Papua New Guinea Law Reports - 1986
[1986] PNGLR 112
SC316
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
KILA WARI AND SEVEN OTHERS
V
GABRIEL RAMOI
AND SIR KINGSFORD DIBELA
Waigani
Kidu CJ Kapi DCJ Amet J
26 February 1986
20 May 1986
PRACTICE AND PROCEDURE - Parties to proceedings - Injunction to restrain Minister and Head of State from acting under legislation - Act that of Head of State “acting on advice” - Advice that of National Executive Council - State proper party - Head of State immune - Post and Telecommunications Act (Ch No 394), s 11(2) - Constitution, ss 86(2), 94(1)(a), 247(2).
STATE SERVICES - Head of State - Immunity from judicial review of acts - Head of State “acting on advice” - Advice that of National Executive Council - Extent of immunity from judicial review - Constitution, ss 86(2), (4), 94(1)(a), 247(2).
CONSTITUTIONAL LAW - Head of State - Immunity from judicial review of acts - Head of State “acting on advice” - Advice that of National Executive Council - Extent of immunity from judicial review - Constitution, ss 86(2), (4), 94(1)(a), 247(2).
The Post and Telecommunications Act (Ch No 394), s 7, provides for the appointment of members to the Board of the Post and Telecommunications Commission by the Head of State, acting on advice. Section 11(2) of the Act provides that the “Head of State, acting on advice may... terminate his appointment on the grounds of inefficiency, incapacity or misbehaviour”.
The Interpretation Act (Ch No 2) defines the Head of State acting on advice as meaning “the Head of State acting with, and in accordance with the advice of the National Executive Council”.
The Constitution, s 86(2), provides that the “... Head of State shall act only with, and in accordance with the advice of the National Executive Council, or some other body or authority prescribed by a Constitutional Law or an Act of Parliament for a particular purpose...” and s 86(4) provides that “the question, what (if any) advice was given to the Head of State, or by whom, is nonjusticiable”.
Members of the Post and Telecommunications Commission, apprehensive that their appointments to the Commission were about to be terminated under the Post and Telecommunications Act, s 11(2), sought an injunction to restrain notices being served on them to that effect, naming as the defendants to the proceedings the Minister responsible for the Post and Telecommunications Act and the Governor-General as Head of State.
On appeal from a refusal by the National Court to grant an injunction,
Held
(1)      As the Minister for Communications has no power under the Post and Telecommunications Act in relation to the termination of membership of the Commission, and as the advice to the Head of State is from the National Executive Council and not the Minister, the Minister was not a proper party to the proceedings.
(2)      The proper party to the proceedings should have been the Independent State of Papua New Guinea, pursuant to the Constitution, s 247(2).
(3)      Although there are no specific constitutional (or statutory) provisions to the effect that the Head of State may or may not be sued or proceeded against in Court for an official act performed by him or her on advice, the Head of State is nonetheless by virtue of the Constitution, s 86(2), 94(1)(a) and s 247(2), immune from judicial proceedings with respect to the exercise and performance of the powers, duties and responsibilities of his or her office.
(4)      (Obiter) The immunity from judicial proceedings afforded the Head of State under the Constitution, s 86(4), protects only the lawful exercise of the discretion which is contained in the advice. It does not protect the exercise of a discretion which is ultra vires or the exercise of a discretion which may be inconsistent with the provisions of the Constitution.
Cases Cited
Australian Communist Party v The Commonwealth (1951) 83 CLR 1.
Ministerior Lands, The v Frame [1980] PNGLR 433.
SCR No 1 of 1982; Re Bouraga [1982] PNGLR 178.
State, The v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491.
State, The v Mogo Wonom [1975] PNGLR 311.
Toohey, Re; Ex parte Northern Land Council (1981) 151 CLR 170; 56 ALJR 164.
Appeal
This was an appeal from a decision of McDermott AJ refusing an injunction to restrain the defendants/respondents from acting to terminate the appointment of the plaintiffs as members of the Post and Telecommunications Commission.
