N9275
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 734 OF 2018

BETWEEN:
AQUILA SAMSON
Plaintiff

AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
ROBERT ALPHONSE KAIYUM
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

AND:
FLY RIVER PROVINCIAL GOVERNMENT
Fourth Defendant

Waigani: Miviri J
2021: 19th October

PRACTICE & PROCEDURE – Judicial Review & appeals – Notice of Motion – Section 18 (2) Constitution – Original Jurisdiction Interpretation Supreme Court – Section 73 (2) Organic Law on Provincial Governments & Local Level Governments – Section 59, 86 (4) 99, 153 (2) Constitution – Questions Underlying Judicial Review Pending – Facts Not Established Warranting Referral – balance Not discharged – leave refused – cost follow event.

Cases Cited:
Mai and Avi, The State v [1988-89] PNGLR 56 
Prai and Ondawame, Re [1979] PNGLR 42 
Application pursuant to Constitution, Section 18(1) [2021] PGSC 14; SC2082 
Lupari v Somare [2008] PGNC 121; N3476
Burns Philp (PNG) Ltd v The State [1989] PGNC 24;69 
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797
Innovest Ltd v Pruaitch [2014] PGNC 288; N5949
Lupari v Somare [2008] PGSC 19; SC930 
Counsel:

G. Kult, for Plaintiff
L. Kandi, for First & Third Defendants
E. Ngombe, for Fourth Defendant
					
RULING
01st November, 2021
1.	MIVIRI, J: On the 21st October 2020 the plaintiff was granted leave for judicial review of his appointment and removal as Provincial Administrator Western Province. 

2.	He is seeking review of the process that unearthed him off that seat. In this regard he has filed the review Book dated 20th July 2020 to proceed to its substantive hearing. His readiness for trial is demonstrated by the review book which has been certified as to its correctness by his lawyers and the first and third defendant’s lawyers. Judicial Review is time conscious as per order 16 Rule 4. In my view any collateral issue raised must be underpinning fundamental. It must be such that without its resolution it will seriously affect the determination of the substantive judicial review raised by the plaintiff. That is that the decision made in the challenge raised by the plaintiff against the way in procedure, he was unearthed will remain fragile and prompt to being unearthed with the lurking Constitutional questions that the first and third defendants have raised. It is without doubt critical that the issues that have been raised as questions to the Supreme Court must be allowed to proceed that way. That decision in resolving will settle what will follow in the challenge by the Plaintiff. The base to the decision in law, Constitutional law will be resolved settling the complaint in procedure raised by the plaintiff.

3.	It will be a similar situation as observed in Mai and Avi, The State v [1988-89] PNGLR 56, where determination of the Constitutional questions of, what was detention, and what was an arrest? Whether there was a difference in the way the rights to section 42 (2) were applied in the case of a detained person, and in the case of a person who was arrested? Particularly with respect to informing the detained and the arrested of their rights under section 42 (2) of seeing a lawyer? Whether that was genuine where he was merely told of it, but there was no real practical suspension after, and giving immediate application of it. The detained or arrested was allowed to exercise that right to see a lawyer there and then, before continuing with the record of interview. The questions were underlying, fundamental and core to the case in the National Court of the two accused Gaia Avi and Songke Mai and were referred by the National Court pursuant to section 18 (2) of the Constitution.

4.	But the specific words of section 18 (2) is expressed to be subject to the Constitution, the court was not bound to refer the complaints, or either of them to the Supreme Court, Prai and Ondawame, Re [1979] PNGLR 42. It is therefore not automatic that referral takes place there and then of the Constitutional questions. Because the National Court has inherent powers pursuant to section 155 (3) of the Constitution. In my view it needs to be asked whether the exercise of its powers there in the determination of this issues raised will not alleviate what is core, underlying or fundamental to the case at hand. In other words, the referral must for all intent and purpose be made, and ought to be resolved by the Supreme Court by its powers under section 155 (2) (4) paving solid foundation in law for what decision the National Court will make in the matter. 

5.	Therefore, it follows that it is in the prerogative of the first and third Defendants to file in compliance of the rules of the Supreme Court this procedure in the Supreme Court. Particularly Order 4, Rules 1 and 3 (d) and form 1 paragraph 4 of the Supreme Court Rules, the pleading of the facts of which the request for interpretation of the Constitutional Law provisions arise. In this regard relevant is also Order 4 Rules 1 and 3 (e) and Form 1, paragraph 5 of the Supreme Court Rules: Application pursuant to Constitution, Section 18(1) [2021] PGSC 14; SC2082 

6.	Instead of taking the discretion by these orders of the Supreme Court Rules, the first and third defendants have filed a notice of motion which they say has been prompted by legal issues proposed and agreed to by the parties which give rise to a number of fundamental Constitutional questions relating to the interpretation and application of Constitutional law provisions. They rely on the affidavit of Andrea B. Yauieb sworn of the 10th August 2021 filed that same day. She is a lawyer employed by M.S. Wagambie Lawyers who act for the first and third defendants in the matter. She is assisting the counsel in the matter Laias Kandi. She annexures “A” copy of a letter dated 01st June 2021 from Plaintiff’s Lawyers to the Defendants and their lawyers enclosing for endorsement by the Defendants proposed Legal Issues for Trial.

