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In the Matter of Section 18(1) of the Constitution and In the Matter of Application by Anderson Agiru [2001] PGSC 7; SC671 (8 October 2001)

SC671

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCR No. 04 of 2000

IN THE MATTER OF SECTION 18(1) OF THE CONSTITUTION

IN THE MATTER OF APPLICATION BY ANDERSON AGIRU

Waigani: Amet CJ, Kapi D.C.J., Los J., Salika J., Sevua J.
2001 : 26 April, 8 October

CONSTITUTIONAL LAW – whether Part III Div. 8 of the Organic Law on Provincial Governments and Local-Level Governments:

(1) is expressly authorized to be made by an organic law under s 12 (1) (a) of the Constitution?
(2) is inconsistent with s 187E and 187F of the Constitution under s 12 (1) (b) of the Constitution?
(3) may take effect as an Act of Parliament under s 12 (3) (a) of the Constitution?

Counsel:
G Shepherd for Anderson Agiru
J Nonggor for the State
P Paraka as Amicus Curiae

8 October 2001

AMET CJ:

Primary Facts

This is a Reference brought pursuant to s. 18(1) of the Constitution by Anderson Agiru, Member of the National Parliament and the Governor of the Southern Highlands Province, seeking an interpretation as to the constitutional validity of Division 8 of the Organic Law on Provincial Governments and Local-level Governments - (the Organic Law).

On 13th October 2000 the National Executive Council (NEC) decided to withdraw all powers, functions and finances of the Southern Highlands Provincial Government, for a period of 12 months with the option to extend the period if necessary, in accordance with s. 51 (2) (C) of the Organic Law.

Division 8 of the Organic Law which contains s. 51 to s. 53 provides for the withdrawal of powers, functions and finances, the return of powers and functions and for the compliance with certain other conditions by Provincial Governments and Local-level Governments in the following terms:

51. Withdrawal of powers functions and finances.

(1) Where there are findings by—

(a) the Auditor-General—

(i) Of corruption or abuse of power within a Provincial Government or a Local-level Government so as to render the government either ineffective or lacking in public respect and confidence; or

(ii) Of failure by a Provincial Government or a Local-level Government to keep or cause to be kept proper accounts and records of transactions or dealings; or

(iii) That a Provincial Government or a Local-level Government has an ineffective internal control system; or

(iv) That a Provincial Government or a Local-level Government has failed to submit reports as required by law; or

(b) The Minister responsible for provincial and local-level government matters, or a Special Investigating Committee appointed for the purpose by the National Executive Council, that—

(i) There has been a breakdown in the administration of a province or local-level government area; or

(ii) There has been deliberate and persistent frustration of or failure to comply with lawful directions of the National Government; or

(iii) A Provincial Government or a Local-level Government has deliberately and persistently disobeyed applicable laws, including the Constitution, an Organic Law (including this Organic Law) or any national legislation applicable to the province or local-level government area; or

(iv) There has been a failure to carry out functions in accordance with the development policies and standards of the National Government,

the National Executive Council shall direct the Provincial Government or the Local-level Government concerned to rectify the matter and such direction shall specify the manner and time in which such rectification is to be carried out.

(2) Where a Provincial Government or a Local-level Government refuses or fails to comply with a direction issued under Subsection (1), the National Executive Council may-

(a) Withdraw all or any of the powers and functions of; or

(b) Withdraw and withhold all or any finances to; or

(c) Withdraw all or any of the powers and functions of, and withdraw and withhold all or any finances to,

the Provincial Government or the Local-level Government, as the case may be.

(3) This section does not prevent the Auditor-General, the Minister responsible for provincial government and local-level government matters, or the Special Investigating Committee, as the case may be, from referring any person, including members of a Provincial Government, a Local-level Government or any other person, to the Ombudsman Commission, the Public Prosecutor, the Police or any other relevant authority for further investigation and action.

52. Return Of Powers and Functions.
    

Subject to Section 53, the National Executive Council may, on the recommendation of the Minister responsible for provincial government and local-level government matters, given after receiving a report from the Auditor-General, the Minister responsible for provincial government and local-level government matters or the Special Investigating Committee, recommending the return of the powers and functions, direct that, with effect from a specified date, the Provincial Government or the Local-level Government is authorized to exercise all or any of the powers and functions withdrawn in accordance with Section 51.

53. Compliance with certain conditions.

(1) A Provincial Government or a Local-level Government to which Section 52 applies, for the period specified by the National Executive Council, shall-

(a) Submit all its proposed financial estimates, including any Bill appropriating monies, to the National Executive Council for approval; and

(b) Provide such reports, to the National Executive Council, on the financial management and other related matters as the Council may, from time to time, require.

(2) In addition to the requirements under Subsection (1), except with the prior approval of the National Executive Council, a Provincial Government or a Local-level Government shall not transfer funds from one activity or project item to another during the period specified in that subsection.

Issues

The issue raised in the Reference is Division 8 of the Organic Law, constitutionally valid as having been expressly authorized by the Constitution, as required by Constitution s. 12(1)(a)?

Section 12 provides that:

(1) For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is-

(a) For or in respect of a matter provision for which by way of an Organic Law is expressly authorized by this Constitution; and

(b) Not inconsistent with this Constitution; and

(c) Expressed to be an Organic Law.

(2) An Organic Law may be altered only by another Organic Law, or by an alteration to this Constitution.

(3) Nothing in this section prevents an Organic Law from-

(a) Making any provision that might be made by an Act of the Parliament; or

(b) Requiring any provision to be made by an Act of the Parliament that might otherwise be so made,

but any such provision may be altered by the same majority that is required for any other Act of the Parliament.

The Referrer argued that s. 12(1)(a) requires that the constitution shall make express provision authorizing the making of an Organic Law in respect of a particular matter. In other words an Organic Law can only be made in respect of a particular matter if the constitution expressly authorizes the making of it in respect of the particular matter. He argued that Constitution Part VIA which makes provisions for Provincial Governments and Local-level Governments, did not contain any provision ‘expressly authorizing’ the making of an Organic Law to empower the National Executive Council to withdraw powers, functions and finances of a Provincial Government. He submitted that Division 8 is therefore unconstitutional and invalid.