Counsel
M Priestly and R Gunson, for the appellants.
E O’Sullivan, for the respondents.
Cur adv vult
20 May 1986
KIDU CJ: The appellants appeal against a National Court decision dismissing their application for an interlocutory or interim injunction. They had, on 17 January 1986, applied to the National Court, by originating summons pursuant to the National Court Rules, O 4, for orders restraining the respondents in the following terms:
“1.      The first respondent and his servants or agents be restrained from advising the second respondent that the appointments of the applicants or any of them to the Post and Telecommunications Corporation Board be terminated on the grounds of alleged inefficiency or otherwise.
2.       The second respondent and his servants or agents be restrained from giving written notices to the applicant or any of them that the second respondent intends to terminate the appointment of the applicants as members of the Post and Telecommunications Corporation Board on the grounds of alleged inefficiency or otherwise.
3.       The first and second respondents and their respective servants and agents be restrained from advising the applicants or any of them by written notice of the intention to terminate the appointment of the applicants as members of the Post and Telecommunications Corporation Board on the grounds of inefficiency or otherwise.”
The reasons for the refusal by McDermott AJ to grant the appellants an interim injunction pending the determination of the application for grant of what amounts to a permanent injunction are set out in a written judgment delivered in January 1986 but it is not necessary for me to go into them because I am of the view that they are misconceived as will be obvious from what I am going to say.
All the appellants are current members of the Board of the Post and Telecommunications Corporation, appointed under the provisions of s 7 of the Post and Telecommunications Act (Ch No 394), (the Act) by the Head of State acting on advice. And they can only be dismissed from office under s 11 which provides as follows:
“11.    Vacation of Office Members
(1)      Where a member, other than the Managing Director:
(a)      becomes permanently incapable of performing his duties; or
(b)      resigns his office by writing under his hand addressed to the Minister; or
(c)      is absent, except with the written consent of the Chairman, from three consecutive meetings of the Board; or
(d)      fails to comply with the provisions of Section 14; or
(e)      becomes bankrupt or applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with his creditors or makes an assignment of his remuneration for their benefit; or
(f)      is convicted of an offence punishable under a law by imprisonment for one year or longer or by death, and as a result of the conviction is sentenced to imprisonment or death.
(2)      The Head of State, acting on advice, may, at any time, by written notice, advise a member that he intends to terminate his appointment on the grounds of inefficiency, incapacity or misbehaviour.
(3)      Within 14 days of the receipt of a notice under Subsection (2), the member may reply in writing to the National Executive Council who shall consider the reply and as soon as is practicable deliver written notice of its decision to the member.
(4)      Where the member referred to in Subsection (2) does not, within 14 days of the receipt of a notice under Subsection (2), reply in writing to the National Executive Council, his appointment is terminated.”
Media reports, later confirmed by the Deputy Secretary for Justice, alerted the appellants to the fact that the action was afoot to have notices served on them under s 11(2) and the appellants took action in the National Court to head this off and asked for an interim injunction against the first and second respondents.
PROCEEDINGS AGAINST THE MINISTER
It is to be noted that a notice under s 11(2) of the Act is to be made by “the Head of State, acting on advice ...”. Section 3(1) of the Interpretation Act (Ch No 2) says that in any statutory provision “the Head of State, on advice ...” means “the Head of State acting with, and in accordance with the advice of the National Executive Council”. So under s 11(2) of the Act it is the National Executive Council which advises the Head of State to issue notices to a member or members of the Post and Telecommunications Corporation Board and not the Minister responsible for the Post and Telecommunications Corporation. It appears therefore that the proceedings against the first respondent, (the Hon Gabriel Ramoi, MP, Minister for Communications) were misconceived. The Minister is a member of the National Executive Council (NEC) (see s 149(2) of the Constitution) but if an injunction had been granted (interim or permanent) it would not have been binding on the National Executive Council as it was not, and still is not, a party to the proceedings.
