Momis v National Executive Council [1999] PGSC 59; SC2338 (26 November 1999)

SC2338

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCOS NO 1 OF 1999

HONOURABLE JOHN MOMIS MP
First Applicant

THE BOUGAINVILLE PROVINCIAL GOVERNMENT (IN SUSPENSION)
Second Applicant

V

THE NATIONAL EXECUTIVE COUNCIL
First Respondent

RIGHT HONOURABLE BILL SKATE MP, PRIME MINISTER
Second Respondent

Waigani: Amet CJ, Kapi DCJ,
Los J, Hinchliffe J, Sakora J
1999: 26^th November

CONSTITUTIONAL LAW – provincial governments – Bougainville Province – provisional suspension by National Executive Council of Bougainville Provincial Government – Constitution, s 187E – Organic Law on Provincial Governments and Local-level Governments – whether a provincial government not yet constituted can be suspended – whether provisional suspension constitutional.

On 31 December 1998 the National Executive Council (NEC) decided to provisionally suspend (subject to confirmation by the Parliament) the Bougainville Provincial Government, relying on s 187E(1) of the Constitution, with effect from 1 January 1999, on the ground that its establishment would “undermine national unity”. The National Parliament subsequently confirmed the suspension. At that time the Bougainville Crisis had not been resolved and by constitutional amendments the application of the Organic Law on Provincial Governments and Local-level Government to Bougainville Province had been deferred twice. The Organic Law, which repealed and replaced the Organic Law on Provincial Governments, commenced operation on 19 July 1995 and applied to all the country except the National Capital District and Bougainville Province. The effect of the decision of the NEC was that during 1999 Bougainville Province continued to be without a provincial government. The four members of the National Parliament from Bougainville were ready for membership of the provincial assembly, but there were no other members in place. Aggrieved by the continuing absence of a provincial government for Bougainville, the member of the National Parliament representing Bougainville Province and the entity known as Bougainville Provincial Government (in suspension) jointly applied to the Supreme Court under s 18(1) of the Constitution for a declaration that the NEC decision of 31 December 1998 to provisionally suspend the Bougainville Provincial Government was unconstitutional.

Held:

(1) On 1 January 1999 there was no provincial government in place for Bougainville Province capable of being suspended. The purported suspension of it was therefore unlawful and a nullity.

(2) The decision of the Parliament to confirm the suspension was also a nullity.

(3) The only constitutional way the application of the Organic Law on Provincial Governments and Local-level Governments to Bougainville Province could further be deferred was, as had been done twice previously, by an amendment to the Organic Law.

(4) It is the duty of the Supreme Court to guard the Constitution against any attempts, such as in this case, to undermine or abuse any of its provisions.

(5) Declared: that the NEC decision of 31 December 1998 to provisionally suspend the Bougainville Provincial Government was ultra vires the Constitution and the Organic Law on Provincial Governments and Local-level Governments and therefore invalid, null and void and of no effect.

Case Cited

The following case is cited in the judgment:

Re Joseph Auna [1980] PNGLR 500

Counsel

A Jerewai, for the Applicants
H Polume-Kiele, for the Respondents

26^th November, 1999

1. AMET CJ: This is an application made pursuant to s 18(1) of the Constitution seeking the following declaration:

That the National Executive Council’s decision on or about the 31^st of December 1998, provisionally suspending the Bougainville Government as from the 1^st of January 1999, is ultra vires the Constitution, Section 187E(1) [and] the Organic law on Provincial Governments and Local–level Governments, Sections 56, 57 and 58 is therefore invalid, null and void and of no effect.

2. Section 187E of the Constitution provides:

(1) Where a Provincial Government or a Local-level Government undermines or attempts to undermine the authority of the National Parliament or the national unity, the National Executive Council may provisionally suspend the Provincial Government or the Local-level Government concerned subject to confirmation by an absolute majority vote of the Parliament.

(2) An Organic Law may make provision for and in respect of the procedures to be followed in the exercise of the powers under Subsection (1).

(3) An Organic Law may make provision for further defining any matter referred to in Subsection (1).

