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Skate v Barter [2005] PGNC 72; N2925 (10 November 2005)

N2925

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS NO. 712 OF 2005

BETWEEN

HONOURABLE SIR WILLIAM SKATE,
K.C.M.G., MP
Plaintiff

AND

HONOURABLE SIR PETER BARTER, Kt, M.P
MINISTER FOR INTER GOVERNMENT RELATIONS
First Defendant

AND

HONOURABLE SIR MICHAEL SOMARE K.C.M.G.M.P.
PRIME MINISTER OF PAPUA NEW GUINEA AND
CHAIRMAN OF NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

THE INDEPENDENT STATE OF
PAPUA NEW GUINEA
Third Defendant

Waigani : Los, J
2005 : 23rd September
10th November

Cases cited:
Bill Skate and Philip Taku v. Ruma Tau & Ors [1999] N2126, OS 538.
Special Reference No. 12 of 2001, SC680.

Counsel:
S. Soi, for the Applicant
S. Singin, for Second Defendant
F. Kuvi, for Third Defendant

The plaintiff has applied by way of Judicial review, after leave having been granted on 2nd August 2005 to compel –

(a) The First Defendant, Hon. Sir Peter Barter, Kt, MP to advise the Head of State to publish a notice in the National Gazette in relation to the application of the Organic Law on Provincial and Local Level Government in respect of National Capital District, a Province of Papua New Guinea, within seventy - two (72) hours from the date of the order; and

(b) The Second Defendant, Hon. Sir Michael Somare, K.C.M.G, M.P. to direct the first legislative counsel and his draftsman to prepare all appropriate governmental instrument(s) for the Minister for Provincial and Local Level Government to advise the Head of State to sign and publish a notice in the National Gazette that will give effect to the Organic Law on Provincial and Local Level Government to apply in respect of the National Capital District, a Province of Papua New Guinea, within seventy two (72) hours; and

(c) The Second Defendant to direct the Government Printer to publish to type – set and publish in the National Gazette, a Notice signed by the Head of State that the Organic Law on Provincial and Local Level Government apply to give effect to the National Capital District, a Province of Papua New Guinea, within seventy two (72) hours.

The consequence expected on those three directions sought is that Sir William Skate as member for the National Capital District would necessarily assume constitutional office as the Governor of newly declared province.

I should first therefore address whether the Minister has any discretion as it is contended in his favour and determine that as a matter of law. Secondly, I should also determine whether as matters of facts some matters that need to be completed in order to grant the NCD a status of a province of Papua New Guinea.

Some concessions had been made by the first and second defendants that is Sir Peter Barter and Sir Michael Somare because they realize their parts of the obligation. That is Sir Peter Barter needs to publish a notice in the National Gazette to give effect to the Organic Law on Provincial and Local Level Government where the National Capital District has to exist and operate as a Province of Papua New Guinea. Likewise Sir Michael Somare by law needs to direct the legislative counsel and his draftsman to prepare relevant instruments for the minister responsible to advise the Head of State to effect a notice in the Gazette that would make the Organic Law on Provincial and Local Level Government apply to the National Capital District as a Province of Papua New Guinea.

There does not seem also a dispute that an Organic Law or Act of Parliament need to make provisions in respect of the Government of the National Capital District. Specifically this is how the counsel argued. The first point is that the Minister responsible for Provincial and Local Level Governments, understands what he has to do, that is to advise the Head of State to publish a notice in the National Gazette for the National Capital District to be a Province of Papua New Guinea. Section 4 of the constitution provides for creation of the National Capital District and subsection 4 of that provision commands that –

"An organic law or an Act of the Parliament shall make provision in respect of the Government of the National Capital District."

The National Capital District Commission Act 2001 also makes provision in respect of the Government of the National Capital District pursuant to section 4 of the constitution. All these are in place. The simple question that is asked is why hasn’t the Minister provided such an advice when he has been aware that he is statute bound to give such advice? This point was also made by another judge that is His Honour Justice Sevua in the case of OS 538 of 1999, Bill Skate and Philip Taku v. Ruma Tau & Ors N2126: He said –

"It may well be true that the minister’s direction is neither perpetual nor infinite and that I emphasize that sometime in future, the minister will have to perform this statutory duty".

Further, the Supreme Court in Special Reference No. 12 of 2001, SC680 was mildly critical in saying "we consider that the lack of notice is not a mere technical or mechanical defect" noting of course that it was not the function of the court to interfere with any political or executive decision affecting the status, functions and operations strictly on the political scene, excepting enforcement of duties and obligations arising from the constitutional and legislative duties.

The Plaintiff has sufficiently stated his case so the issue is whether writ of mandamus or command could be issued in this circumstance. The first question is whether or not Writ of Mandamus lies. If it lies then the Plaintiff must satisfy the Court –

(a) whether a statute has imposed duty on the Minister to act according to law?
(b) whether the Minister has performed that statutory duty?
(c) If the Minister has not performed that statutory duty, has the Plaintiff demanded the Minister to perform that duty?
(d) Where the demand to perform made but Minister has still not performed, what are the powers the Court has to direct, compel or coerce the Minister to act accordingly and perform the statutory duty?