PROCEEDINGS AGAINST THE GOVERNOR-GENERAL
What of the application for an injunction against the Head of State? Does an injunction lie against the Head of State in his official capacity? The Head of State (for all practical purposes is the Governor-General) can only act on advice of either the National Executive Council or a body or authority designated by written law. Section 86(2) of the Constitution provides as follows:
“Except as provided by Section 96(2) (terms and conditions of employment), in the exercise and performance of his privileges, powers, functions, duties and responsibilities the Head of State shall act only with, and in accordance with the advice of the National Executive Council, or some other body or authority prescribed by a Constitutional Law or an Act of the Parliament for a particular purpose as the body or authority in accordance with whose advice the Head of State is obliged, in a particular case, to act.”(My emphasis.)
There is no discretion whatsoever vested in the Head of State (see per Pratt J in The Minister for Lands v Frame [1980] PNGLR 433 at 477).
I consider that it is because the Head of State cannot act otherwise than on advice of the National Executive Council or a body prescribed by law that s 86(4) of the Constitution ensures that whatever advice the Head of State is given and by whom is non-justiciable:
“The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.”
This means of course that no Court has jurisdiction to look into questions relating to the advice given to the Head of State (see Sch 1.7 of the Constitution and The State v The Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, per Frost CJ at 499, and per Saldanha J at 504). This does not mean that the contents of the decision by the Head of State on advice cannot be questioned or contested. I agree with the view expressed by Pratt J in The Minister for Lands v Frame (at 477) that s 86(2) of the Constitution does not mean that an ultra vires (or unconstitutional) act of the Head of State on advice cannot be challenged:
“... To maintain that because the Governor-General has caused a regulation to be published in the Gazette following on advice, and because the advice received by the Governor-General is non-justiciable means that no consequent regulation can be challenged as ultra vires is a proposition of law so fundamentally misconceived as to warrant no further consideration.”
If the proposition rejected by Pratt J was indeed the law it would cause grave constitutional and legal problems. I emphasise the problems with the following examples:
(a)      Section 36(1) of the Constitution provides that no person may be submitted to torture. If the proposition were correct then a regulation under the Corrective Institutions Act (Ch No 63) made by the Head of State on advice allowing torture contrary to s 36(1) would not be open to constitutional challenge. Surely this cannot be the case.
(b)      Under s 3 of the Government Contracts Act (Ch No 34) any contract valued at over K300,000 must be entered into by the Governor-General on advice. If there was breach of contract one could not sue on it.
There are no specific constitutional (or statutory) provisions to the effect that the Head of State may or may not be sued or proceeded against in Court for any official act performed by him or her on advice. This is, in my view, an unfortunate omission in the Constitution but it is explained by the fact that the CPC Report made no recommendations about a Head of State. In fact the Report was against such an office being established (CPC Report, Ch 7, p 7/2, par 14). The Constituent Assembly did include provisions for the office of Head of State in the Constitution but made no provisions in relation to personal immunity from all legal proceedings in relation to the official acts of the Head of State.
As has been pointed out under s 86(2) of the Constitution the Head of State acts solely on the advice of the NEC or other body designated by written law. He or she does not determine anything. He or she merely affixes his or her signature to documents approved by the NEC or a body designated by written law. The Head of State has no personal power. He or she is a mere figurehead — a rubber stamp is not an inappropriate description of the nature of his or her function. It would therefore be most inappropriate that an office-holder or a person who is a “rubber-stamp” be personally taken to court for acting on advice or performing acts in respect of which he or she has absolutely no say legally.
There are two other provisions in the Constitution which, I consider, support the Head of State’s immunity from legal proceedings for his or her official acts. One is s 94(1)(a) of the Constitution, and it re-enforces the effect of s 86(2). It provides as follows:
“(1)    The Governor-General may be suspended from office:
(a)      by the National Executive Council, if he refuses or fails to act in accordance with the advice of the National Executive Council or of any other body or authority in accordance with whose advice he is obliged, in a particular case, to act, or acts, or purports to act contrary to or without any such advice;....”
