N1426

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS 512/95

EVARA HOREPA & 13 OS

-v-

RAPHAEL BANAKATO

and

GULF INTERIM PROVINCIAL GOVERNMENT

WAIGANI: SALIKA, J
07 June, 1996

Judgment

Constitutional Law - S.187 I (4) of Constitution which has now repealed - Gulf Provincial Local Government (Amendment) Act 1995 - Whether Gulf Provincial Local Government (Amendment) Act 1995 was enacted in contravention of the then s.187I(4) of the Constitution.

Constitutional Law - Application of Sch.1:17(1) of the Constitution s.187I(4) was complied with by the National Executive Council.

K. Naru for the Plaintiffs
S. Soi for the Defendants

07 June, 1996:	The Plaintiffs by Originating Summons claim:

1.	A declaration that the Gulf Provincial Local Government (Amendment) Act 1995 is in contravention of Section 187 I (4) of the Constitution and is therefore invalid.

2.	A declaration that the First Defendants proclamation made in the Special Gulf Provincial Gazette (No. 8 of 1995) on 26 June 1995 in proclaiming 22 constituencies in Gulf Province as Local Government Council areas and in effect abolishing the then existing 13 Local Government Councils and the Kerema Town Authority is in contravention of s.187I(4) of the constitution and is therefore invalid.

3.	A declaration that the First Defendants proclamation made in the Special Gulf provincial Gazette (No 8 of 1995) on 26 June 1995 in proclaiming twenty two (22) new members as Presidents to represent the twenty two (22) new Local Government Councils is in contravention of s.187I(4) of the constitution and therefore invalid.

4.	A declaration that the previous 13 Local Government Councils and the Kerema Town Authority in the Gulf Province are still in existence. They are as follows:-

1.	Moripi Local Government Council
2.	Urama Gopera Local Government Council
3.	Orokolo Local Government Council
4.	Kotidanga Local Government Council
5.	Kaipi Local Government Council
6.	Kovio Local Government Council
7.	Kouri Miri Local Government Council
8.	Kikori Local Government Council
9.	Baimuru Local Government Council
10.	Kerema Bay Local Government Council
11.	Toaripi Local Government Council
12.	Kaintiba Local Government Council
13.	Mailovera Local Government Council
14.	Kerema Town Authority.

5.	A declaration that the previous 13 Local Government Council Presidents and the Chairman of Kerema Town Authority are still Presidents and Chairman respectively. They are as follows:-

Presidents	Local Government Council / Town Authority

1.	Lari Ori Ivarapou - Moripi LGC
2.	Haua Arugu - Urama Gopera LGC
3.	George Hao Kilavi - Orokolo LGC
4.	Augustine Tona - Kotidanga LGC
5.	Eka Tarava - Kaipi LGC
6.	Tony Kaia - Kovio LGC
7.	Evara Horepa - Kouri Miri LGC
8.	Eko Natai - Kikori LGC
9.	Aua Akia - Baimuru LGC
10.	Atune Elave - Kerema Bay LGC
11.	Giamuki Kaugesa - Toarapi LGC
12.	Hedu Kerekere - Kaintiba LGC
13.	Falema Larivita - Mai Lovera LGC
14.	Bill Avosa - Kerema Town Authority

6.	A declaration that the Presidents and Chairman referred to in O.5 (above) are entitled to be appointed as members of the Gulf Interim provincial Government pursuant to s.125(1) (b) and (2) (a) of the organic Law on Provincial Governments and Local Level Governments 1995.

7.	An Order that the Defendants pay the plaintiffs cost of this action.

8.	That the time for entering of these orders be abridged to the time of settlement of these orders by the Registrar to be effected forthwith.

9.	Such further or other orders as the Court sees fit.

FACTS

The following it seems to me are uncontested facts:-

1.	Until 4th August 1995, the plaintiffs were President and Chairman of 13 Local Government Councils and the Kerema Town Authority in the Gulf Province.

