John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v Attorney–General, National Executive Council and The State (2000) N1951

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ
• Judgment Date: 10 March 2000
• Court: National Court
• Citation: [2000] PNGLR 109
• Year: 2000
• Judgement Number: N1951

Full Title: John Momis, Michael Ogio, Sam Akoitai and Michael Laimo v Attorney–General, National Executive Council and The State (2000) N1951

National Court: Kapi DCJ

Judgment Delivered: 10 March 2000

N1951

PAPUA NEW GUINEA

[In the National Court of Justice]

OS NO. 89 of 2000

BETWEEN:

JOHN MOMIS, MICHAEL OGIO, SAM AKOITAI

AND MICHAEL LAIMO

Applicants

AND:

ATTORNEY-GENERAL

First Respondent

AND:

NATIONAL EXECUTIVE COUNCIL

Second Respondent

AND:

THE STATE

Third Respondent

Waigani : Kapi DCJ

6th, 10th March 2000

Practice and Procedure - Abuse of process of Court - The orders sought in originating summons may not be brought by notice of motion.

Constitutional Law - Scope and meaning of s 22 of the Constitution discussed.

Constitutional Law - Organic Law on Provincial Governments and Local Level Governments - application of Part VI Division 3 Subdiv C to Bougainville discussed.

J. Nonggor for the applicants

H. P. Kiele for the respondents

The applicants have filed an originating summons for the following orders:

“1. an Order in the form of a directive that the requirement

under Section 10(3)(b) of the Organic Law on Provincial

and Local-level Governments for heads of Rural Local

Level Governments in the Province to be members of the

provincial assembly be waived or dispensed with in the

case of the Provincial Assembly for the Bougainville

Province;

2. an Order in the form of a directive that the requirement under Section 10(3)(c) of the Organic Law on Provincial and Local-Level Governments for a representative to represent the heads of urban authorities and urban councils in the province be waived or dispensed with in the case of the Provincial Assembly for the Bougainville Province;

3. an Order that the Provincial Assembly of the Bougainville Province may nominate up to ten (10) members to take the place of members of the Assembly required by Section 10(3)(b) and (c) of the Organic Law on Provincial and Local-Level Governments, three (3) members be appointed from rural areas from each open constituency and one (1) member from an urban center in any part of the Province;

4. an Order in the form of a directive that the quorum for the first sitting of the Provincial Assembly for Bougainville Province be half of the membership prescribed under Section 10(3)(a), (d) and (f) of the Organic Law on Provincial and Local-Level Governments;

5. an Order that the directives made under paragraphs (1), (2), (3) and

(4) lapse either on the enactment of appropriate legislation including amendments by Parliament to make further provisions on provincial and local-level governments for the Bougainville Province, or after the conduct and declaration of elections of all heads of rural Local-level Governments in the Bougainville Province as required under the Organic Law on Provincial and Local-level Governments or on the return of Writs after the 2002 general elections, whichever occurs first;

6. an Order that the provisions on the Organic Law on Provincial and Local-level Governments and other laws relating to provincial government be read to conform to the directives above.”

The orders are sought pursuant to s 22 of the Constitution:

“22. Enforcement of the Constitution

The provisions of this Constitution that recognize rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally accepted doctrine.”

At the same time, they filed a notice of motion seeking the same orders apart from paragraph 1 which seeks approval of the procedure adopted to bring this action by way of originating summons.

The notice of motion has come before me for determination.

In respect of the approval for the appropriate procedure, there are no Constitutional Regulations made under s 258 of the Constitution to regulate the manner in which an application under s 22 of the Constitution may be initiated in the National Court. I direct pursuant to s 185 of the Constitution that the originating summons adopted in this action under the National Court Rules (Rules) is appropriate for initiating the application.

So far as the balance of the motion is concerned, it seeks orders in exactly the same terms as the originating summons. Once a party chooses the procedure by way of originating summons, the matter should proceed to hearing in accordance with the Rules. I suspect that these orders are sought in the notice of motion to determine the issues raised in the originating summons in a speedy manner. In my opinion, this is an abuse of the process of the court and I would dismiss the balance of the motion on this basis.

However, there are special circumstances surrounding the situation in Bougainville, I am prepared to deal with the merits of the substantive issues in the originating summons. The facts are not in dispute and the issues raised are mainly questions of law.

The relevant facts giving rise to the substantive issues are these. The Supreme Court handed down its decision in the matter of The Hon. John Momis & The Bougainville Provincial Government in Suspension v The National Executive Council & The Prime Minister (Unreported judgment of the Supreme Court dated 26th November 1999, SC626). The effect of this decision was that the Organic Law on the Provincial Governments and Local Level Governments (Organic Law) is applicable to Bougainville as from 1st January 1999 and the system of Provincial Government under the Organic Law must be established for Bougainville.

The Governor, the Hon. John Momis in his affidavit deposes that since the decision of the Supreme Court, he has endeavored to establish the Provincial Government under the Organic Law. He points out that there are difficulties with setting up the government immediately. He states that there are no local level governments in place and therefore there are no heads of local level governments to constitute the Provincial Government pursuant to s 10 (3) (b) of the Organic Law. He further states that there is no speedy way of establishing the local level governments.

The Right Hon. Michael Somare, the Minister for Bougainville Affairs in his affidavit deposes the same difficulty:

“…it is not possible...