The third relevant provision is in s 247(2) of the Constitution. It says:
“(2)    Papua New Guinea may sue and be sued, in accordance with an Act of the Parliament.” (There is in fact such an Act — the Claims By and Against the State Act (Ch No 30)).
It is to be noted that it is Papua New Guinea which the Constitution permits to be sued and not the Head of State, the Governor-General or the National Executive Council. Papua New Guinea is defined in the Constitution, Sch 1.2, as meaning the Independent State of Papua New Guinea. So a person who is aggrieved by any act or acts of the State must proceed against the Independent State of Papua New Guinea. The Head of State, the depository of executive power of the People (s 138 of the Constitution) exercised these powers on advice and on behalf of the People or the State (the People’s collective name). And therefore it is only right and proper that in relation to all official acts done by the Head of State an aggrieved person proceed against the State and not the Head of State personally.
From the foregoing I hold that the Head of State is immune from all legal proceedings with respect to the exercise and performance of the powers, duties and responsibilities of his or her office.
I would dismiss the appeal.
In view of my ruling it is really not necessary to consider any of the matters raised going to the merit of the appeal. To consider them would involve a false assumption that the appellant had in the National Court taken proceedings against the proper respondents. Also anything I might want to say on the merits really would be only obiter dicta.
KAPI DCJ: On the hearing of this appeal, two preliminary points were raised which were not argued before the Court below. These points have been adequately dealt with by the Chief Justice and Amet J. I agree with their conclusions and reasons.
The Court below dealt with this matter fully on the merits and the appeal before us was fully argued on those matters. However, as the majority of the Court is inclined to dismiss the appeal on the two preliminary points, I have decided not to go into the merits of the appeal.
I wish to add a few remarks in relation to the significance of s 86(4) of the Constitution. It is relevant to the question of whether or not proceedings can be brought against the Governor-General. There can be no argument that the question of what advice and by whom it was given to the Head of State is non-justiciable. What is the precise nature and the extent of this protection? In order to get a clear answer to this question, we must understand the nature of the relationship between the Head of State and the person or authority which gives advice to the Head of State. The nature of this relationship is well expressed by Aickin J in Re Toohey; Ex parte Northern Land Council (1981) 56 ALJR 164 at 199:
“It is to be borne in mind that in all jurisdictions in which this problem has arisen or has been adverted to the system of government has been one in which the relevant powers of the Crown and of a Crown representative are exercised in accordance with the advice of the executive arm of the government. Such powers are exercised by the Crown in Council or the Governor or Governor-General in Council, as the case may be, upon and in accordance with the advice of the Ministers from time to time comprising the Privy Council or the Executive Council. Acts so done or decisions so made do not depend upon the personal decision of the Queen or the Governor-General or equivalent representative of the Crown but upon the advice of the Ministers, advice which cannot be disregarded by Her Majesty or her representative in the making of an Order in Council. Her Majesty or her representative acts or decides in the sense that she acts or decides as she is advised by the Privy Council or an Executive Council; see, for example, per Kitto J in The Communist Party Case in the last two sentences of the passage which I have quoted above.”
The advertence by Aickin J to Australian Communist Party v The Commonwealth (1951) 83 CLR 1 was a reference to Kitto J, who said at 280:
“Finally, it must be remembered that the satisfaction with which alone the section is concerned is the satisfaction of the Governor-General acting with the advice of the Executive Council. So acting he has not to consider for himself either questions of fact or questions of law, but will be satisfied as he may be advised.”
This also is the position in Papua New Guinea in accordance with s 86(2) of the Constitution. Such is the nature of the responsibilities of the Head of State that he should not be sued personally or be made a party to any court proceedings. I agree entirely with the conclusions reached by the Chief Justice and Amet J in relation to the Head of State being party to these proceedings. The question remains, whether the advice and the reasons for the advice upon which the Head of State acts may be reviewed by a court of law. Section 86(4) of the Constitution directly addresses the issue. It protects:
(a)      the advice — it includes the advice which requires the Head of State to act. It may also include the reasons or the basis for the advice;
(b)      the identity of the person or authority which gives the advice.