The NEC submitted that there is no inconsistency between the Constitutional Amendment to Pt. VIA of the Constitution and the withdrawal powers granted under Division 8 of the Organic Law. It argued that s. 12(1)(a) does not contain a mandatory requirement that the Constitution authorize all matters to be contained in an Organic Law. It submitted that the provision is descriptive only and therefore an Organic Law is not invalid because it provides for matters that are not expressly referred to in the Constitutional provision enabling the making of an Organic Law, as long as the general subject matter has been authorized by the provision. The NEC argued that the making of an Organic Law to make further provisions in respect of Provincial Governments and Local-level Governments was authorized by Part VIA, and all other details were properly to be the subject of the Organic Law. Division 8 was therefore not in conflict with nor was it inconsistent with any constitutional provision such that it should be rendered unconstitutional or invalid.

The NEC further argued that it was necessary to make provisions vesting power in it to impose accountability on Provincial Governments and Local-level Governments. And if Provincial Governments and Local-level Governments did not appear to administer these delegated responsibilities competently then it was appropriate that the NEC should be empowered to withdraw powers, functions and finances from them if they did not comply with directions to rectify the identified deficiencies. These powers therefore did not conflict with any Constitutional provisions.

Decision

The application comes before this Court by a Constitution s. 18(1) reference. In my opinion that is the appropriate process. The Referrer is not a s. 19 authority. All the parties agreed that this is the appropriate process as there are no issues of primary facts that require the National Court’s determination. In my opinion it is appropriate for any interested person to apply directly under s. 18(1) to this court for its opinion on the interpretation or application of any provision of a constitutional law. Any person who has sufficient interest and who does not qualify under Constitution s. 19 should be able to come to the Supreme Court directly under s. 18(1).

Section 18 states that:

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other that the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

There is precedent for this position. In S.C.R. No. 4 of 1980; Re Petition of M. T. Somare [1981] PNG.LR 265, then Chief Justice Kidu said:

Subject to application of s. 23, s. 42(5), s. 57 and s. 58 of the Constitution, the Supreme Court has "original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law" (Constitution s. 18(1)). The question then is whether the Rt. Hon. Michael Thomas Somare, C.H., M.P., has the necessary legal standing to invoke the jurisdiction of this Court under s. 18(1) of the Constitution.

In my view, in cases where the constitutionality or otherwise of an Act of the National Parliament arises, locus standi should not be restricted to any particular group.

The Constitution of this country provides that all power belongs to the people. These powers are then given to three bodies – the National Parliament (legislative), the Executive (the executive power) and the Judicial System (the judicial power). These powers are given with the clear understanding that they be used properly and constitutionally.

The people, depository of all powers in Papua New Guinea, have, through the Constitution, directed that the Parliament make laws which comply with the Constitution. If the legislative power is exercised contrary to the Constitution, why should not the People come to this Court and complain? After all it is their power and they are, in my view, entitled to complain to the Supreme Court, in whom their power to determine the constitutionality or otherwise of an Act of the Parliament is vested. As a beneficiary in trust is entitled to invoke the powers of the courts to ensure that the trustees act in their interest so should the People whose legislative power the Parliament exercises, complain to this Court if they think the Legislature acts contrary to the Constitution through which their power has been given to it.

I agree with and adopt these comments as being entirely applicable to this application. Anderson Agiru is the Provincial Member for the Southern Highlands Province in the National Parliament and thus Governor and Head of the Provincial Government which has been affected by the decision of the NEC in it’s invocation of Division 8 of the Organic Law, the subject of this application. He does not qualify as a person who can bring a reference under s. 19 of the Constitution. The issues raised are not matters the National Court has any jurisdiction to determine. The only primary fact necessary for the reference, being the decision by the NEC, is not in dispute and therefor it is appropriate that the reference be brought directly to this court.

Proper Approach to Constitutional Interpretation

The approach to the task of understanding the proper meaning to be ascribed or imputed to the provisions of this home-ground constitution has been amply articulated previously, and that is to discern the spirit, the purposes and the rationale that inspired the different structures of this constitution, in giving meaning to the relevant provisions under review. In my opinion this methodology would best accord with the intent of the constitution s. 158(2) that "in interpreting the law the courts shall give paramount consideration to the dispensation of justice."

In my opinion it is in approaching the issue from this perspective, with a more purposive and liberal approach to the task of interpretation, that enables the court to discern the legislators intention when it effected the constitutional amendment and the organic law simultaneously. What were the purposes that inspired and motivated the legislative amendment? For that purpose it is relevant to consider the relevant constitutional provisions as they then existed prior to the amendment and what the amendments were. I do not consider that it is sufficient to engage in a purely literal analysis and interpretation of the provisions of this constitution.

Turning to the issue raised, I think that there are several preliminary questions that can be posed to fully address the principle issue. What are the requirements of s. 12(1) of the constitution? Firstly, it stipulates that an organic law can only be made if it is authorized by a constitutional provision, and that the constitutional provision authorizes what the organic law shall be in respect of. Secondly, it requires that the organic law shall not be inconsistent with the constitution and thirdly, it is expressed to be an organic law.

The next preliminary issue is what is the precise requirement of s. 12(1)(a)? Does it require that the specific subject matter of the organic law is expressly authorized by the constitutional provision, or does it require the making of the organic law in respect of the general subject matter only to be expressly authorized? More specifically, does s. 12(1)(a) require that the specific matter of vesting withdrawal powers in the NEC should be expressly authorized by the constitutional provision before it can be enacted in an organic law? Or is the making of an organic law generally, in relation to the further powers and functions of provincial governments and local-level governments, which is to be expressly authorized by the constitutional provision. The answer to these preliminary questions will address the issue posed by the reference.

PART VIA of the Constitution provided for provincial governments and local-level governments in the following terms:

187A. There shall be a system of Provincial Governments and Local-level Governments for Papua New Guinea in accordance with this Part.

187B. An Organic Law shall provide for, or make provision in respect of, the form and the manner of establishment of the Provincial Governments and the Local-level Governments.