(4) The National Executive Council may suspend a Provincial Government or a Local-level Government that cannot carry out its functions effectively because of a war or a national emergency declared under Part X (emergency powers) affecting the province, local-level government area or the whole of the country.

(5) While a Provincial Government or a Local-level Government is suspended, its powers and functions are vested in and shall be exercised by or on behalf of the National Executive Council, in accordance with an Organic Law.

(6) Where a Provincial Government or a Local-level Government is suspended—

(a) in the case of a suspension under Subsection (4), the Minister responsible for provincial government and local-level government matters, shall, as soon as practicable and in any event not later than the first meeting of the Parliament after the suspension, table in the Parliament a report on the suspension, the reasons for it and the circumstances of it; and

(b) at each meeting of the Parliament during the suspension, the Minister responsible for provincial government and local-level government matters shall report to the Parliament on the measures taken to re-establish the Provincial Government or the Local-level Government, as the case may be.

3. The Organic Law on Provincial Governments and Local-level Governments makes detailed provision for the procedures for suspension of provincial governments and local–level governments in ss 55 to 71. None of these provisions were adhered to because of the particular circumstances of the Bougainville conflict.

4. Some of the primary facts preceding the suspension were the following:

1. The armed conflict in Bougainville began in mid-1987.
   
2. Upon the conflict breaking out in 1987, the then North Solomons Provincial Government was provisionally suspended pursuant to the Constitution, s187(4) and a state of emergency was declared over the whole province.
   
3. The provisional suspension was confirmed by the National Parliament and was in force from time to time until the enactment of the Organic Law on Provincial Governments and Local–level Governments which came into effect as from the 19 July 1995, replacing the Organic Law on Provincial Governments.
   
4. The Bougainville Transitional Government was established by amendment to the North Solomons Provincial Constitution on 8 March 1995.
   
5. The operation of the new Organic Law to the North Solomons Province was delayed to 1 January 1998 by Constitutional Amendment No 18 on 18 June 1997, and further delayed to 1 January 1999 by Constitutional Amendment No 20.
   
6. The Bougainville Provincial Government was provisionally suspended by the National Executive Council on 1 January 1999 on the ground that its establishment would undermine national unity.
   

5. The following issues are raised by these circumstances:

1. Was the Bougainville Provincial Government lawfully constituted and in existence and thus capable of suspension?
   
2. Were the reasons given and relied upon by the National Executive Council for the provisional suspension valid?
   

Submissions

6. The applicants submitted that it is not the intention of s187E(1) of the Constitution that the legitimate and lawful application of provisions of the Constitution and the Organic Law should be disregarded as a result of a perceived threat to national unity, which was the alleged basis of the provisional suspension of the Bougainville Provincial Government. It was submitted that to impose the authority of the Constitution and to apply the Organic Law on Provincial Governments and Local–level Governments to Bougainville, by establishing the Provincial Government, would not undermine or attempt to undermine the authority of the National Parliament or national unity. The application of s187E(1) of the Constitution for this reason was a wrong interpretation and application of the Constitution.

7. The respondents submitted that the circumstances of the conflict leading to the breakdown of any government control in Bougainville represented a national emergency because the provincial government was not able to effectively perform its functions and so the National Executive Council was entitled to suspended it pursuant to s 187E(1).

8. It was also contended that to establish the provincial government in the circumstances of the conflict would undermine the authority of the National Parliament and undermine and threaten national unity, and so it was also justifiable for the National Executive Council to provisionally suspend the Provincial Government.

Decision

9. Pursuant to s 10(3)(a) of the Organic Law “all members of the Parliament representing the electorates in the province” are members of the Provincial Assembly and pursuant to s 17 “the member of the National Parliament representing the provincial electorate shall be the Provincial Governor”.

10. At the time of the purported provisional suspension of the Provincial Government, the members of the National Parliament representing the four electorates in the province including the member representing the provincial electorate were elected and had taken office as members of the National Parliament. The other members of the Provincial Assembly had not yet been elected or appointed pursuant to s 10(3) of the Organic Law, to fully constitute the Provincial Assembly.

11. Can it be said that there was a provincial government in office, capable of suspension? Can the members of the National Parliament who are ex-officio members of the Provincial Assembly be said to have constituted the Provincial Assembly, such as to be capable of suspension?