Under the Post and Telecommunications Act (Ch No 394), the advice to issue notices come from the National Executive Council. (See s 11.) Within the context of this Act, the advice involves the exercise of discretion by the National Executive Council to advise the Head of State to issue notices of intention to terminate. It is within the discretion of the National Executive Council to tender any advice on the question of issuing notice of intention to terminate but such advice must be based on the grounds of inefficiency, incompetence or misconduct. Within these bounds, the National Executive Council is faced with the following matters to consider in its advice:
(a)      it may advise the Head of State not to issue the notices;
(b)      it may advise him to issue the notices;
(c)      it may advise him to defer the issuing of notices; and
(d)      it may advise the Head of State to withdraw the notices.
The effect of s 86(4) of the Constitution is that the advice by the National Executive Council to the Head of State to do any of the above matters is not subject to judicial review. In other words, the lawful exercise of discretion which is contained in the advice by the National Executive Council cannot be questioned in a court of law. I held a similar view in The Minister for Lands v Frame [1980] PNGLR 433 at 469:
“In this case, the Governor-General acted in accordance with the advice of the National Executive Council. This Court cannot question the advice of the National Executive Council. The fixation of the factor must stand.”
In that case, it was within the powers of the National Executive Council after receiving a report from the Valuer General to advise the Head of State to fix a prescribed factor. They could have advised the Head of State to prescribe a higher figure or a lower figure. In that case, they tendered advice on a lower figure. The exercise of such discretion containing the advice cannot be questioned by a court of law by virtue of s 86(4) of the Constitution. It was a lawful exercise of discretion.
What is the extent of this protection? As I have pointed out, where advice is given to the Head of State within the discretion given by law, that advice is non-justiciable. Where the advice falls outside the power or discretion given to the person or authority by the law, that advice is not protected by s 86(4) of the Constitution. This raises the question of the person or authority which is acting ultra vires the power given to it by the law. On this point, I am in agreement with Pratt J in The Minister for Lands v Frame. In fact at 458 to 459, I dealt with the question whether or not the determination of the prescribed factor was outside the powers given to the Head of State under the provisions of the Lands Acquisition Act. Similarly, where there is an inconsistency of an act of the Governor-General under an Act or regulation with a provision of the Constitution, that act cannot be protected by s 86(4) of the Constitution. This again is a separate question and I dealt with this issue in The Minister for Lands v Frame at 470-473. In that case, I concluded that the provisions in the Constitution relating to “just terms” were not applicable to Mr Frame as he was a naturalised citizen and his rights fell to be considered within the first five years of Independence. See s 68(4) of the Constitution.
Therefore, s 86(4) protects any advice which is given within the discretion permitted by an Act but does not protect:
(a)      any advice which is either inconsistent with the provisions of an Act or is ultra vires the Act; and
(b)      does not protect any act of the Head of State which is inconsistent with any provision of the Constitution.
For these reasons I would dismiss the appeal.
AMET J: Two preliminary procedural issues were raised by the Court with counsel for the appellants, at the outset of argument, which to my mind dispose of the appeal without having to proceed to the substantive matters which were argued ably at some length. Additionally, another issue of Constitutional significance, which was raised in argument, does not fall for consideration, and that is the issue as to the ambit of the Constitution, s 86(4) — the non-justiciability of “the question, what (if any) advice was given to the Head of State, or by whom ...”. I shall return to this later in the judgment.
The two issues raised with counsel for the appellants were whether the two respondents (defendants) in this interlocutory proceeding and the substantive action, the Honourable Gabriel Ramoi, as Minister for Communications and His Excellency, Sir Kingsford Dibela as Governor-General, were the correct parties to be so sued and joined. The joining of the second respondent in his capacity as the Head of State raises quite fundamental issues of Constitutional Executive Government under our autochthonous Constitution. It is thus necessary to examine the legislative machinery and procedures and the ambit of the respective role, powers and functions of the Minister and the Head of State in relation to the Post and Telecommunications Act (Ch No 394) (the Act). It also become necessary to examine the relevant Constitutional provisions pertaining to the powers and functions generally of the Head of State.
