The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

• Jurisdiction: Papua New Guinea
• Judge: Kapi DCJ:
• Judgment Date: 21 December 1987
• Court: Supreme Court
• Judgement Number: SC344

Full Title: The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417

Supreme Court: Kidu CJ, Kapi DCJ, Woods J

Judgment Delivered: 21 December 1987

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

INDEPENDENT STATE OF PAPUA NEW GUINEA

V

PHILIP KAPAL

Waigani

Kidu CJ Kapi DCJ Woods J

26 October 1987

4 November 1987

21 December 1987

CONSTITUTIONAL LAW — Provincial governments — Suspension of — Decision to "provisionally suspend" — Decision a discretionary matter for NEC — When decision open to judicial review — No legal requirement to determine that matter can only be put right by suspension — Judicial review not to be used where procedures not exhausted — Whether provisions of Organic Law procedural or substantive — Constitution, s 187E (1), (2) — Organic Law on Provincial Government, s 91A (a).

ADMINISTRATIVE LAW — Judicial review — Decision of NEC to provisionally suspend provincial government — Suspension not confirmed — Procedure not exhausted — Judicial review not to be used — Constitution, s 187E (1), (2).

Under s 187E (1) of the Constitution, the National Executive Council may provisionally suspend a provincial government, subject to confirmation by a simple majority vote of parliament, for a number of specified reasons including "gross mismanagement of the financial affairs of the province".

Section 187E (2) provides that "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) ",

Section 91A (d) of the Organic Law on Provincial Government provides that where, after considering the reports, comments and explanations which may be required under s 90 and s 91:

"the National Executive Council is of the opinion that:

(c) a ground for suspension exists; and

(d) the matter can only be put right by suspension,

the National Executive Council may by notice in the National Gazette provisionally suspend a provincial government."

Held

(1) Where a ground for provisional suspension of a provincial government as specified in s 187E (1) of the Constitution exists, a decision to provisionally suspend the provincial government is entirely within the discretion of the National Executive Council and is only open to judicial review where it can be shown that the National Executive Council exceeded or abused its powers or made a decision which no reasonable authority could have made.

R v Inland Revenue Commissioners; Ex parte Preston [1985] 2 All ER 327 and R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] 1 All ER 257, followed.

(2) Proceedings for judicial review of a decision of the National Executive Council to provisionally suspend a provincial government should not be entertained where the procedures provided for in the Organic Law on Provincial Government have not been completed or exhausted.

(3) Whether or not s 91A (1) of the Organic Law on Provincial Government is valid or within power, the National Executive Council is not required as a matter of law to be satisfied that suspension is the only way to put the matter right before exercising its discretion to suspend.

(Per Kapi Dep CJ) To the extent that s 91A (d) of the Organic Law on Provincial Government fetters the discretion contained in s 187E (1) of the Constitution it is inconsistent therewith.

(Per Kapi Dep CJ) To the extent that s 91A (d) of the Organic Law on Provincial Government relates to the exercise of the head of power granted in s 187E (1) of the Constitution it is not a matter of "procedure" authorised by s 187E (2) of the Constitution.

Cases Cited

CREEDNZ Inc v Governor-General [1981] 1 NZLR 172.

R v Chief Constable of Merseyside Police; Ex parte Calveley [1986] QB 424; 2 WLR 144; 1 All ER 257.

R v Epping & Harlow General Commissioners; Ex parte Goldstraw [1983] 3 All ER 257.

R v Inland Revenue Commissioners; Ex parte Preston [1985] AC 835; 2 WLR 836; 2 All ER 327.

SCR No 3 of 1986; Ref by Simbu Provincial Executive [1987] PNGLR 151.

Tindiwi v Nilkare [1984] PNGLR 19.

Appeal

This was an appeal from a decision of Hinchliffe J in which he made a declaration that the suspension of the Western Highlands Provincial Government by the National Executive Council on 19 March 1987 was void and of no effect. In proceedings reported as Independent State of Papua New Guinea v Kapal [1987] PNGLR 302 his Honour refused a stay of execution of the order made.

Counsel

J Baker, for the appellant.

P Kopunye, for the respondent.

Cur adv vult

21 December 1987

KIDU CJ WOODS J: On 19 March 1987 the National Executive Council (the NEC) provisionally suspended the Western Highlands Provincial Government under s 187E of the Constitution, which provides as follows:

" (1) Where:

(a) there is widespread corruption in the administration of the Province; or

(b) there has been gross mismanagement of the financial affairs of the province; or

(c) there has been a breakdown in the administration of the province; or

(d) there has been deliberate and persistent frustration of, or failure to comply with, lawful directions of the National Government; or

(e) the provincial government has deliberately and persistently disobeyed applicable laws, including the National Constitution, an Organic Law, the Provincial Constitution or any national legislation applicable to the province,

the National Executive Council may provisionally suspend the Provincial Government concerned, subject to confirmation by a simple majority vote of the Parliament.

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

It was the ground of suspension in s 187E (1) (b) — gross mismanagement of the financial affairs of the province — that was used by the NEC and in the opinion of the learned trial judge (the judge hereon) the NEC, after considering the Auditor-General's report of 23 February 1987 "... was quite entitled to be of the opinion that ... there had been gross mismanagement of the financial affairs of the Western Highlands Province".

Although a ground for suspension was shown the learned trial judge ruled that the NEC was wrong in law when it said that "the matter can only be put right by suspension". The reasons for his ruling are contained in the following passage from his judgment:

"As I have stated the Council, on the facts before it, was quite entitled to be of the opinion that a ground for suspension existed. The next question is, "could the matter only be put right by suspension?" There is no doubt that a large amount of thought and consideration should be undertaken before a provincial government is suspended:

In SCR No 3 of 1986; Ref by Simbu Provincial Executive [1987] PNGLR 151, Barnett J said at 175-176:

'The National Government's "reserve" power to suspend are set out in s 187E and they can only be exercised in carefully defined circumstances, including various types of what could be called "bad government" set out in s 187E (1) '...

Amet J, in the same case, said (at 165) referring to the Constitutional Planning Committee:

'that provincial governments should be suspended only in the most serious of circumstances, and even then as a last resort.'

And at 168 Amet J said:

'The spirit of these provisions is that once it was found necessary to suspend a provincial government, a power which is to be exercised as a very last resort measure ...'

The Constitutional Planning Committee report at Ch 10, p 23, pars 198 to 204 refers to the suspension of the Provincial Government. The said paragraphs are reproduced at pp 404 and 405 of 'The Annotated Constitution of Papua New Guinea'. Paragraphs 199, 203 and 204 provide:

'199. The Committee believes that provincial governments should be suspended only in the most serious of circumstances and even then as a last resort. The suspension of a provincial government would represent at least a temporary breakdown in the system of government recommended in this Chapter. Care should be taken to see that it also provides an opportunity for a fresh start to be made in any province in which the provincial government has been suspended.

203. The Committee believes that provincial governments' should be suspended in only the most serious of circumstances. But, the national government should exercise its power before the orderly development and constitutional government of the country as a whole are imperilled.

204. The national government should do all that it can to prevent circumstances requiring the suspension of a government from arising. Every effort should be made to restore a province in which the government has been suspended to normal as soon as possible.'

I am satisfied that the National Executive Council was wrong in law when it said that 'the matter can only be put right by suspension'. In view of what the Auditor-General said in the final paragraph of his report of 23 February 1987, and also the matters that should be considered as seen in SCR No 3...