12. The Organic Law on Provincial Governments and Local–level Governments repealed and replaced the Organic Law on Provincial Governments on 19 July 1995. The new Organic Law came into operation in relation to all provinces other than Bougainville Province and the National Capital District. In relation to Bougainville Province, the operation of the Organic Law was deferred to 1 January 1998 and then deferred to 1 January 1999.

13. The deferral of the application of the new Organic Law to Bougainville Province to 1 January 1999 could only be effected by constitutional amendment to the Organic Law. The Parliament, in its November 1998 session, failed to amend the Organic Law to effect the further deferral of the operation of the new Organic Law to Bougainville Province from 1 January 1999. The National Executive Council then purported to suspend the Provincial Government on 1 January 1999.

14. When the Parliament failed to amend the Organic Law to effect the further deferral of the operation of the Organic Law to Bougainville Province, on 1 January 1999 the Organic Law automatically came into operation in relation to Bougainville Province. This required the establishment of the Provincial Government, by the National Government, in accordance with the provisions of the Organic Law.

15. The first position to state is that constitutionally the Provincial Government was not constituted. There were only the ex-officio members, the members of the National Parliament. None of the other members were yet appointed or elected to have constituted the Provincial Assembly. There was no Provincial Government in existence, in law, capable of being suspended. The purported provisional suspension by the National Executive Council was therefore, in law, a nullity and void and of no effect.

16. Only the Parliament could lawfully defer the operation of the Organic Law to Bougainville Province, by an amendment to the Organic Law. Consequently, the subsequent confirmation of the provisional suspension, was also a nullity. The confirmation could not validate an invalid provisional suspension. Parliament could only defer the operation of the Organic Law to Bougainville Province by an amendment to the Organic Law. Parliament is bound to adhere to constitutional requirements and the laws that it enacts. It is not at liberty nor empowered to function outside of the requirements of Constitutional Law or statute.

Conclusion

17. The purported provisional suspension of the Bougainville Provisional Government by the National Executive Council is null and void.

18. KAPI DCJ: This case is important because the circumstances giving rise to this action are political in nature and the determination of the legal issue is important for the future political development of the government for the people of Bougainville under the Constitution and the Organic Law on Provincial and Local-level Governments.

19. The relevant circumstances giving rise to this action may be briefly summarised as follows. When the current Organic Law came into force, it was expressly stated not to apply to Bougainville Province until 1 January 1998. This was deliberately done because of the political crisis in Bougainville which is continuing today. The application of the Organic Law to Bougainville was further delayed to 1 January 1999 by an amendment to the Organic Law for the same reason.

20. Attempts have been made by all interested parties to find a political solution to the crisis. It is not necessary to set out details of the negotiations and agreements for the purposes of the issue before us.

21. Several relevant events took place before 1 January 1999. The Parliament attempted to amend the Organic Law to further delay the application of the Organic Law to Bougainville as from 1 January 1999. The attempts to amend the law did not succeed on the floor of the Parliament. The result is that the Organic Law came into force in respect of Bougainville Province on 1 January 1999. The effect in law is that the provincial government system prescribed under the Organic Law must be established for the province.

22. Apparently, the National Executive Council considered in its wisdom that the provincial government system under the Organic Law should not be put in place as yet and therefore sought to do this by suspending the Bougainville Provincial Government before it came into office with effect from one minute past midnight on 1 January 1999.

23. The applicants, who were unable to take up their respective offices pursuant to the provisions of the Organic Law, filed this action, seeking several declarations. They have abandoned all of them except one: the validity of the suspension of the provincial government under s 187E of the Constitution.

24. Counsel for the applicants submits that the power of suspension under s 187E was intended for provincial governments which are in office and are functioning. He submits that the power of suspension cannot be applied to the circumstances in the present case, namely, where the provincial government has not yet come into office under the Organic Law. He submits that the exercise of power in the present case is unlawful and therefore invalid and of no effect.

25. Counsel for the respondents on the other hand submits that the National Executive Council is capable of exercising this power even before the provincial government takes office.