187C. Constitution, functions, etc., of Provincial Governments and Local-level Governments.

(1) Subject to this Part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-level Government.

(2) ....

(3) ....

(4) ....

(5) An Organic Law shall make provision for the devolution and delegation to each Provincial Government and Local-level Government of substantial powers of decision-making and substantial administrative powers in respect of matters of direct concern to the province and to the local-level government area.

(6) An Organic Law shall make provision in respect of the legislative powers of Provincial Governments and Local-level Governments.

(7) ....

(8) ....

187E. Suspension of Provincial Governments and Local-level Governments.

(1) Where a Provincial Government or a Local-level Government undermines or attempts to undermine the authority of the National Parliament or the national unity, the National Executive Council may provisionally suspend the Provincial Government or the Local-level Government concerned subject to confirmation by an absolute majority vote of the Parliament.

Prior to the amendment s. 187E(1) of the Constitution provided that:

Where –

There is wide-spread corruption in the administration of the province; or

There has been gross mismanagement of the financial affairs of the province; or

There has been a breakdown in the administration of the province; or

There has been deliberate and persistent frustration of, or failure to comply with, lawful directions of the National government; or

The provincial government has deliberately and persistently disobeyed applicable laws, including the National legislation applicable to the province,

The National Executive Council may provisionally suspend the Provincial Government concerned, subject to confirmation by a simple majority vote of the Parliament.

It will be noted that the amendment to Constitution s. 187E(1) and the enactment of Division 8, s. 51 was to effect a transfer of the previous grounds for suspension under the constitution to the organic law. Whilst there are more provisions in s. 51(1), they are in essence an enlargement of the previous s. 187E(1) grounds.

The new grounds for suspension under the constitution, it will be noted, are narrower and far more stringent. These achieve a number of fundamental principle purposes. Firstly, they reflect the serious nature of the devolution of power to the provincial and local level governments, and thus the seriousness with which suspension should be considered only on very serious grounds affecting the authority of the National Parliament and national unity. This also gives provincial and local level governments greater stability from possible suspension on unmeritorious grounds.

Secondly, the previous grounds for suspension now transferred to Division 8 are properly issues of financial and administrative accountability and good governance. I accept, as was submitted by the NEC that the principal purpose for the introduction of this division was to overcome and avoid the complexity and serious obligation for suspension under Division 9 and to provide less-burdensome and disruptive machinery for rendering accountability.

It is important to note further that the emphasis in Division 8 is not the removal of powers, functions and finances. That is to be the ultimate last resort sanction, available to the NEC, if the primary accountable processes envisaged under s. 51(1) have been exhausted with no satisfactory outcome. These processes are quite explicit and intended to ensure that every opportunity is given to the provincial or local level government to remedy any alleged deficiency reported or brought to the attention of the respective government. There is adequate provision for the opportunity to rectify any such shortcomings and to provide accountability so that the ultimate sanction of withdrawal of powers, functions and finances need not have to be invoked.

The processes are these. Firstly, where the Auditor-General makes any finding of the matters enumerated under s. 51(1)(a)(i) to (iv), or the Minister or the Special Investigating Committee, appointed by the NEC for the purpose, make a finding under s. 51(1)(b)(i) to (iv), the NEC shall direct the Provincial Government or Local-level Government concerned to rectify the matter and specify the manner and the time in which to rectify the matter.

It should be noted that any deficiency in the discharge or administration of responsibility in respect of any such matter/s reported on is not intended to result in automatic withdrawal of powers and functions. There is built in adequate process to ensure that every opportunity is afforded to the governments concerned to address identified deficiencies. That in fact is the essence of these provisions and not necessarily the withdrawal of powers and functions. Section 51(2) stipulates that where a provincial or local-level government refuses or fails to comply with the direction, the NEC may withdraw any power or function or all powers and functions and finances, depending on the nature of the finding or reports.

In my opinion the principle purpose of Division 8 is to provide a more efficient and effective mechanism for rendering good governance and financial accountability and transparency on the part of the Provincial Governments and Local-level Governments. The primary focus of the division is to provide a mechanism for the National Government to monitor the performance of the lower level governments to ensure those services are being provided and finances are being managed efficiently and with accountability. If the National Government has reports and believes on good grounds that the powers, functions and finances are not being administered effectively then it has the duty to give instructions and directions to the lower level governments to rectify the deficiencies progressively as each issue or need is brought to the attention of the NEC. If the lower level governments refuse or do not rectify the deficiency then powers, functions and finances may be withdrawn until such time as the directions are complied with. It must also be understood that the proper exercise of this last resort sanction is ultimately to obtain rectification of the deficiency identified, and once that is done, full power and functions should be returned to the duly elected lower level government.

Again it is to be clearly understood, in my opinion, that the scheme of Division 8 is to enable effective and expeditious rectification of any deficiency or identified problems with administration, good governance and financial management and accountability issues. If these are promptly attended to and rectified to the satisfaction of the NEC, then of course no withdrawal of powers, functions and finances would become necessary.

The legislature is presumed to have this effect in mind when it effected the amendments simultaneously. The general purposes of accountability, transparency and good governance are legitimate for the enactment of the organic law provisions. It is consistent with the general intent of the devolution of powers and functions of government to lower-level governments.

Having fully enlightened my mind with the fuller purposes of the constitutional amendments, I remind myself of the task, what is to be the proper approach to the interpretation to this provision to give effect and meaning to the legislatures intention. What approach to interpretation will effect a just result?

In the end result, I prefer a more liberal and purposive approach that will preserve the more important purposes and ensure a more functional constitutional arrangement in good governance. This approach results in the view that it is the general "provision by way of an organic law" which must be "expressly authorized" rather than "the matter" of the Organic Law. This view accords with my opinion in Kaseng v. Namaliu [1995] PNGLR 481, "that s 12(1)(a) is descriptive only of the kind of law that an Organic Law is.... " The general provision for the making of an organic law to give effect to Part VIA of the Constitution is not challenged. The specific details of the particular subject matter properly remains for the organic law to amplify. Division 8 therefore in my opinion is sufficiently authorized by Pt. VIA of the Constitution, and constitutionally valid.