The Plaintiff quotes de Smith on Judicial Review of the Administrative Action (2nd ed), 561 and says –

"Mandamus lies to secure the performance of a public duty, in the performance of which the applicant must show that he has demanded performance of the duty and the performance has been refused by the authority obliged to discharge it. It is pre-eminently a discretionary remedy and the court will decline to award if another legal remedy is equally beneficial, convenient and effective."

de Smith at page 576 continues and says –

"But where a statute has imposed a duty on an expressly – designated public official, and his duty is to be wholly discharged by him in his official capacity, as distinct from his capacity as an adviser to or instrument of the Crown, the courts have shown a readiness to grant mandamus"."

I accept that is the law and Sir Peter Barter is "designated public official" in his role as Minister responsible for Provincial and Local Level Government.

The next question is whether the "duty" that the minister is said to have failed to do is a statutory duty. The amendment (No. 4 of 1997 certified on 18 June 1997) made to the preamble of the Organic law relating to the application of the Organic Law of the National Capital District which states –

"made by the National Parliament, to come into operation –

(a) ...
(b) ...
(c) In so far as relating to the National Capital District in accordance with a notice published in the National Gazette by the Head of State, acting with and in accordance with, advice of the Minister."

It is submitted that the Minister has delayed performing this duty by failing to advise the Head of State to publish a notice in the National Gazette to give effect to the Organic Law on Provincial and Local Level Government apply in respect of the National Capital District. It is submitted the delay has been far stretched since 18 June 1997. That was the date of certification of the Organic Law on Provincial and Local Level Government Amendment No. 4 of 1997.

For the Plaintiff the Court was told the Minister has delayed in publishing the notice in the gazette to give effect to the Organic Law on the Provincial and Local Level Government to apply to the NCD. It is the delay that has caused this application. On the Plaintiffs behalf put three points together the argument would be whether the Minister had performed his duty upon demand by the Plaintiff and if not what should be the consequences?

In the bulk of the claims the Defendants (Sir Peter Barter, Sir Michael Somare and the State) concede with the understanding and submission made on behalf of the Plaintiff. That is to-date the Minister has not provided any such advice. It is also conceded that Minister is statute bound to give such advice, hence concession is made to the understanding of the decisions in Bill Skate & Philip Taku –v- Ruma Tau & Or, N2126 and Special Reference No. 12 of 2001, SC680.

However, they say there are various aspects of the administration that have to be in place. Therefore they have deliberately decided not to publish the notice. Those were pointed out in 2001 Supreme Court decision. They included a need to amend the constitution if National Capital District were to operate as another province and a large number of the administrative issues need to be settled and established. They include –

(i) continuation of the administrative and financial systems
(ii) continuation of the National Capital District
(iii) Savings of existing contracts and agreements
(iv) Transfer of titles, leases and other instruments
(v) Continuation of pending legal proceedings; and
(vi) Continuation of existing National Capital District legislation.

The point sought to be made is that that National Capital District has never been a province and so the interim saving and transitional arrangements provided for under that law could not apply to National Capital District. It is submitted that there is no other legislation in existence providing for these interim measures. To avoid any chaotic situation the Minister should not be compelled to given his statutory advice, until these fundamental requirements are in place.

I think that the submission by Mr Soi on behalf of the Plaintiff has provided sufficient answer for various ‘lacks’ so to speak in relation to the capital becoming a province. That is should the notice be published in the National Gazette the Organic Law on Provincial Government will apply, the provincial assembly would be established and function as the law making authority of the province and the Provincial Member of the Parliament for National Capital District would assume powers and responsibilities of the Governor of the Province and the Chairman of the Provincial Assembly.

The fact in my view is that the National Capital District within which is the city of Port Moresby is not anything like a normal province and its capital. To stand with its function and make up of conglomeration of populous is unlike say in Madang or Sepik Provinces where the majority of populous in or surrounding the provincial capital are made up of the people of those provinces. Whereas in the National Capital District and the city of Port Moresby the make up of the population is different. The capitals main aim cannot be confused with the aim of a provincial headquarters as such. Hence I consider that while I accept most of the legal and logical arguments presented on behalf of Sir William Skate, I should be slow to grant what he had requested immediately, that is within 72 hours. I accept that ’72 hours’ may have been used merely to indicate various frustrations; but it could also indicate that regardless of any negative implication may be the plaintiff wants to get on with what he has sought. This Court should be slow to appear to be an instrument of threats.

I therefore refuse the application.

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Lawyers for the Applicant : Soi & Associate Lawyers
Lawyers for 2nd Defendant : Singin PM’s Lawyer
Lawyers for 1st & 3rd Defendant : Solicitor General