First, under s 7(3)(a) of the Act, the Minister makes recommendations to the National Executive council, which in turn advises the Head of State after considering the recommendations, on the appointment of certain members of the Post and Telecommunications Corporation Board (the Board). Under s 7(3)(c) the Minister has the power to determine the terms and conditions of the said appointees.
Section 11(1) of the Act provides for the vacation of office of Members of the Board, other than the Managing Director, and enumerates in pars (a) to (f) the grounds upon which their appointments may be terminated. It further provides that “the Head of State, acting on advice, shall terminate his appointment”.
Section 11(2) provides that, “the Head of State, acting on advice, may, at any time, by written notice, advise a member that he intends to terminate his appointment on the grounds of inefficiency, incapacity or misbehaviour”.
Section 11(3) provides that, “Within 14 days of the receipt of a notice under Subsection (2), the member may reply in writing to the National Executive Council who shall consider the reply and as soon as is practicable deliver written notice of its decision to the member”.
Section 11(4) provides that, “Where the member referred to in Subsection (2) does not, within 14 days of the receipt of a notice under Subsection (2), reply in writing to the National Executive Council, his appointment is terminated”.
It is sufficiently established that the “advice” herein referred to is advice from the National Executive Council — Constitution, s 86(2). References to the National Executive Council in s 11(3) and s 11(4) render consistency to this conclusion.
The first feature to note therefore is that whilst the Minister has the power and indeed the obligation to make recommendations to the National Executive Council for its advice to the Head of State as to candidates for appointment to the Board under s 7(3)(a), he has no corresponding legislative role to play on a member’s termination. As I have concluded, the advice, upon which the Head of State acts is from the National Executive Council. There is no reference to any recommendation to the National Executive Council by the Minister as to termination. Under s 11(3) any reply by a Board member, following receipt of notice of intention to terminate from the Head of State, is to the National Executive Council. Again, no reference is made to any part played by the Minister, except to the extent that he is a member of the National Executive Council.
Technically, therefore, the Minister has no legislative power or role in the termination of the appointment of the members of the Board.
The reality of ministerial and executive government, of course, is that the Minister may well and often will initiate and recommend to the National Executive Council that advice be given to the Head of State for the termination of members of the Board’s appointment, as appears to be clearly the case in this instance. Technically, the National Executive Council is not precluded from, of its own volition, at the motion, submission or recommendation of another member of the National Executive Council, resolving to advise the Head of State to terminate the appointment of a member of the Board.
The “advice” to the Head of State is thus from the National Executive Council and not the Minister. In my opinion, it should therefore be the National Executive Council which is the principle party and not the Minister, Gabriel Ramoi. The Minister has no power to do anything under the Act in relation to termination which he needs to be restrained from carrying through to completion.
The second issue, as to whether the Head of State may be joined as a party in a civil suit in his official capacity is of fundamental Constitutional significance, in my view, in the light of our autochthonous Constitution and scheme of Constitutional government. There can be no doubt that the Head of State, in his personal capacity, is liable to be sued and be prosecuted for personal debt or offence as the case may be. The issue is whether he can be similarly enjoined by name in his official capacity as Head of State in a civil action for action in his official capacity.
We start from the premise asserted in the Preamble to the Constitution “that all power belongs to the people”. As Frost CJ said in The State v Mogo Wonom [1975] PNGLR 311 at 315-316:
“The Constitution itself is a truly autochthonous Constitution established, as the preamble recites, by the will of the people, to whom ‘all power belongs’. Its authority is thus original and in no way derivative from any other source. Unlike the case of Australia where the first settlers brought with them the common law there is, to use the words of Sir Owen Dixon speaking of the American Constitution, ‘no anterior law providing the source of juristic authority’ for the institutions of government now established.”