I find support for this view also in the views expressed by Hinchliffe and Andrew JJ in Kaseng v. Namaliu (supra) at p. 517. They said:

Part VIA provides for certain matters to be dealt with by way of Organic Law. Section 187A deals with "a system of Provincial Government" and the succeeding provisions make provision for various matters relating to the system of provincial government and provide for an Organic Law to spell out the detail of the matter.

Section 12(1)(a) of the Constitution requires:

1. provision for, or in respect of, a matter by way of an Organic Law
2. be expressly authorized by this Constitution.
   

Thus, there is only a requirement that there be "provision" for an Organic Law to deal with a matter. Since Organic Laws are themselves to spell out the detail, "provision" for which is made by the Constitution, there does not have to be a detailed statement providing for, or in respect of, a matter.

In our opinion, there has been no breach of s. 12(1)(a) of the Constitution.

To conclude to the contrary, that it is the specific matter of the vesting of withdrawal powers in the NEC that should be expressly authorized by the constitution and that Division 8 is unconstitutional and invalid because that has not been done would, in my respectful opinion, result in a situation of lack of proper accountability mechanism in place and lower level governments would not be held accountable for the administration of delegated powers on behalf of the people. This would be an unsatisfactory effect and would not give effect to the general intentions of the constitutional scheme for the devolution of powers to lower levels of government.

KAPI DCJ: This matter has come before us by way of a "purported reference" under s 18 (1) of the Constitution. The Hon. Anderson Agiru, Governor of Southern Highlands Provincial Government (Agiru) is designated as the referrer. At the beginning of the hearing, I raised a preliminary issue about the precise nature of the proceeding before the Court. However, it became apparent that lawyers for Agiru, in addition to the "purported reference", filed an application in the nature of an originating process on 19th October 2000 in the Supreme Court seeking procedural directions and declaratory orders that include:

(i) An order that Division 8 of the Organic Law on Provincial Governments and Local Level Governments is unconstitutional and invalid.
(ii) An order that the purported withdrawal of the powers and functions of the Southern Highlands Provincial Government by the NEC is invalid and unconstitutional.
(iii) An order that the Southern Highlands Provincial Government has full powers and functions.
(iv) An order that the appointment of Pila Niningi as Administrator of Southern Highlands Provincial Government is unconstitutional and invalid.
(v) An order prohibiting Mr Niningi from exercising or purporting to exercise any powers or functions of the office of the Administrator, or any other office in relation to the Southern Highlands Provincial Government.
(vi) An order prohibiting the State from purporting to withdraw the powers and functions and finances of the Southern Highlands Provincial Government.

I regard this matter as an application for declaratory orders that fall within the original jurisdiction of the Supreme Court under s 18 (1) of the Constitution. The Supreme Court has previously dealt with similar applications by way of originating process. See Kaseng v. Namaliu [1995] PNGLR 481 & The Hon. John Momis & The Bougainville Provincial Government In Suspension v The National Executive Council & The Right Hon. Bill Skate, The Prime Minister (SC OS 1 of 1999) (Unreported Judgment of the Supreme Court dated 26th November 1999, SC626).

On this basis, Agiru seeks declaratory orders and the State on behalf of the National Executive Council (NEC) opposes the orders. Mr. Paraka (lawyer for Governor of Enga Provincial Government) appears as friend of the Court on the constitutional issues raised in the proceeding. I should note at this juncture that there are other parties who have expressed an interest in the outcome of the constitutional issues in this case, but they have decided not to join or appear to make submissions in the proceeding. They are quite content to await the outcome of this case.

Mr. Paraka, informed the Court that he has filed an application for judicial review in the National Court regarding the withdrawal of powers of Enga Provincial Government. It raises the same constitutional issues. This is a separate proceeding pending in the National Court. After this Court gives the ruling on the constitutional issues in this case, he may proceed further in the National Court in accordance with the law determined by this Court.

The proceeding before us raises the issue: is Part III Division 8 of the Organic Law on Provincial Government and Local Level Government (New Organic Law) constitutional and valid? The parties have agreed to argue this issue only and not to deal with any other declaratory orders set out in the originating process filed on 19th October 2000.

For the purposes of the issue stated above, the parties have agreed to one fact only and that is that the NEC has withdrawn all the powers and functions of Southern Highlands Provincial Government effective as from 13th October 2000 (see National Gazette No. G127 dated 17th October 2000).

I turn now to consider the constitutional issues raised. This case is primarily concerned with withdrawal of powers and functions of Southern Highlands Provincial Government by the NEC under Part III, Division 8 of the New Organic Law.

Before proceeding to consider the issues, it is helpful to set out a brief background to the relevant provisions on provincial governments. The provincial government system was initially established by s 187A of the Constitution. Sections 187E and 187F of the Constitution (the old constitutional provisions (OCP)) provided for powers of the NEC to suspend provincial governments on a number of grounds and to re-establish the same within a prescribed period of time.

The Constitution authorised an organic law to make provision for procedures for suspending provincial governments (see s 187E (2) of the OCP). These procedures were consequently enacted in the Organic Law on Provincial Government (Old Organic Law). Under these laws, the Parliament played an important supervisory role in the suspension and re-establishment of provincial governments.

The Parliament made major changes to the Constitution and the Old Organic Law in 1995. Relevantly, s 187E has been amended by Constitutional Amendment No. 16 (CA) and significantly confines the grounds for suspension to where a provincial government "undermines or attempts to undermine the authority of the National Parliament or the national unity".

The New Organic Law has repealed the Old Organic Law and provides for procedures for suspension under Part III Division 9. It is not necessary to set out the details except to point out that the Parliament still plays a supervisory role in the suspension and re-establishment of provincial governments.

The New Organic Law has introduced a new regime under Part III Division 8 – Withdrawal of Powers, Functions and Finances of Provincial Governments. Under the new regime, the NEC may withdraw any or all of the powers and functions under s 51 (2) of the New Organic Law on grounds set out under s 51 (1) (a) or under s 51 (1) (b) of the New Organic Law. This regime is quite distinct and separate from suspension of provincial governments under Part III Division 9 of the New Organic Law.