26. Section 187E of the Constitution is fully set out in the opinion of the Chief Justice and I do not have to set it out again here.

27. It is clear from the terms of s 187E that there needs to be a provincial government in office before it can be suspended from office. The grounds of suspension are related to a provincial government in office which may be guilty of corruption, gross mismanagement of financial affairs, breakdown in administration of the province, deliberate and persistent frustration of lawful directions of the National Government or deliberate and persistent breach of the applicable laws. It is not possible to suspend a provincial government that has not yet come into office on any of these grounds. How is the Minister able to call on a Governor who has not assumed office to give an explanation about matters for which he has not had any responsibility under s 56 of the Organic Law? This to my mind is the wrong use of the power of suspension. Some support for this view may be gained from the analogy of seeking to dismiss a leader who may resign from office (Re Joseph Auna [1980] PNGLR 500).

28. Counsel for the respondents further submits that as members of the National Parliament are part of the provincial assembly, they may be regarded as constituting the provincial government for the purposes of suspension under s 187E of the Constitution.

29. The Provincial Government is made up of the Provincial Assembly (Part II, Div 1, Subdiv A of the Organic Law) and the Executive Arm of the Provincial Government (Part II, Div 1, Subdiv 3 of the Organic Law). None of the arms of the Bougainville Government assumed office in the present case. In so far as members of the National Parliament are part of the Provincial Government, they are simply a component of the Provincial Assembly (see s 10(3) of the Organic Law). They cannot be regarded as constituting the Provincial Government. This argument has no merit and I dismiss it.

30. With respect, what the National Executive Council has purported to do in the present case was to further delay the establishment of the system of government under the Organic Law for Bougainville. This can only be done by way of an amendment to the Organic Law, as the Parliament has previously done. The NEC has by this action in effect usurped the power of the Parliament to amend the Organic Law in the guise of a suspension under s 187E of the Constitution. This is clearly unconstitutional and of no effect.

31. The invalidity of the suspension cannot be cured by the recent extension of the suspension for a further six months by the Parliament. The suspension is flawed from the beginning.

32. For these reasons I would make the declaration sought by the applicants.

33. I recognise that all interested parties have tried in the past and are continuing to try to find a lasting solution to the conflict. As to what is the best political solution is not a matter within the competence of this Court. However, what is important is that all such attempts to find a solution must be undertaken within the framework of the law. The National Government and the Parliament initially set out to handle the Bougainville issue within the framework of the law. With respect the National Executive Council went outside the framework of the Constitution and the Organic Law when it proceeded to suspend the Bougainville Provincial Government after the Parliament failed to amend the Organic Law on the floor of the Parliament. It is the duty of this Court to zealously guard and uphold the provisions of the Constitution and the Organic Law against any attempts to undermine or abuse any of its provisions.

34. The only constitutional government that may be put in place for Bougainville is provided for under the Organic Law. If the National Parliament considers otherwise, it would be up to the members of the Parliament to suspend or delay the application of the provisions of the Organic Law by a further amendment to the Organic Law to that effect.

35. The present position in law is this: the Organic Law has been in force with respect to Bougainville as from 1 January 1999. It is therefore the duty of the National Government to apply and implement the provisions of the Organic Law. This of course is subject to any amendments the National Parliament may enact to further delay the application of the Organic Law and to make provision for an interim government while the search continues for a lasting solution to the crisis. In the meantime, Bougainville Province must return to constitutional order. The primary responsibility for doing this rests on the shoulders of the National Government. This ruling has serious legal implications for the necessary steps that must be taken. It is not the role of this court to give advice unless it is requested to do so under s 19 of the Constitution.

36. LOS J: I have read the judgments of the Chief Justice and the Deputy Chief Justice and respectfully agree with them and the orders proposed.

37. HINCHLIFFE J: I have read the judgments of the Chief Justice and the Deputy Chief Justice and respectfully agree with them and the orders proposed.

38. SAKORA J: I have read the judgments of the Chief Justice and the Deputy Chief Justice and respectfully agree with them and the orders they proposed.
_________________________________________________________________
Jerewai Lawyers: Lawyers for the Applicants
Solicitor-General: Lawyer for the Respondents