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Ere v Enga Provincial Government [1994] PGNC 23; N1285 (19 December 1994)

Unreported National Court Decisions

N1285

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 456 OF 1994
SALAN ERE - Plaintiff
v
ENGA PROVINCIAL GOVERNMENT - Defendant

Mount Hagen

Woods J
12 December 1994
14-15 December 1994
19 December 1994

PROVINCIAL ASSEMBLY - Amendment to Consitutional Law - Correct minutes - Minutes are ratified at subsequent meeting - Internal procedures of parliament - Presumption of regularity - Court cannot intervene in executive government.

PARTIES - Standing of a member of Provincial Assembly.

Counsel:

S Norum for the Plaintiff

P Peraki for the Defendant

19 December 1994

WOODS J: The Plaintiff is a member of the Enga Provincial Assembly and is challenging the validity of an amendment to the Enga Mineral Revenue Stabilization Fund Act which was passed by the Assembly on or about the 19th October 1994. He seeks declarations that the Amending Act has failed to comply with Section 6 of the Enga Constitution and further that the amendment would be inoperative as the Minister for Provincial Affairs has not been consulted in accordance with Sections 35 and 36 of the Organic Law on Provincial Government and therefore the Government has illegally drawn monies from the Stabilisation Fund.

First I am satisfied that the plaintiff has standing to approach this Court in this matter as he is a concerned Member of the Enga Provincial Assembly and any illegal or invalid drawings from the Stabilisation Fund would be a matter of serious concern to the people of Enga and to the the nation as a whole. I do note that the Stabilisation Fund Act in section 16 does allow for members of the Provincial Assembly to approach the Court in certain situations however the plaintiff here cannot bring himself within section 16 as that section does require one third of the Members of the Assembly to join a petition. But the fact that such a petition is allowed shows the concern of the original proponents of the Fund that any application of the fund should be kept under close scrutiny.

The purpose of the Fund is to ensure that revenue accruing to the Province from the development of its mineral resources is dealt with in a manner that will promote the Province’s longterm financial and economic stability and development, and to ensure any wide fluctuation in revenue accruing to the Province from year to year does not interfere with the orderly development of the Province and to ensure that Funds are available from time to time to promote the participation of the people of the Province in the development of its mineral resources. Then, in short, all monies received by the Province from or in respect of all mineral enterprises operating in the Province are to be paid into the Fund and then a maximum of half of the monies paid into the Fund may be paid out into the Revenue Fund for the Province and the other half is to be retained and invested under strict guidelines set out in section 15 of the Act in enterprises directly engaged in the development of the mineral resources of the Province.

Thus like all stabilisation funds the purpose of the Act and the Fund is to shield the people and the province from any fluctuation in revenue and also to provide a long term security in the availability of funds for the benefit of major projects for the people and the Province. The amendment passed by the Assembly in October in effect abolishes the restrictions on the use that can be made of the monies to be retained in the Fund such that the whole intent and purpose of the Fund is negated. And from the documents presented to the Court what is the intent is to apply monies from the Funds to in effect prop up the Budget and pay out overexpenditures.

Section 6 of the Enga Constitution provides how a Constitutional Law can be amended. Firstly a copy of a proposed Act must be given to each Member and the Speaker at least 21 days before the proposed Act is to be debated. It has been submitted on behalf of the Defendant that such was done at the August sitting of the Assembly and I find no reason on the evidence before me to doubt this.

Secondly the proposed Act must be the subject of a debate in the Assembly on at least two occasions. I have been presented with copies of the Minutes of the Assembly meetings on 4th, 14th and 21st October. There have been two different copies of the Minutes for 4th October sittings presented and both have been duly certified by the Clerk and the Acting Speaker. The Acting Clerk gave evidence that one set of minutes was only a draft and the other set was duly corrected to be the final official minutes. Whilst this Court must deplore the standards whereby a Clerk and a Speaker can certify as correct minutes what in effect is only a draft set of minutes and can then turn around and certify a “more correct” version. Such behaviour and practice can only lead to suspicion and questions as to the suitability of the persons for those positions and perhaps should be a matter that the Minister for Provincial Affairs and the National Executive Council should look into. However which version is the correct minutes being a matter that should normally be considered at the next sittings of the Assembly it cannot be the role of this court to interfere such with the sittings and business of a Parliament when the normal practice has its own inbuilt checks, namely the tabling and consideration of a minutes at the next meeting. In the absence of any evidence otherwise this Court must accept that the correctness of the minutes would have been considered at the next sittings of the Assembly. I therefore must be satisfied that the correct minutes is that averred to by the Acting Clerk as the one that shows there was a consideration of and vote taken on the Amendment to the Mineral Revenue Stabilisation Fund Act.