The powers of provincial governments may be returned under the new regime at the discretion of the NEC upon recommendation of the Auditor-General, the Minister or the Special Investigating Committee under s 52 of the New Organic Law. What is clear is that the Parliament has no supervisory control over withdrawal of powers and functions and restoration of the same under this regime.

The question of law we have to determine is, whether, it is permissible for the Parliament to enact these provisions (Part III Division 8) in an organic law?

Counsel for Agiru submits that the provisions in question are not expressly authorised to be made by an organic law in accordance with s 12 (1) (a) of the Constitution, and therefore, are invalid. On the other hand, counsel for the State submits that the Constitution (s 187B, s 187C) generally authorises an organic law to make provision for powers and functions of provincial governments and the provisions (Part III Division 8) simply provide for details of the exercise of these powers. He therefore, submits that these provisions fall within the authority set out under s 12 (1) (a) of the Constitution.

Alternatively, counsel for the State submits that if s 12 (1) (a) does not authorise withdrawal of powers (Part III Division 8), these provisions should remain and take effect as ordinary Act of the Parliament under s 12 (3) of the Constitution.

Mr. Paraka supports the submissions made by counsel for Agiru.

This calls for proper interpretation of s 12 of the Constitution. Before Independence, there was no source of law known as organic law. At Independence, the Constitution created organic laws as a source of law (s 9 (b) of the Constitution). It is a superior law (s 11) but subject only to the Constitution (s 10 (a)). This special source of law was created because there was a concern for creating the Constitution into a very long document that would be overburdened with detail (see SCR No. 2 of 1982 [1982] PNGLR 214 at 222 per Kearney DCJ). The constitutional framers intended to deal with major matters in the Constitution and leave details in these matters to be further enacted in an organic law within the scope authorised by the Constitution.

This is reflected in the definition of organic law in s 12 of the Constitution. I do not share the view that this provision is merely descriptive only. This provision defines the meaning and prescribes the extent of the authority of an "organic law" to make any provision. All organic laws must fall within the framework of this provision. There are three categories in which an organic law is authorised to make a provision:

(i) in "a matter for which by way of an Organic Law is expressly authorised by the Constitution" (s 12 (1) (a)), or
(ii) in a matter "that may be made by an Act of Parliament" (s 12 (3) (a)), or
(iii) "requiring any provision to be made by an Act of Parliament that might otherwise be so made" (s 12 (3) (b))

The first of these categories is what I regard as the primary purpose for an organic law. An organic law may make provision in respect of a matter for which it is "expressly authorised by this Constitution" (s 12 (1) (a)). Such a provision must not be "inconsistent with this Constitution" (s 12 (1) (b)), and must be "expressed to be an Organic Law" (s 12 (1) (c)). Section 12 (1) (c) is not in issue in this case. Whether Part III Div. 8 is expressly authorised and is inconsistent with the Constitution have arisen for consideration in this case.

First, let me consider the meaning of s 12 (1) (a). The Supreme Court defined this provision in Kaseng v Namaliu [1995] PNGLR 481. Amet C.J. said at page 488-489:

"I am of the opinion that s 12 (1) (a) is descriptive ... of the kind of law that an Organic Law is; that it is to be a special class of law made by the Parliament, only in respect of any matter that the Constitution expressly gives authority to be made by an Organic Law. In other words, unlike an ordinary statute that Parliament has power to enact in respect of any matter, an Organic Law can only be made by Parliament if a constitutional provision expressly authorizes the making of an Organic Law in respect of a particular subject matter"

I said at page 504:

"The meaning of this provision is this: for the Parliament to make an Organic Law to make a provision in a matter, there must be a provision in the Constitution which authorizes an Organic Law to make provision for the matter. To put it differently, no Organic Law may be made by the Parliament in respect of a matter unless there is a constitutional provision in force which authorizes an Organic Law to make provision for the matter. That is the proper meaning to be given to the words ‘Organic Laws is expressly authorized by this Constitution’"

At page 517 Hinchliffe and Andrew JJ. said:

"Section 12 (1) (a) of the Constitution requires:

(1) provision for, or in respect of, a matter by way of an Organic Law

(2) be expressly authorised by this Constitution.

Thus, there is only a requirement that there be ‘provision’ for an Organic Law to deal with a matter. Since Organic Laws are themselves to spell out the detail, ‘provision’ for which is made by the Constitution, there does not have to be a detailed statement providing for, or in respect of, a matter."

Counsel for the State suggests that these passages are inconsistent. I do not find any inconsistency. The effect of these passages is this. An organic law cannot of itself make provision for any matter which is not expressly authorised to be so made by the Constitution. As to what may be the scope of such authorisation, is a matter to be determined in accordance with the expressed terms of the Constitution.

The Constitution has not expressly authorised an organic law to make provision for supervision of exercise of powers and functions by provincial governments. Instead the Constitution itself under s 187E (CA) authorises the NEC to provisionally suspend a provincial government subject to confirmation by the Parliament. This provision establishes the regime of suspension and s 187F (CA) prescribes the manner in which such a provincial government may be re-established.

The Constitution (187E (2), (3) and (5)) expressly authorise an organic law to make provision in prescribed matters. The procedure for suspension and exercise of power during suspension is provided in Part III Division 9 of the New Organic Law. This illustrates the authority expressly given to an organic law to make such provisions by s 187E (2) and (5) of the Constitution.

Section 187E (3) authorises an organic law to further define the matters set out under s 187E (1). An organic law may further define what may constitute "undermines or attempts to undermine the authority of the National Parliament or national unity" for suspending provincial governments.

What the New Organic Law has done is create a new regime and has granted new powers to the NEC in addition to the power of suspension given by s 187E of the Constitution. The inquiry is a simple one. Does the Constitution authorise an organic law to make provision for additional supervisory powers of the NEC over the exercise of powers and functions by provincial governments?