7.	She deposes that, “the Legal issues proposed and agreed to by the parties give rise to a number of fundamental constitutional questions relating to the interpretation and application of the Constitutional Law provisions.

8.	And that the defendants herein, upon instructions from their respective clients, sought the plaintiff’s views and concurrence, to agree to have such questions referred to the Supreme Court, for an opinion on the proper interpretation and application of these Constitutional Law provisions, namely: 1. Section 73 (2) of the Organic Law on Provincial Governments and Local Level Governments and ; 2. Sections 59, 86 (4), 99 and 153 (2) of the Constitution.”

9.	By our letter (annexure “B”) dated 27th July 2021 addressed to the Plaintiff’s Lawyers and copied to the lawyers for the other defendants, we sought views of the plaintiff and his lawyers on the Defendant’s proposed questions to be referred to the Supreme Court.” It brought no response from the lawyers for the Plaintiff.

10.	The affidavit deposes that the essential facts giving rise to the Constitutional Law questions are; “On the 14th May 2018, the fly River Provincial Government resolved to recommend a Robert Alphonse Kalyun (Second Defendant) as its preferred candidate besides two other candidates on the list of candidates submitted to the National Executive Council (NEC) by the Provincial Executive Council (PEC) for appointment as permanent Provincial Administrator for Western Province. Review Book page 37.

11.	On 07th June 2018, the NEC resolved to recommend a Aquila Sampson (Plaintiff) to be appointed as Provincial Administrator for Western Province. (Review Book page 39).

12.	The Fly River Provincial Government petitioned the NEC, by way of letter dated 08th June 2018 urging the NEC to reconsider and rescind its decision of 07th June 2018, upon noticing that its preferred candidate for the position of Provincial Administrator for Western Province was overlooked and not recommended by the NEC for appointment by the Head of State. (Review Book page 44).

13.	The NEC on 02nd August 2018, based on the petition by Fly River Provincial Government, recalled, reconsidered, and altered its decision dated 07th June 2018, and recommended to the Head of State that the Second Defendant (preferred Candidate) be appointed to the Provincial Administrator for Western Province. (See Review Book page 78).

14.	The Head of State by Gazettal Notice published on 24th August 2018 appointed the Second Defendant as Provincial Administrator for Western Province. ( See Review Book page 273).

15.	The Constitutional Law Questions, as proposed by the Defendants (subject to review and agreement between the parties, especially after the Plaintiff’s input to the proposed questions) are the Following:

(a)	In the case of an appointment of a provincial administrator pursuant to section 73 (2) of the Organic Law on Provincial Governments and Local Level Governments the question, whether or not the procedures prescribed for the National Executive Council (NEC) have been complied with is non-justiciable under section 153 (2) of the Constitution.

(b)	If the answer to the question under paragraph (a) is in the negative, then in respect of an appointment of a provincial administrator pursuant to section 73 (2) of the Organic Law on Provincial Governments and Local Level Governments, whether the NEC is entitled to “Alter” its decision using the same list of names submitted by the Provincial Executive Council (PEC) invoking Schedule 1.10 (3) of the Constitution, prior to the gazettal of the appointment.

(c)	On its proper construction and application, does Section 73(2) of the Organic Law on Provincial Governments and Local Level Governments operate to enable the appointment of a Provincial administrator to legal take effect at the time of publishing “by Notice in the National Gazette the appointment” and not, without or prior to Gazettal Notice.

(d)	On its proper construction and application, does section 86 (4) of the Constitution allow a Court to question the validity of a subsequent advice to the head of State (concerning the appointment of a particular person as provincial administrator 

16.	The relevant law is Section 73 Organic Law Provincial Governments and Local Level Governments which creates the office of the Provincial Administrator. Section 73 (2) (a) calls for a list of three names submitted by the Provincial Executive Council. From which the National Executive Council has consultation with the Public Services Commission on the subject: Section 73 (2) (b). After which from the list it will appoint the Provincial Administrator. The section does not say that the candidate is that which is recommended by the Provincial Executive Council nor does it say that the candidate is in the order of preference by the numbering given of the three. In my view it is a process in law to arrive at the Provincial Administrator. To get the best possible on merit for the job.

17.	And so, it will be a process in law to unearth the same. And it will be a procedure in accordance with section 59 of the Constitution. In determining the principles of natural justice is observed not without nor heed to. Here Gazettal has not taken place of that decision taken to appoint him. This is a requirement by section 73 (2), Shall by notice in the National Gazette appoint from the list submitted the Provincial Administrator. That has not been done here there has been no notice in accordance. It is a missing part fundamental under that provision not heeded to. Is there an appointment made of a Provincial Administrator within law of the Plaintiff? The aggregate is that these are arguable basis that can be addressed in a judicial review proceeding. 