2.	On 18 April, 1995 the Gulf Provincial Assembly passed a provincial law called the "Provincial Local Government (Amendment) Act 1995". The Law was passed to amend the Gulf Provincial Local Government Act 1987.

3.	On 24 April 1995, the speaker of the Gulf Provincial Government wrote to the Minister for Provincial Affairs and notified him of the law. That letter was sent to the Minister for Provincial Affairs by registered post on 26 May 1995.

4.	On 29 may 1995, the Gulf Gazette carried the publication for the law passed by the Gulf Provincial Government signed by the Speaker on 30 April, 1995.

5.	On 3 July 1995, a briefing on the Provincial Government Reforms conducted by Provincial Affairs Department was held at the Ministry of Finance Conference Room at Waigani. This meeting was attended by political leaders and officials from Gulf Province. At that meeting it was pointed out amongst other things, that the law may have been defective due to the fact that there were no proclamations made on the establishment of the Local Government Councils under the law and also the fact that there were 14 Local Government Councils in the Gulf Province and it was not possible to create 22 new ones without abolishing the existing 14 Councils.

6.	On 4 July 1995, Mr Colin Travertz, the Secretary to the Department of Provincial and Local Government Affairs wrote to the Deputy Prime Minister and Minister for Finance and Planning, Mr Christ Haiveta and pointed out the defects in the Amendment to the Local Government Council law passed by the Gulf provincial Government and advised that the proclamations accompanying the amendments were not made and because of this defects the composition of the Interim Provincial Government would have to comprise the current Local Government Council Presidents (present Plaintiffs) of Gulf Province.

7.	On 5 July 1995, Mr Riddler Kimave, the then Premier of Gulf Province instructed Mr Turiai Maravila, the then Acting Secretary to the Gulf Provincial Government to prepare and back date the following documents:

(a)	Premier Riddler Kimave’s letter to Acting Secretary for Gulf, Mr T. Maravila (back dated to 20 June 1995).
(b)	Acting Secretary to Gulf, Mr T Maravila’s letter to Provincial Local Government Officer (back dated to 20 June 1995).
(c)	Proclamation by provincial Minister for Local Government Council, Mr Raphael Banakato (back dated to 26 June 1995).

8.	On 6 July 1995, Mr Malaisa was instructed by the then Premier, Mr Riddler Kimave to travel from Port Moresby to Kerema with the documents mentioned in paragraph seven (7) hereof.

9.	When Mr Malaisa arrived in Kerema that day he went to the Secretary, Mr Maravila’s office and got the Registry Clerk to put the date of receipt of the letter from the Premier to the Acting Secretary to be 20 June 1995. he then proceeded to the office of Mr Paul Sireh, the Provincial Local Government Council Officer and put the date of the letter from the Acting Secretary to the Provincial local Government Council Officer to be 25 June 1995. After that he took the proclamation tot he Provincial minister for Local Government, Mr Raphael Banakato and he signed the proclamation. After it was signed he took the proclamation to his office and got his typist Mrs Mary Hasu to type the Special Gulf Gazette No. 8 of 26 June, 1995.

10.	All the documents referred to in paragraph 9 above were received, backdated and signed on 6 July 1995. That same afternoon he travelled back to Port Moresby and the documents were then hand delivered to:

(I)	Prime Minister’s Office;
(ii)	Deputy Prime Minister;
(iii)	Minister for Provincial Affairs;

11.	On 7 July 1995 the then Premier Mr Riddler Kimave wrote to the then Minister for Provincial Affairs and Local Government Mr Castan Maibawa and advised of the proclamation of the new Local Government Council areas and also advised of the appointment of the current sitting members of the Gulf provincial Government to be presidents of the 22 Councils created under the new proclamation.

12.	On 18 July 1995 the then Minister for Provincial and Local Government Affairs Mr Castan Maibawa wrote to the then Premier of the Gulf Provincial Government Mr Riddler Kimave and advised amongst other things that there were a lot of legal and factual discrepancies surrounding the passing of the Gulf Provincial Local Government (Amendment) Act 1995 and advised that as a matter of law the Amendment was not properly passed and brought into force and advised that on that basis he recommended and recognised that the then current existing Local Government Council presidents of the Gulf Province be declared as members of the Interim Provincial Assembly.