In response to this question, I cannot find any such authority in s 187E or s 187F of the Constitution. I have already made reference to s 187E (2), (3) and (5). They authorise an organic law to provide for (a) procedures for suspension (b) further define the ground for suspension and (c) empowers the NEC to exercise power during period of suspension. There is no provision in s 187E or s 187F that authorises an organic law to make provision for additional powers of NEC over the exercise of powers and functions by provincial governments. Counsel for the State cannot find any comfort from s 187E or s 187F as a basis for enacting Part III Division 8 of the New Organic Law.

The next question is, whether, any other provision of the Constitution authorises these provisions? I turn first to consider the terms of s 187B:

"Grant of Provincial Government and Local-level Government.

An Organic Law shall provide for, or make provision in respect of, the form and the manner of establishment of the Provincial Governments and the Local-level Governments."

This provision provides for an organic law to make provision in respect of "form and the manner of establishment of provincial governments. These matters are provided for in Part I Div. 3 of the New Organic Law. This provision does not authorise an organic law to make provision for additional supervisory powers of the NEC over the exercise of powers and functions by provincial governments.

The next provision to consider is s 187C:

"Constitution, functions, etc., of Provincial Governments and Local-level Governments.

(1) Subject to this Part, an Organic Law shall make provision in respect of the constitution, powers and functions of a Provincial Government or a Local-level Government.

(2) For each Provincial Government and Local-level Government, there shall be established—

(a) a mainly elective (elected directly or indirectly), legislature with such powers as are conferred by law; and

(b) an executive; and

(c) an office of head of the executive.

(3) An Organic Law shall provide for the minimum number of members for the Provincial Assemblies and Local-level Governments and the maximum number of members that may be appointed as nominated members of Provincial Assemblies and Local-level Governments.

(4) An Organic Law shall make provision for and in respect of—

(a) grants by the National Government to Provincial Governments and Local-level Governments; and

(b) the imposition and collection of taxation by Provincial Governments and Local-level Governments,

and may make other financial provisions for Provincial Governments and Local-level Governments, to an extent reasonably adequate for the performance of their functions.

(5) An Organic Law shall make provision for the devolution and delegation to each Provincial Government and Local-level Government of substantial powers of decision-making and substantial administrative powers in respect of matters of direct concern to the province and to the local-level government area.

(6) An Organic Law shall make provision in respect of the legislative powers of Provincial Governments and Local-level Governments.

(7) A question of the adequacy of provision made under Subsection (3), (4), (5) or (6) is non-justiciable.

(8) Elections to a Local-level Government shall be conducted, in accordance with an Organic Law, by the Electoral Commission."

Section 187C (1) authorizes an organic law to make provision for constitution, powers and functions of provincial governments. All these matters are provided for in the New Organic Law (see Part II Div. 1 & Part III Div. 3). Section 187C does not deal with supervisory powers of the NEC over exercise of powers and functions of provincial governments. This issue is specifically addressed by s 187E.

Section 187C (2) (3) and (4) do not touch on the issue.

Counsel for the State relies on s 187C (5) which provide for an organic law to make provision for devolution and delegation of substantial powers of decision-making and substantial administrative powers in respect of matters of direct concern to the province. He submits that this provision sufficiently permits the provisions on the withdrawal of powers. With respect, there is no substance in this submission. Devolution of power to provincial governments involves transfer or delegation of decision-making powers to provincial governments. Withdrawal of powers can hardly be described as devolution of power to provincial governments. I would dismiss this submission.

Section 187C (6), (7) and (8) do not deal with supervisory powers of the NEC over exercise of power by provincial governments

Sections 187D, 187G, 187H, 187I, 187J and 187J of the Constitution are not applicable to the issue.

Counsel has not drawn my attention to any other provision of the Constitution which authorizes an organic law to make provision for additional supervisory powers of the NEC over the exercise of powers and functions by provincial governments. I can find none.

I find that the provisions enacted in Part III Division 8 of the New Organic Law have been enacted outside the scope permitted by s 12 (1) (a) of the Constitution and therefore invalid.

Are the provisions of Part III Div. 8 inconsistent with the Constitution? (see s 12 (1) (b)). It follows from the conclusion I haven reached above, that s 187E (1) of the Constitution exhaustively defines the supervisory powers of the NEC over exercise of powers and functions of provincial governments. By necessary implication, no organic law may define the supervisory powers of the NEC in a manner contrary to or inconsistent with powers of supervision provided for under s 187E and s 187F of the Constitution.

Withdrawal of powers is no different to a suspension in one respect, namely, that in either case, a provincial government is unable to exercise any power. However, withdrawal of powers under Part III Div. 8 departs from important requirements set out under s 187E.

A suspension of a provincial government is provisional and is subject to confirmation by an absolute majority vote of the Parliament (s 187E (1)).

In addition, s 187E (6) requires the Minister responsible to:

(a) table a report in the Parliament on the reasons and circumstances of suspension.

(b) report at each meeting of the Parliament during the period of suspension on the measures taken to re-establish the provincial government.

Withdrawal of powers under Part III Div. 8 of the New Organic Law is not made subject to Parliament for confirmation and there is no provision for tabling of a report to the Parliament on the reasons and circumstances for withdrawal. To this extent, it is inconsistent with s 187E (1) and (6) of the Constitution.

Moreover, Part III Div. 8 is also inconsistent with s 187F in that there is no requirement for return of powers and functions to a provincial government within a prescribed period of time. Return of powers and functions is not made subject to the scrutiny of the Parliament.

One of the fundamental principles of our constitutional democracy is the need for the NEC to be responsible and accountable to the people, through the Parliament (see Haiveta v Wingti (No. 3) [1994] PNGLR 197 at p 210 per Amet CJ). The requirement for supervision by Parliament under s 187E and 187F is consistent with this principle. The investigations that may be carried out by the Auditor-General, the Minister or the Special Investigating Committee in respect of the alleged grounds, under Part III Div. 8 of the New Organic Law, fall short of the need for accountability to the people, through the Parliament.

Withdrawal of powers must measure up to the requirements of constitutional democracy expressly stated in s 187E and s 187F of the Constitution. Part III Div. 8 of the New Organic Law is inconsistent for the reasons I have set out and therefore, invalid (see s 12 (1) (b) of the Constitution).

