State and Minister for Village Services and Provincial Affairs v Gulf Provincial Government (In Suspension) [1994] PGSC 1; SC456 (4 March 1994)

Unreported Supreme Court Decisions

SC456

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

CA NO. 8 OF 1994
INDEPENDENT STATE OF PAPUA NEW GUINEA
FIRST APPELLANT
MINISTER FOR VILLAGE SERVICES AND PROVINCIAL AFFAIRS
SECOND APPELLANT
V
GULF PROVINCIAL GOVERNMENT (IN SUSPENSION)
RESPONDENT

Waigani

Hinchliffe Brown Doherty JJ
3-4 March 1994

CONSTITUTIONAL LAW - Provincial Government - Provisional suspension - Time for Permanent Parliamentary Committee on Suspension to report to Parliament - Whether National Court, requiring Parliamentary Committee to report "within 14 days" is contrary to the express provisions of the Organic Laws on Provisional Government or the Constitution.

Constitution s 187F(1)

Organic Law on Provincial Government s 91C

PRACTICE AND PROCEDURE - Judgments and Orders - Stay pending appeal from the National Court - Need to show special or exceptional circumstances - Order that Parliamentary Committee "report to Parliament within 14 days" - Use by National Court of writ in the nature of mandamus - Consideration of the availability of the writ in these circumstances.

This application came without leave for a stay of the order of the National Court directing the Permanent Parliamentary Committee on the Suspension of Provincial Governments to report to the current sitting of Parliament within 14 days. The facts appear from the judgment.

Held

(i) The power of the Supreme Court to grant a stay pending the hearing of an appeal from the order of the National Court is an unfettered discretion but should only be exercised where special or exceptional circumstances are shown.

(ii) On the face of the order, no exceptional circumstances are shown and the Court refused the application for stay.

Cases Cited

PNG -v- Kapal (1987) PNGLR 302; considered.

SCR No. 3 of 1986: Ref by Simbu Provincial Executive (1987) PNGLR 151 referred to.

Counsel

Mr P Ame for the State and 2nd Appellant

Mr A Soi for the Respondent

HINCHLIFFE BROWN DOHERTY JJ: Mr Ame appears for the State which seeks a stay pending appeal, of the orders of Justice Salika sitting as the National Court Judge in which he directed the members of the Permanent Parliamentary Committee on the suspension of Provincial Governments to report to the current session of the National Parliament. On the 25 February 1994 the Judge made these orders:

"1. That pursuant to Section 155(4) of the Constitution the Permanent Parliamentary Committee on Provincial Government Suspension. Investigate the suspended Gulf Provincial Government FORTHWITH pursuant to Section 91C of the Organic Law on Provincial Government, chapter 1 of the Revised Laws and present the report to the Speaker of the National Parliament for tabling at this current sitting of Parliament.

2. Failing to comply with the above order the Gulf Provincial Government will be automatically re-established by way of reinstatement.

3. That the members of the suspended Provincial Government be paid their full benefits and entitlements where appropriate back dated to the time of provisional suspension".

Mr Ame relied on the warning sounded in Kapel's case (1987) PNGLR 417 about the caution to be exercised by a Court of first instance when reviewing a discretionary power to suspend. His second point was that the use of a writ in the nature of mandamus was not available to the Judge of first instance. He did not elaborate on this submission, but seemed to include that supposed point with the ostensible failure by the Judge to allow the system provided by the Organic Law for Suspension to proceed to its conclusion, whether Parliamentary confirmation or rejection.

Here we are told the Gulf Provincial Government was provisionally suspended some 13 months ago, on the 27 January 1993. It is clear that the Permanent Parliamentary Committee on Provincial Government has not finished a report to Parliament for it is that Committee which has been made the subject of the Judge's order to fulfil its function.

Mr Ame has not said why the National Court has no power to grant a writ in the nature of mandamus in this instance, when the National Court rules clearly envisage the use of such a writ to do justice in a case. Mr Soi, for the suspended Provincial Government says that an injustice has taken place, for some 13 months have elapsed and nothing required of the Committee, has been done. In the absence of some argument, we see no reason to hold that the use of mandamus, on these facts, is so exceptional a circumstance as to justify a stop order. Mandamus is the very remedy to coerce a recalcitrant Government body for instance into carrying out its function.

The Supreme Court had occasion to consider the power in the National Executive Council, to provisionally suspend, in the State -v- Kapal (1987) PNGLR 417. The Court there found a discretion in the NEC which could only be impugned in particular circumstances. The terms of the judge's order here do not reflect on the NEC decision to provisionally suspend rather it faces the failure of the Parliamentary Committee to report. The House of Parliament is currently sitting and the terms of the order requiring a report within 14 days is not so "exceptional", having regard to the period of time since suspension, as to give rise to a right to stay that part of the order. The House is scheduled to rise on the 11 March so that failure by the Committee to present a report would mean no parliamentary consideration until the next sittings, and continued provisional suspension.

The Organic Law on Provincial Government is silent as to any time limitation by which the Parliamentary Committee should report, leading up to the effective date (as provided for by s.187E(1) of the Constitution) of suspension. Under s. 91E of the Organic Law, where a motion to confirm provisional suspension is not passed within 7 days of Parliament following the tabling of the report of the Parliamentary Committee, the provisional suspension lapses. Clearly the Organic Law addresses delay after submission of the Committee's report by way of a default provision and so the Judge's order, expressed in similar terms, is not of such an exceptional nature as to give rise to a stay.

Mr Ame's criticism of the use of s 155(4) of the Constitution as a power to grant mandamus was asserted but unsupported by any authority. Mr Soi answered the assertion by pointing to the 13 month delay and the inherent power in the National Court to make orders to do justice.

Section 91C of the Organic Law empowers the Committee to carry out an independent investigation into the matters raised giving rise to the provisional suspension and to report back to Parliament. Since the section includes no time limitation, in the absence of any reasons to the contrary, by Mr Ame, the Judge cannot be said to be wrong in relying on this power.

Amet J (as he then was) in the majority decision said, in the Simbu Provincial Executive Reference @ 169 dealing with time limits on suspension under s187F(i):

"The rationale for these provisions is to protect the interest of the province the provincial government is to serve, so that if it was necessary to have suspended a provincial government, then every effort must be made to restore it, and Parliament has stipulated stringent guidelines within which tis is to be done. A fetter is imposed upon the national government's discretion to move the suspension of a provincial government that the Parliament controls the continued suspension and when it should be restored. The Constitution has stipulated the will of the people to be that there should be a time limit to the suspension." (SCR No. 3 of 1986; Reference by Simbu Provincial Executive (1987) PNGLR 151).

With those sentiments we agree. We are not satisfied that there is anything on the face of the Judge's order that gives rise to the existence of a special or exceptional circumstance necessitating a stay pending the hearing of the appeal. No other material has been raised by the State on the question.

The stay is refused.