13.	On 19 July 1995 the Constitutional Laws on the Provincial Government Reforms came into operation.

14.	On 4 August 1995, the Governor General appointed the previous members of the Gulf Provincial Government as members of the Interim Gulf Provincial Assembly.

15.	On 15 August 1995, the Governor of Gulf Province Sir Tom Koraea wrote to the Minister for Provincial Affairs to (amongst other things) advise of some resolutions to have certain provincial laws to continue in force including the law the subject of this case.

16.	On 12 October 199t, the former Presidents of the various Local Government Councils in the Gulf Province which was abolished by the Amendment to the Gulf Local Government Council Act petitioned the Governor of the Gulf Interim Provincial Government to remove the previous members of the previous Provincial Government as interim members of the Gulf Provincial Government and to appoint the former Local government council Presidents as members of the Interim Gulf Provincial Assembly.

17.	On 1 November 1995, Mr Malaisa wrote a letter to the Honourable Minister for Provincial and Local Government Affairs Mr David Unagi to tell him the facts and circumstances surrounding the abolition of the Gulf Local Government Councils and the proclamations leading to the Gulf Interim Provincial Assembly members appointment as Council Presidents and to assist with any investigation that may be carried out by his Minister.

THE LAW

The plaintiffs claim that the Gulf Provincial Local Government (Amendment) Act 1995 was enacted in contravention of s.187I(4) of the Constitution and was therefore invalid. The Constitutional provision has since been repealed by Constitutional Amendments No 16 of 1995. The old provision of s.187I(4) reads:-

"Notwithstanding anything in any other law, a Local Government Council or a Local Government Special Purposes Authority in a province that has provincial government may be suspended or abolished only with the consent of the National Executive or the Parliament, and of the Provincial Executive or the provincial legislature".

The new Section 187 I of the Constitution as amended reads:-

"(I)	Until an Organic Law makes provision for government at Local level; and such provision is implemented in accordance with the Organic Law the Local Government Act (Chapter 57), as in force from time to time, continues to apply in aspect of such government in the province.
(2)	An Organic Law shall make provisions for the respective powers of the National government and of Provincial Government concerning local level Governments".

The Plaintiffs claim that their claim for relief is based on the operation for the repealed s.187I(4) of the Constitution in view of the fact that their rights, privileges and obligations the subject of this claim, existed and were acquired under the repealed provisions and the defendants action affected those rights, privileges and obligation under the repealed provision and in view of that, their right to seek relief is instituted under the repealed provision, as if the repealed provision had continued in force.

The plaintiffs also argued that their action is permitted by operation of Schedule 1.17 (1) of the constitution which reads:-

Sch. 1.17 REPEAL, etc.

(1)	The repeal of a Constitutional Law or a part of a constitutional Law does not -
(a)	revive anything (including a statute or any part of the underlying law) that was not in force or existing immediately before the repeal took effect; or
(b)	affect the previous operation of the repealed provisions or anything duly done or suffered under them; or
(c)	affect any right, privilege, obligation or liability acquired, accrued or incurred under the repealed provisions; or
(d)	affect any penalty, forfeiture or punishment incurred in respect of an offence committed against the repealed provisions; or
(e)	affect any investigation, legal proceeding or remedy in respect of any such right, privilege, obligation, liability, penalty, forfeiture or punishment, and any such investigation, legal proceeding or remedy may be instituted, continued or enforced, and the penalty, forfeiture or punishment may be imposed, as if the repealed provisions had continued in force.