In the words of Pratt J in SCR No 1 of 1982; Re Bouraga [1982] PNGLR 178 at 202:
“... The powers wielded by any servant of the public, be he Minister, civil servant, judge or whatever stems from a delegation from the people ....”
I add that the Head of State similarly is delegated powers and functions from the people, the source of all power, through the Constitution. Thus s 138 of the Constitution on Vesting of the Executive Power — provides:
“Subject to this Constitution, the executive power of the People is vested in the Head of State, to be exercised in accordance with Division V.2 (functions, etc., of the Head of State).”
Under s 139 the National Executive consists of:
(a)      The Head of State acting in accordance with advice; and
(b)      The National Executive Council.
The executive power of the people in reality is vested in the National Executive Council, which in many instances acts through the Head of State. In my view therefore, whenever the National Executive Council performs an executive act through the Head of State, or put another way, when the Head of State performs an executive act upon advice from the National Executive Council, he is in fact acting on behalf of the people of Papua New Guinea who are collectively known by their corporate name as “The State”.
Pursuant to the Constitution, s 99, also, the power, authority and jurisdiction of the People is to be exercised by the National Government which consists of the National Parliament, the National Executive and the National Judicial System. Consistently with this it was held in The State v Mogo Wonom that:
“the judicial authority of the people is vested in the National Judicial System ... The power of judicature in this country lies in the people at large. This has been invested by the people in the Courts established under the Constitution ... it is appropriate that proceedings be brought by the people in their collective corporate name ‘The State’ (s 1).”
The Court thus held that criminal prosecution upon indictment should be in the collective corporate name of the people from whom the power to prosecute for offences against it is derived, that is “The State”.
It is my view also, therefore, that because the executive power exercised by the Head of State, in accordance with the advice of the National Executive Council, is vested in him by the People through the Constitution, it is appropriate that proceedings brought against the exercise of that executive power by the Head of State on behalf of the People, should be against the People in their collective corporate name “The State”. This view is, I consider, affirmed by the Claims By and Against the State Act (Ch No 30), which by s 2 and s 3, provides for suits against and by the State respectively to be brought in the name of “The State”. Consistently with this spirit of the autochthonous nature of the Constitution is the ruling I have referred to earlier in The State v Mogo Wonom.
In my opinion therefore, this interlocutory process miscarried at the outset in that the wrong parties have been enjoined. The effect of this is that there was technically no proceedings before the court from which an appeal lies to this Court.
In the end result, because the granting of an injunction is in its nature a discretionary relief and because I find no error of fact or law in the exercise of that discretion by McDermott AJ, I would dismiss the appeal if I had to consider it on its merits.
The Constitution, s 86(4), was raised in argument in relation to the issue whether to challenge the validity of the decision or action of the Head of State, acting upon advice, was to question the advice or challenge the validity of that advice given to the Head of State. This is, of course, precluded by s 86(4). A conclusive opinion on the issue is not necessary for the disposition of this appeal and so I do not attempt to do that. I too consider that to challenge the legality, validity or indeed the constitutionality of the final act or decision of the Head of State acting upon advice is not to question the advice, if any, given to the Head of State. Whatever the advice might have been, is not the issue, it is the end result of that which is challenged. As an example, whatever the advice might be, if the action or decision of the Head of State is clearly unconstitutional, I do not think it can be argued that that decision cannot be challenged as being unconstitutional. Such a challenge is not concerned with what advice, if any, or the contents of such advice, but the fact that the decision ipso facto is unconstitutional.
In the end result, however, I do not find it necessary to deal with the substantive merits of the issues raised in argument. I do so with no disrespect to able arguments presented by learned counsel. I would therefore refuse leave to appeal, there being no action on foot at the outset, the wrong parties having been enjoined.
I refuse certification for overseas counsel.
Appeal dismissed
Lawyer for the appellant: R Gunson.
Lawyer for the respondent: E O’Sullivan.