N2048

PAPUA NEW GUINEA

[In the National Court of Justice]

OS 80 OF 2001

BETWEEN

PETER IPATAS,
Governor or Enga Provincial Government
First Plaintiff

AND

ENGA PROVINCIAL GOVERNMENT
Second Plaintiff

AND

SIR MEKERE MORAUTA, MP
Prime Minister & Chairman of the
National Executive Council
First Defendant

AND

HON. IAIRO LASARO, MP
Minister for Provincial & Local-Level
Government Affairs
Second Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani	:	Sevua, J
16th & 19th February, 2001

Provincial Governments – Practice and procedures – Locus standi – Application for Judicial Review – Application by Governor of Enga and Enga Provincial Government – Powers, functions and finances of Enga Provincial Government withdrawn – Whether plaintiffs have sufficient standing.

Constitution – Preamble, Basic Rights and s.187 (E) (i) Organic Law on Provincial Governments and Local-Level Governments – ss: 6, 10, 14, 17, 19, 20, 22, 23, 51, 54, 55, 58, 66, 67, 72, 73, 74 and 80.

Held:

1.	The first plaintiff, Peter Ipatas, has standing as a Member of Parliament representing the Enga People and the Enga Provincial Government electorate and also as a citizen.

2.	As both the Governor and Enga Provincial Government have not been suspended, the Governor, Peter Ipatas, has standing to bring this suit on his own, and also, on behalf of the Enga Provincial Government.

Cases followed:
Supreme Court Reference No. 4 of 1980, In the matter of the Right Honourable Michael Thomas Somare [1981] PNGLR 265

Counsel:
P. Paraka & H. Derkley for Plaintiffs
G. Poole for Defendants

19th February, 2001

SEVUA, J:	On the 13th February, 2001, the National Executive Council (the NEC), pursuant to Section 51(2) (c) of the Organic Law on Provincial Governments and Local-Level Governments (the Organic Law) withdrew all powers and functions and withheld all finances of the Enga Provincial Government, the second plaintiff herein. The appointment of the Provincial Administrator, Samuel Abal was also revoked, and Kundapen Keluen Talyaga was appointed Acting Provincial Administrator of Enga Province. These decisions were published in the National Gazette No. G26 on 15th February, 2001.

The Governor of Enga, Peter Ipatas and the Enga Provincial Government have since instituted these proceedings to challenge the decision of the National Executive Council in withdrawing all the powers and functions and withholding finances of the Enga Provincial Government.

Last Friday, 16th February, when this matter came before me, the plaintiffs were intending to apply for leave for a judicial review of the National Executive Council decision of 13th February. The plaintiffs also intended to apply for a stay of such decision until the determination of the substantive issues.

A preliminary issue was raised by the defendants. Mr Poole of counsel for the defendants has raised the question of locus standi. He submitted that since the decision of the National Executive Council has already been published in the National Gazette, the plaintiffs have no standing to bring this suit against the defendants. He also submitted that the first plaintiff, Peter Ipatas, has power to sue as an individual, but not as Governor on behalf of the Enga Provincial Government. In response to the plaintiffs’ submissions, Mr Poole submitted that the administrative head of the Enga Provincial Government is now the Acting Provincial Administrator pursuant to Section 74 of the Organic Law.

Mr Paraka, counsel for the plaintiffs submitted that the first plaintiff, Peter Ipatas, is still the head of the Enga Provincial Administration; he still represents the people of Enga in the National Parliament; he is still responsible to the Enga Provincial Government, and furthermore, his powers have not been removed therefore he has standing. Counsel further submitted that s.51(2) of the Organic Law relates to finance and administration, not political powers, therefore as the first plaintiff’s powers have not been withdrawn, he is still the Governor of Enga, pursuant to s.17 of the Organic Law.

It was also submitted for the plaintiffs that, even though the powers and functions of the Enga Provincial Government have been withdrawn, the first plaintiff still serves as the Regional Member of Enga Province; still serves and represents the people who elected him, and still represents his people in the National Parliament. His representative powers have not been removed. As the regional representative of his people, the first plaintiff has standing to come to Court to challenge the decision of the National Executive Council in relation to the non-compliance or otherwise of the law.