No case authority was cited as this may be the first case to deal directly with this provision. Having heard counsel for the plaintiff address the court on the aspect of the matter I am satisfied that Schedule 1.17 (1) is applicable in this case. This is because as the facts suggest the plaintiffs were presidents and chairmen of the 13 Local Government Councils and the Kerema Town Authority in the Gulf Province. Their positions together with their rights, privileges, obligations or liabilities were governed by the repealed provision. The Gulf Provincial Local Government (Amendment) Act 1995 was enacted during the life of the repealed provision of the constitution. When the Gulf Provincial Local Government (Amendment) Act 1995 was passed it effectively removed the plaintiffs as presidents and chairman together with the rights the plaintiffs had acquired under the repealed s.187 I. Their action to seek any relief or remedy may be instituted, continued or enforced as if the repealed provision had continued in force. I find that the plaintiff are entitled to bring this action.

APPLICATION OF LAW TO FACTS

The plaintiffs claim that the passing of the Gulf Provincial Local Government (Amendment) Act 1995 was in contravention of the repealed s.187 I (4) of the Constitution and therefore invalid. They claim that under provision if a Local Government council in a province that has a provincial government is to be suspended or abolished it can only be suspended or abolished with the consent of the NEC or the Parliament and the Provincial Executive Government or Provincial legislature. The defendants argue that the repealed s.187I(4) should be read to mean that where a provincial government intends to suspend or abolish a Local Government Council it may seek consent of the parliament or National Executive Council and provincial Executive Council or Provincial Assembly.

I am of the view that the correct meaning given to the repealed provision of s.187I(4) of the Constitution is as put by the plaintiffs.

I am in agreement with the contention then that if the Gulf Provincial Government had decided to abolish the Local Governments in the province it had to get the consent of the National Executive Council or the National Parliament and the Provincial Executive Council or the Provincial Assembly. It is agreed by the parties here that the consent of the Provincial Executive Council and the provincial Assembly were obtained. However the plaintiffs dispute that consent was obtained from the National Executive Council or the National Parliament. The defendants assert consent was obtained from the National Executive Council. It seems to me that the law does not provide the manner and form the consent is to be obtained. The defendants argue that given the facts that the Governor General had sworn the previous members of the Provincial Assembly into office as members of the Interim Gulf Provincial Assembly, it can be inferred that the National Executive Council had given its consent. That inference is made because the Governor General is deemed to have acted in accordance with the advice of the National Executive Council.

The plaintiffs on the other had argue that the letter written by Mr Riddler Kimave the then Premier to the then Minister for Provincial Affairs and Local Government Mr Castan Maibawa on the 7 July 1995 was an attempt by Mr Kimave to get the consent of the National Executive Council to abolish the 13 Local Government Council and their presidents and the Kerema Town Authority.. The plaintiff argue that when the Minister wrote back to Mr Kimave and advised him that there were some legal and factual discrepancies surrounding the passing of the law, the Minister was in effect declining consent to the passing of the law to abolish the councils and the town authority.

The issue then is whether the National Executive Council consented to abolish the Local Government Councils in the Gulf Province as envisaged by the then s.187I(4) of the Constitution.

The evidence before me is that the then Minister for Provincial Affairs had advised that there were factual and procedural discrepancies leading to the passage of the Gulf Provincial Local Government (Amendment) Act. Can that communication be taken to mean that the National Executive Council had not consented to the passage of the Law? In the circumstances I cannot accept the Minister’s letter as that of the National Executive Council. The law then was that consent had to be obtained from the National Executive Council or the Parliament. How that consent was to be obtained was in my view a matter relating to the internal procedures of the Gulf Government and the National Executive Council which I have no power to question,

Should I then accept the proposition that as the Governor General had sworn the members as members of the Interim Gulf Provincial Government consent had been obtained from the National Execute Council? S.86(2) of the Constitution provides that the Head of State shall act only with and in accordance with the advise of the National Executive Council. s.86(4) provides that what (if any) advice was given to the Head of State by whom, is non-justiciable. It seems to me that I must accept the proposition that consent of the National Executive Council had been obtained by virtue of the actions of the Governor General to comply with the then S.187I(4) of the Constitution.

In the circumstances I dismiss the Originating Summons with costs.

Lawyer for the Plaintiff: Carter Newell
Lawyer for the Defendant: Soi & Associates