Pik for and on behalf of the Western Highlands Provincial Assembly v Namaliu, Speaker of the National Parliament of Papua New Guinea [1997] PGNC 8; N1649 (10 February 1997)

Unreported National Court Decisions

N1649

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

W.S. NO. 865 OF 1995
BETWEEN: WILLIAM PIK (SUING FOR AND ON BEHALF OF THE WESTERN HIGHLANDS PROVINCIAL ASSEMBLY)
PLAINTIFF
AND: HON. RABBIE NAMALIU, MP & SPEAKER OF THE NATIONAL PARLIAMENT OF PAPUA NEW GUINEA
FIRST DEFENDANT
AND: THE INDEPENDENT STATE OF PAPUA NEW GUINEA
SECOND DEFENDANT

Mount Hagen

Injia J
26 August 1996
10 February 1997

CONSTITUTIONAL LAW - Provincial Assembly members - Compensation for loss of office - Loss occasioned by abolition of Provincial Government through Constitutional amendments - Whether members may receive compensation for unserved balance of term in office in excess of compensation for six (6) months period allowed by S. 122 (3) of Organic Law on Provincial governments and Local-Level Governments 1995 - Constitution SS. 38, 41, 50; Organic Law on Provincial Governments and Local-Level governments 1995, S. 122 (3) (b).

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 had been 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The laws that repealed the old Provincial Government system and replaced it with a Provincial and Local Level Government system is Constitutional Amendment No. 16 (Provincial and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) Government) 1995, (hereinafter referred to as “the Constitutional Amendment) and the organic Law on Provincial Governments and Local Level Governments 1995 (hereinafter abbreviated OLPG & LLG). 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 OLPG & LLG made provision for payment of compensation for loss of office for the outgoing elected members of the old Provincial government. OLPG & LLG Section 122 (3) provided that each member “shall be paid as compensation for loss of office:-

(a) ҈& such amch amount, unt, and

(b) ucr seri p of dhe incompleomplete term of office not exceeding six (6) months as determined by the Salaries and Remuneration Commission.”

Consequeneach r of esterhlandvincial government,ment, that that is t is the Plhe Plaintiaintiffs including the Premier, were paid amounts ranging from K16,144.00 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 Section 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 Section 122 (3)(b) of the OLPG & LLG.

It is conceded for the Plaintiffs that Section 122 (3)(b) limits the compensatory period to six (6) months only. But it is submitted for the Plaintiffs, first, that the OLPG & LLG, in particular Section 122 (3(b), is a law that is not “reasonably justifiable in a democratic society” by virtue of Section 38 of the Constitution because it is unjust to prematurely terminate the term of an elected member of a Provincial Government, by legislation. Secondly, it is submitted that it is violates the Plaintiffs’ constitutional right under Section 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 Section 122 (3)(b) is “harsh and oppressive” or not warranted by or is disproportionate to the circumstances by virtue of Section 41 of the Constitution because the Plaintiffs had only served six (6) months of their five (5) year term whereas members of other Provincial governments (in other provinces) had served their full term or 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 OLPG & LLG is not in 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 OLPG & LLG is in clear and precise terms. Its meaning is not in issue before me. Indeed I am not asked by the Plaintiffs to engage in any statutory interpretation exercise to accommodate their interest.

Further, no constitutional question as to the validity of the OLPG & LLG has been raised by the Plaintiffs for me to refer the question to the Supreme Court under Constitution, Section 18. Nor can I think of one.

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

I am asked to apply Section 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 and elected to and hold public elective office is guaranteed by the Constitution Section 50 (d)(e). 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 Constitution. But that Provincial Constitution was always subject to the National Constitution and the OLPG. A change in the Constitution and 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 power to override the Parliament’s decision as per legislation by declaring unlawful under Constitution, Section 41, 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