Counsel for the plaintiffs referred to Supreme Court Reference No. 4 of 1980, In the Matter of the Right Honorable Michael Thomas Somare, [1981] PNGLR 265, which was a Supreme Court decision in respect of a petition brought by Mr Somare who was then the Leader of Opposition, who challenged the constitutional validity of an Act of Parliament, namely The Defence Force (Presence Abroad) Act 1980, where the National Parliament, pursuant to that Act, had committed troops of the Papua New Guinea Defence Force to Vanuatu for peace keeping duties.

The majority of the Court in a 3 – 2 decision (Kearney, DCJ and Greville Smith, J dissenting), held that the Leader of Opposition in the National Parliament, as a citizen, has standing to invoke the powers of the Supreme Court under s.18(1) of the Constitution to determine whether an Act of Parliament (The Defence Force (Presence Abroad) Act 1980) is invalid as being unconstitutional (my underlining). I will express my own opinion in respect of that decision after considering other issues in this case.

Having heard and considered the submissions of both counsel, I am of the view that the first plaintiff, Peter Ipatas, is still the Governor of Enga Province pursuant to s.17(2) of the Organic Law. He has not been dismissed from office as envisaged by ss.19 and 20 of the Organic Law. He is still the regional representative of the Enga people in the National Parliament. He still remains a member of the Enga Provincial Assembly in accordance with s.10 of the Organic Law and is still head of Enga Provincial Government. Accordingly I hold that Peter Ipatas is still the Governor of Enga Province.

There are various provisions of the Organic Law, which in my opinion, relate directly to the preliminary issue of law raised here. I consider that when one considers all these provisions, the decision, at the end of the day, will reflect the combined effect of these provisions. I will now allude to them.

I start with s.6, which provides the legal capacity of a Provincial Government. Part II of the Organic Law deals with the institutional structure of legislative and executive arms of Provincial Governments. I have already adverted to s.10. I need only reiterate that s.10(1) establishes a Provincial Government and s.10(2) provides the basis for the provincial legislature, which is the Provincial Assembly. By s.14(2), the Provincial Governor is the Chairman of the Provincial Assembly. Then s.17(2), which I have already alluded to, provides that the Member of Parliament who represents the provincial electorate is the Provincial Governor. Sections 19 and 20, which I have already adverted to deal with, the manner in which a Governor is dismissed from office.

Section 22 deals with the political and executive responsibilities of a Provincial Governor. He is charged with the political responsibility of the Provincial Assembly in so far as the overall development and good governance of the province are concerned. Furthermore, the Governor also has the constitutional responsibility to the Minister for Provincial Governments and Local-Level Governments. Under s.23(3) the Governor is the Chairman of the Provincial Executive Council.

Then s.51, which is the basis for which these proceedings were instituted deals with the withdrawal of powers, functions and finances of Provincial Governments. The actual suspension of Provincial Governments is governed by ss.54, 55 and 58 of the Organic Law, and s.187 E(1) of the Constitution.

Part IV of the Organic Law deals with the institutional structure of the administrative system of Provincial Governments. Section 72(1) establishes the provincial administrative system, while s.73(1) establishes the office of the Provincial Administrator. Section 74 provides the functions of the Provincial Administrator. He is the Chief Executive Officer of the Provincial Government; he is the administrative head of the staff in the province; he is the officer responsible for the efficient management of the administrative services in the province; and other functions as stipulated in s.74(1) of the Organic Law. By virtue of s.80, the Provincial Administrator is also charged with the responsibilities of the National Government functions through the National Departments and agencies in the provinces and districts.

I have referred to all these different provisions of the Organic Law because I consider it fundamental to the disposition of the issue of law raised by the defendants. In particular, the issue of locus standi of the first plaintiff on behalf of the second plaintiff. Having perused and considered all these provisions, I have formed the opinion that the Governor of a Province and the Provincial Administrator has different powers and functions, which are clearly defined under the Organic Law. It is my view that the Administrator of a Province does not exercise the powers and functions of the Governor of the Province and vice versa. The two have different powers and functions, clearly distinctive from each other.

In the present case, I am of the view that, the first plaintiff, Peter Ipatas, is the political and executive head of the Enga Provincial Government, while the Administrator is the administrative head of the Provincial Government administrative machinery. The two are not the same.