Alternatively, counsel for the State argues that if Part III Division 8 is not authorised by the Constitution according to s 12 (1) (a), these provisions should remain in force and take effect as an Act of the Parliament under s 12 (3) of the Constitution. It is necessary to consider s 12 (3) (a) first:

"Nothing in this section prevents an Organic Law from-

(a) making any provision that might be made by an Act of the Parliament; or"

This provision permits an organic law to make a provision "that may be made by an Act of Parliament". If the Constitution does not expressly authorise a matter to be made by an organic law, an organic law may nevertheless make a provision in the matter if that matter is authorised by law to be made by an Act of Parliament. The relevant inquiry here is; can an Act of Parliament make provision for withdrawal of powers and functions from provincial government? If the answer to this inquiry is positive, an organic law may make provision in such a matter.

An example may clarify the meaning of this provision. The right to vote and stand for elective public office is guaranteed to citizens by s 50 (1) of the Constitution. Section 50 (2) provides that a "law" may regulate the exercise of these rights. This provision permits an Act of Parliament to regulate the exercise of the right to vote and stand for public elective office. Kearney DCJ in the Supreme Court Reference No. 2 of 1982 [1982] PNGLR 214 at page 222-223 said:

"I think that the meaning of the Constitution, s 12 (3) (a), is crystal clear.....Section 86 (c) of the Organic Law is I think properly categorised, in terms of the Constitution, s 12 (3) (a), as a ‘provision that might be made by an Act of the Parliament’. This is because s 86 (c) is to regulate, in a particular way, the special right is provided for in the Constitution, s 50, and s 50 (2) allows that right to be regulated by a ‘law’ (which term includes an ordinary Act) possessing certain special characteristics...So the right regulated by s 86 (c) of the Organic Law could have been regulated by an ordinary Act, with special characteristics mentioned in the Constitution, s 50 (2). However, the Constitution s 12 (3), makes it quite clear that:

(a) it is quite in order to regulate the Constitution, s 50 (1) right by an Organic Law; and that, if that course be adopted, as here;..."

Section 86 (c) of the Organic Law was authorized to regulate the exercise of the right to vote because that was a matter which could be provided for by an Act of Parliament under s 50 (2) of the Constitution.

The question in the present case is, whether provision for withdrawal of powers of provincial governments may be made by an Act of Parliament? The answer to this inquiry is clearly negative. The Constitution, s 187E itself has made provision for supervisory powers of the NEC over the exercise of powers and functions of provincial governments. The Constitution has not authorized an Act of Parliament to make provisions for those powers. It follows from this that the New Organic Law is not authorized to enact Part III Div. 8 according to s 12 (3) (a) of the Constitution.

There is a misconception by some that under s 12 (3) (a), the Parliament may convert a provision of an organic law to take effect as an ordinary Act of Parliament. This misconception is demonstrated in the enactment of s (1)(1) of Organic Law on National Elections (the Old Organic Law) and the Organic Law (Amendment) Act 1981 (46 of 1981). Section (1)(1) of the Organic Law on National Elections (the Old) listed several provisions and stated "..are intended to take effect, as provided for by s 12 (3) (a) of the Constitution as an Act of the Parliament." On this premise, the Parliament passed the Organic Law (amendment) Act in 1981 to amend s 86 (c) of the Organic Law. These provisions were considered in SCR No. 2 of 1982 [1982] PNGLR 214. Kearney DCJ at page 223 said:

"What the Constitution, s 12 (3) (a), does not do, or purport to do, is to change the nature of s 86 (c), which remains an Organic Law. Nor does s 12 (3) (a) affect or purport to affect, the impact of the Constitution, 12 (2); so s 86 (c) can only be amended by an Organic Law. But because of the Constitution, s 12 (3) (a), s 86 (c) is an Organic Law which may be altered by an Organic Law carried by a simple majority vote."

Kearney DCJ could not "square" the meaning of s (1)(1) of the Old Organic Law on National Elections with s 12 (3) (a) of the Constitution. Clearly, this was a misconception on the part of the Parliament in enacting these provisions. The submission by counsel for the State with respect is premised on the same misconception and must be dismissed.

Even if I was wrong on this point and the provisions remain and take effect as an Act of Parliament, the provisions would be inconsistent with the requirement for accountability to the Parliament in s 187E and s 187F of the Constitution (see s 12 (1) (b) of the Constitution). I have already dealt with the inconsistency of these provisions earlier in my judgment.

I can deal with s 12 (3) (b) of the Constitution very briefly. It provides that an organic law may authorise or require any provision to be made by an Act of Parliament "that might otherwise be so made". This provision does not authorise an organic law to make a provision in a matter. It may require a matter to be provided by an Act of Parliament "that might otherwise be so made". The practical result of this provision is that an Act of Parliament may be passed in respect of a matter that falls within this provision. This provision is not applicable in the present case. There is no provision in The Constitution which requires that powers of NEC over Provincial Governments may be provided in an Act of Parliament and there is no such Act enacted in the present case. It is therefore not necessary to fully consider the provision.

It is apparent from the provisions I have analyzed that while the Parliament has unlimited powers of law-making, this power is "subject to the Constitution" (see s 99 (2) (a) and s 100 (1)). The Constitution created a source of law known as organic law and determines the limit of law-making power of the Parliament. In the final analysis, the Parliament can only enact an organic law within the terms provided under s 12 of the Constitution.

Consequently, I find that Part III Division 8 of the New Organic Law do not come within the bounds of authority set out in s 12 of the Constitution and therefore unconstitutional.

Before I leave this case, I wish to comment on a submission by counsel for the State, namely, that the interpretation I have adopted, "would not allow the National Government to ensure that all these governments are held in check and accountable. Management in public authorities is poor specifically at provincial and local level and it is necessary that there exists latitude for the National Government to protect national resources against mismanagement and other abuses."

In interpreting the Constitutional provisions in the present case, I have not ignored the need for accountability of exercise of power and corruption by provincial governments. I have been mindful of this consideration.