There is then the minutes of the Assembly meeting of the 14 October which showed there was a second reading of the Bill amending the Stabilisation Fund Act. Of course it must be noted that this sittings was not 14 days or more from the date of the first reading of the Bill. I also note from the minutes that the minutes of the Meeting of the 4 October were not presented and approved as correct. The minutes of Meeting number 3 were considered, but the meeting of 4 October was called Special Meeting No 2. However if a Parliament does not consider and pass Minutes of a former meeting that is an internal matter for the Parliament or Assembly and it is not up to a Court to question that.

There was then a further meeting of the Assembly on 21 October when the Amending Bill to the Stabilisation Fund Act was read a third time, this would therefore bring it in compliance with the Constitution requirement of two separate sittings 14 days apart.

It is then submitted that the Minister for Provincial Affairs in the National Parliament was not forwarded the Bill after it was passed and before it came into operation. The Minister is then given 30 days to consider the Bill and if necessary present it to the National Parliament for its consideration before it comes into effect. However there is no evidence that the Minister was not sent the Bill. I find that this Court must accept that the statutory requirements have been met unless there is clear evidence casting doubt on that. Just because there was no reaction from the Minister does not mean he did not receive it. It would appear from the nil reaction from the National Government that it is quite agreeable to the amending Bill and thereby agreeing to the whole undermining of the policy and aims of Stabilisation Funds. One must of course realise also that before the Amending Bill was presented to the Assembly it had to be forwarded to the National Minister so the National Minister and the National Government had foreknowledge of these proposals to in effect negate the intent and policy of the Enga Mineral Revenue Stabilisation Fund Act but the National Government made no objection to this.

So I must find that there are no grounds for this Court to interfere with the legislative process and the administration of the Stabilisation Fund. That is a matter for the Executive Government, The Provincial Assembly has acted within its laws to amend the Stabilisation Fund Act and the National Government has sanctioned this.

Whilst the plaintiff has good reason to complain there is nothing that this Court can do to prevent the complete undermining of the whole policy of looking to the future and safeguarding the benefits received from mining ventures for the benefit of the people in the long term. The Plaintiff has come to this Court because he and many people have come to regard the Court as an institution if not the only institution that has the power and prestige and independence to stand up for the right principles, however when the elected members act within their powers the Court cannot interfere, that is their elected power. However I feel that it can be still incumbant on the Court to reveal when matters of such serious long term implication come before it as this matter is. In effect what the Enga Provincial Government and the National Government has done is completely nullify the intention and policy of all Stabilisation Funds. By the amendment to this Fund Act being as it is the Stabilisation Fund from the Porgera Mine the most important mineral development in this Country the Government has agreed to live for the day and forget about planning for the future. These additional Funds being drawn out of the Fund are not being used to promote the Province’s and thus the Country’s long term financial and economic stability and development but according to papers presented to the Court instead are being used to prop up the Province’s budget and going towards the normal salaries and overexpenditure with some going to routine maintenance and projects which should be normal budgetry items. It is obvious from a perusal of the papers presented to the Court why the Plaintiff could not get the support of a third of the Members of the Assembly for a Petition under the Act, as the salaries of the members of the Assembly is an item these Funds are to be used for.

I and any rightminded people with thought for the future must deplore the shallow and greedy thinking which would now appear to be the policy of the Provincial and National Governments. Stabilisation Funds are now finished and the policy is to spend what is earned to-day and forget about the future, that is now the Government policy and the message. So the example that this country was showing to the world in the management of its resources will now be shattered.

I find there are no grounds in law for this Court to interfere however I can only hope the Governments and the people realise what they have done. I dismiss the application.

Lawyer for the Plaintiff: S Norum

Lawyer for the Defendant: P Peraki