18.	And the facts that the plaintiff’s enquiries with the Secretary on the 27th June 2018 for the formal documents including the National Executive Council “NEC” decision received no response. On the 2nd August 2018, the NEC by Special meeting decision number 223/2018 revoked his appointment rescinding its earlier decision 153/2018 meeting number 05/2018 appointing him as Provincial Administrator Western Province. And no reasons have been accorded him as to why his appointment was revoked after being made. This is a senior officer holding the chair of acting Commissioner for National Lands Commission. There is procedure to be examined by these facts not Constitutional issues as raised by the motion of the First and third defendants.

19.	Because the discretion is of the appointing authority the highest administrative and decision-making authority of the land the National Executive Council, which comprises the Prime Minister as its chairman and all other Ministers of Government. It is the pinnacle of the decision-making body of government executive arm, and therefore there is argument for and against for its decision making to be non-justiciable, but Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008), demonstrates that the rule of law its observance is to all regardless, even the National Executive Council is susceptible to its tentacles. Where there is abuse of authority and power and procedure has not been followed, even if it is the NEC it is clearly subject to judicial review: Burns Philp (PNG) Ltd v The State [1989] PGNC 24; N769 (3 November 1989).

20.	At the outset Plaintiff would not be the plaintiff in this proceeding if he were not drawn in as second of the three persons who were short listed for appointment as the Provincial Administrator of the Department of Western Province. That short list is annexure “AS-1” of his affidavit described as Fly River Provincial Government Provincial Executive Council decision number NG FRPG/PEC 20 of 14th May 2018 and subject is Recommendation for Appointment of Permanent Provincial Administrator for Western Province. It is a resolution of the Provincial Executive Council evidenced by its official records referenced numbered. 

21.	And it is pursuant to a motion moved by Honourable Wapri Gaini MPA Deputy Governor seconded by Honourable Betty Wine MPA chairlady for Health. It is signed by the Secretary of the Executive Council Gula Asiri and counter signed by Honourable Taboi Awi Yoto MP Governor and Chairman of the Provincial Executive Council dated the 14th May 2018. For all intent and purposes, it is an official Government document out of and adhering to process within the Government. Any reasonable person sighting in my view would be enticed as the plaintiff to take the course he took.  Because the second defendant and one Utoro Ekesae were the other persons on that short list. 

22.	Process was followed leading to his appointment as Provincial Administrator that would have been the road in reverse to unseat him. As it is on the face of the Organic law on Provincial and Local Level Governments, Public Services Management Act and the Regulation following were not adhered to in the revocation of his appointment. There is error of law on the face and would be arguable. It is simply judicial review concerned with the process rather than what is the substance: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC797 (28 October 2005). That is the law which has been followed and applied by this court in Innovest Ltd v Pruaitch [2014] PGNC 288; N5949 (17 March 2014). Given the facts and all alluded to above, the balance has not been tilted that the Constitutional questions are primary and underlay, and therefore their referral and determination will settle the matter.

23.	Because the affidavit material that has been relied of Andrea B Yauieb is not firsthand setting out the facts relied on in the matter. It is second or third evidence. And that is clear because it is derived in the particulars that she has set out from the Review Book filed by the plaintiff. Which include the Statement of Agreed & Disputed Facts & Issues for Trial. It means in effect that the facts relied invoking that there are indeed Constitutional questions posed underlying is not made out to sustain the motion applied here by the First and Third Defendants. This is clear from Application pursuant to Constitution, Section 18(1) (supra). The facts must warrant to invoke referral of the questions. As it is the facts do not warrant the Constitutional questions raised. In any case they derive from the statement of Agreed & Disputed Facts & Issues for Trial. Appropriate as in Prai and Ondawame, Re (supra) are matters in the discretion of the National Court capable of being determined in the normal judicial review hearing. And that is clear succinct from the facts that I set out above. They in aggregate do not entice nor do they see that a referral should be made of the Constitutional Questions that have been posed. These are really the questions that underpin this judicial review case. And the National Court is discretion by the provisions empowering which I set out above to see out that matter and give a determination on it. It need not be the subject of a referral of Constitutional Questions because the facts do not warrant.

24.	And given all set above the Supreme Court will be slow to assume referral,  Lupari v Somare [2008] PGSC 19; SC930 (29 August 2008). Because the Constitutional questions are really the dispute in law that the National Court is discretion to determine by its powers. What is really sought is without merit from the facts set out above. It would not be swayed in that light. The law is not backed by the facts relied and so the motion is not made out as contended. It would be refused with costs. The matter will revert to the directions callover and hearing Monday 08th November 2021 for a hearing date to be allocated for the substantive notice of motion now pending since filed.

25.	The orders of the court are: 

(1)	The first and third Defendants motion to refer Constitutional Questions is not made out.
(2)	The motion is refused and dismissed.
(3)	The substantive notice of motion for Judicial Review pending is adjourned to directions hearing Monday 08th November 2021 at 9.30am for allocation of hearing date. 
(4)	Costs follow the event forthwith.
Orders Accordingly.
__________________________________________________________________
Young & Williams Lawyers: Lawyer for the Plaintiff
M.S. Wagambie Lawyers: Lawyer for the First & Third Defendants	
Tamutai Lawyers: Lawyer for the Fourth Defendants