Administrator. Liquor Licensing - Board under a Provincial Government in Suspension - the power of direction to the Boards.

P. Kunai for the Plaintiff
P. Dowa for the Defendants

22 October 1993

WOODS, J. This is an application for certain declarations concerning the First Defendant's suspension of the Plaintiff and other sitting members of the Western Highlands Provincial Liquor Licensing Board and the provisional appointment of a new Board. These acts were done by the First Defendant as Administrator by documents dated 29th December 1992. Then later in July 1993 the First Defendant appointed persons to a new Board.

The Plaintiff has submitted that the Administrator in suspending the Liquor Board appointed by the Provincial Government and appointing a new Liquor Board was acting without power. The authority under the Liquor Licensing Act to appoint the Board is given to the Provincial Executive Council acting on the advice of the Provincial Minister for Liquor Licensing. Following the suspension of the Provincial Government it is submitted that the power to appoint under the Act goes to the National Executive Council or Minister for Village Services and Provincial Affairs in accordance with Section 98 of the Organic Law on Provincial Government.

The role and legal identity and powers of the Administrator of suspended Provincial Governments was discussed fully by me in the case Kumar & Os v Wama & Os 1993 Unreported N1162 delivered in July this year. As the State has taken no action to challenge the rulings I made in that case I must assume that my rulings are accepted as correct. So what is the effect of those principles enunciated in that case on the problem before me now with the Liquor Licensing here in the Western Highlands.

So what is Mr Wama's appointment as Administrator, it is no more than as the senior Public Servant acting as the delegate of the National Minister to provide general direction and control of the public service through the Provincial Secretary. However he has no legal status under any legislation as the power to assume the legal identity of the Provincial Government is given to the National Executive Council under Section 98 of the Organic Law on Provincial Government. The Administrator has no power to appoint Boards under any Provincial Legislation, that can only be done by the National Minister or the National Executive Council, thus the power to appoint the members of the Liquor Licensing Board under Section 5 (4) of the Provincial Liquor Licensing Act can only be in the National Minister or the N.E.C.

Whilst the letter from the National Executive Council dated 21st December 1992 directs Mr Wama to take whatever appropriate action is necessary to administer the affairs of the Western Highlands Province there is no power in the Organic Law for the N.E.C. to delegate the powers of appointment in Provincial legislation to the Administrator. The Administrator's role is one of direction and control and advising the National Minister of any powers of appointment required but not to do them himself.

With respect to Liquor Licensing the Administrator would have the power to direct the Provincial Secretary of the Government's views and the Provincial Secretary as the Chairman of the Board would be obliged to make those views known to the Board and act accordingly and of course one would expect that the Police Commander or his appointee would support the Provincial Secretary.

It would appear that the Administrator has been badly served with advice or the lack of it from the Department of Provincial Affairs and the Department of the Attorney- General however under the Organic Law on Provincial Government he had no power to suspend or establish Liquor Licensing Boards under the Western Highlands Provincial Liquor Licensing Act, that power is clearly in the Minister for Village Services and Provincial Affairs. Therefore the purported suspensions dated 29th December 1992 and the purported appointment dated the 29th December 1992 and the appointment dated 10th August 1993 are void and of no effect.

The Plaintiff is also seeking a declaration that all liquor licenses purported to have been issued by the Board appointed by the Administrator are invalid and illegal. Whilst it may be expected that would follow the matter has been complicated by the delay in the Plaintiff seeking these declarations. In the interests of justice and common sense the holders of licenses should not be penalised through what was not their fault. Therefore I cannot declare their licenses to trade to be illegal but rather that in so far as they have a license to operate it should be allowed to complete its term.

Of course the members of the Boards that were in existence before the suspension must realise that their very existence depends on the National Minister, and it is open to the Administrator through the Provincial Secretary to convey the National Government's concern and suggestions for the good Government of the Province to the Boards. This is where the National Minister takes over the role and function of the Provincial Minister in Section 8 of the Licensing Act of giving the boards general direction concerning the government's policy with regard to Liquor Licensing and the Board being bound to give effect to such policy.

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Lawyer for the Plaintiff: P. Kunai
Lawyer for the Defendants: P. Dowa