Contrary to what Mr Poole submitted, having read all the provisions I have alluded to, I am of the view that, the Provincial Administrator is not the political head of a province. What as happened, as in the case of Southern Highlands Province and Western Province is that, the powers and functions and finances of the Enga Provincial Government have been withdrawn. However, the Enga Provincial Government has not been suspended. It cannot therefore be argued that the Governor, Peter Ipatas, has no standing to bring this action on behalf of the Enga Provincial Government. The Enga Provincial Government is still in existence and he is still the head of that Government.

I am of the opinion that since the Enga Provincial Government is not under suspension, the political and executive head, which is the Governor, Peter Ipatas, is still the legitimate head of the Enga Provincial Government and Enga Province, despite the National Executive Council’s decision.

It is my view that until the National Executive Council determines otherwise, the effect of the decision of 13th February, 2001 means that in the interim, the Governor of Enga and his provincial government members no longer have the legislative and executive powers and functions to exercise in respect of the province. Their financial responsibilities have also been removed in the interim. While it is correct that the Acting Provincial Administrator is the head of the administrative machinery in Enga, in my view, he does not, and cannot, by law exercise the legislative and executive powers and functions of the Enga Provincial Government. I can find no provision in the Organic Law on Provincial Governments and Local-Level Governments that empowers a Acting Provincial Administrator to exercise the legislative and executive powers and functions of a Provincial Government. It is obvious, to my mind, that the political and executive responsibilities of a provincial government are distinct from the administrative system of the provincial government.

I consider therefore that the first plaintiff, and Governor of Enga Province, Peter Ipatas, has standing to bring this suit on behalf of the Enga Provincial Government. He has not been suspended, and secondly, the Enga Provincial Government has not been suspended. He is still the political representative of the province, but moreso, he is still the political and executive head of the Enga Provincial Government. Until, he and Enga Provincial Government are suspended and their legislative and executive powers and functions divested from them and vested in the National Executive Council pursuant to ss.66 and 67 of the Organic Law, the first plaintiff has standing to bring this action on behalf of the Enga Provincial Government.

The Governor of Enga and the Enga Provincial Government are not under suspension. It stands to reason therefore, in my view, that the Governor has locus standi to bring a suit on behalf of the Enga Provincial Government. Both the Governor and the Enga Provincial Government now no longer have the powers and functions to exercise, nor do they have the financial responsibility to exercise because those powers and functions have been withdrawn in accordance with s.51(2)(c) of the Organic Law. The National Executive Council decision does not mean that the Governor is no longer the political and executive head of Enga Provincial Government.

In so far as the standing of Governor Ipatas, as a citizen, is concerned, I am of the view that, on the basis of Supreme Court Reference No. 4 of 1980, which I have cited earlier, he has standing, not only as a Member of Parliament representing Enga Province, but as a citizen, to come to Court to challenge the National Executive Council decision affecting the province and the people he represents in the National Parliament. I have read the opinions of the late former Chief Justice Sir Buri Kidu and Kapi, J (as he then was) and I adopt their reasons in this case.

The Constitution sets out in detailed form the basic rights and freedoms of individuals. Every individual has standing under the Constitution to challenge the validity of a law of the Parliament should it infringe or threaten to infringe his exercise of one of his Constitutional rights and freedoms. The preamble to the Constitution clearly states "that all power belong to the people – acting through their duly elected representative." The Basic Rights enshrined in the Constitution also provides the basic rights and freedoms I have referred to.

The first plaintiff is a Member of Parliament. He is the Member representing the regional electorate of Enga. He is therefore the representative of Enga people in the National Parliament. In my view, it must stand to reason that he has standing to come to this Court on behalf of his province and the people he represents, to challenge the validity of the National Executive Council’s decision of 13th February, 2001. As an individual, I consider that he also has standing to come to Court on behalf of the Enga Province.

It is the judgment of this Court, and I so rule that, the first plaintiff, Peter Ipatas, has standing, as a Member of Parliament representing the Enga people therefore the Enga Provincial Government, and also as a citizen to come to this Court to challenge the decision of the National Executive Council of 13th February, 2001.

I order that costs of this preliminary issue be costs in the cause.
___________________________________________________________________________
Lawyers for the Plaintiffs	:	Paul Paraka Lawyers
Lawyer for the Defendants	:	Pato Lawyers