Indeed, the regime of suspension of provincial governments (under s 187E and s 187F) was intended to enable the NEC to check and make provincial governments accountable in the exercise of their powers and also to check any abuse or corruption by provincial governments. Section s 187E (1) in its original form stipulated the following grounds upon which a provincial government could be suspended:

(a) there is wide-spread corruption in the administration of the province; or
(b) there has been gross mis-management of the financial affairs of the province; or
(c) there has been a break-down in the administration of the province; or
(d) there has been deliberate and persistent frustration of, or failure to comply with, lawful directions of the National Government.
(e) The provincial government has deliberately and persistently disobeyed applicable laws, including the National Constitution, an Organic law, the Provincial Constitution or any national legislation applicable in the province.

The Constitution (s 187E of (OCP) expressly addressed all these grounds in the regime for suspension. This was the law until the Parliament in its wisdom abolished these grounds in 1995 and confined suspension to narrow and limited grounds, namely, where a provincial government undermines or attempts to undermine the authority of the National Parliament or the national unity.

In the last 26 years of Independence, the NEC has suspended several provincial governments on these grounds under the repealed provisions. These grounds are no longer available under s 187E (as amended). The practical result of the view I have adopted is that the NEC will have no power to withdraw any powers and functions from provincial governments on grounds set out under s 51 (1) (a) and (b) of the New Organic Law. This is the direct result of a deliberate legislative act by the Parliament. The duty of this Court is to interpret and apply the law as it finds it.

It would be wrong in principle to uphold Part III Div. 8 simply on the basis that there may be a gap. To do so in this way is to choose to ignore the clear dictates of the law and decide issues on considerations other than on sound principles of law.

It is not appropriate to fill the gap by judicial act in the present case (see Schedule 2.4 of the Constitution & Wik Kor v The State [1983] PNGLR 24). It is a matter appropriate for the Parliament to consider and amend s 187E to restore the grounds abolished by Constitutional Amendment No. 16 to make provincial governments accountable.

However, the interpretation I have adopted does not in any way prevent the Auditor General, the Minister or the NEC from referring any person including members of a provincial government to the Ombudsman Commission, the Public Prosecutor, the Police or any other relevant authority for further investigation and action in relation to any of the matters in s 51(a) & (b). See s 51(3) of the New Organic Law.

For all the reasons I have set out above, I declare Part III Div. 8 of the New Organic Law unconstitutional and invalid.

The parties may now proceed to deal with consequential orders and the balance of the orders sought in the originating process in the light of the ruling of the Court.

Los J: I agree with the reasons for decision by the Chief Justice and I have nothing further to add.

Salika J: I have read the drafts of the Deputy Chief Justice and Sevua, J and agree with them. I have nothing to add of my own.

Sevua J: By a notice published in the National Gazette No. G127 on 17th October 2000, the National Executive Council withdrew the powers and functions of the Southern Highlands Provincial Government, and further withdrew and withheld all the finances of and due to the Southern Highlands Provincial Government with effect from 13th October, 2000.

Hon. Anderson Agiru, MP, the Governor of Southern Highlands Province having been affected by that decision has now referred this matter to the Supreme Court pursuant to s.18(1) of the Constitution.

The question referred is this:-

"(a) Is Division 8 of the Organic Law on Provincial Governments and Local-Level Governments constitutional and valid?

(b) If the answer to question (a) is NO, should the orders or any of them sought in the application filed herein be granted."

The National Executive Council purportedly acted in accordance with s.51(2) of the Organic Law on Provincial Governments and Local-Level Governments (the Organic Law). That provision states:

"(2) Where a Provincial Government or a Local-Level Government refuses to comply with a direction issued under subsection (1), the National Executive Council may –

(a) withdraw all or any of the powers and functions of; or

(b) withdraw and withhold all or any finances to; or

(c) withdraw all or any of the powers and functions of, and withdraw and withhold all or any finances to

the Provincial Government or Local-Level Government, as the case may be."

I would pose the question in this manner. "Are the powers of the National Executive Council under s.51(2) of the Organic Law, to withdraw all or any of the powers and functions of, or withdraw and withhold all or any of the finances to a Provincial Government authorised by the Constitution?

Organic Laws are governed by s.12 of the Constitution, which provides:

"(1) For the purpose of this Constitution, an Organic Law is a law made by the Parliament that is –

(a) for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by the Constitution;" (my emphasis)

In my view, pertinent to the issue raised here, is the meaning of s.12(1)(a) Constitution. Reference has been made to the Supreme Court decision in Isidore Kaseng v. Rabbie Namaliu and The Independent State of Papua New Guinea [1995] PNGLR 481. Both the Chief Justice and Deputy Chief Justice who are members of this Court were members of that Court, and they had expressed their opinions on the meaning ascribed to s.12(1)(a) of the Constitution.

At pages 488 – 489, the Chief Justice said:

"I am of the opinion that s.12(1)(a) is descriptive only of the kind of law that an Organic Law is; that is, that it is to be a special class of law made by the made by the Parliament, only in respect of any matter that the Constitution expressly gives authority to be made by an Organic Law. In other words, unlike an ordinary statute that the Parliament has powers to enact in respect of any manner, an Organic Law can only be made by Parliament if a Constitutional provision expressly authorises the making of an Organic Law in respect of a particular subject matter."

At page 504, the Deputy Chief Justice said:

"The meaning of this provision is this: for the Parliament to make an Organic Law to make provisions in a matter, there must be a provision in the Constitution which authorises an Organic Law to make provision for that matter. To put it differently, no Organic Law may be made by the Parliament in respect of a matter unless there is a Constitutional provision in force which authorises an Organic Law to make provisions for the matter. That is the proper meaning to be given to the words "Organic Law is expressly authorised by this Constitution."

It is my view that although the Chief Justice and Deputy Chief Justice defined the meaning of s.12(1)(a) in slightly different terminologies, the conclusion is the same and I agree with the meaning they ascribed and I adopt them in the present reference.

Having so agreed, it is my opinion that, the National Executive Council’s power to withdraw all or any of the powers and functions of; or withdraw and withhold all, or any finances to a Provincial Government by virtue of s.51(2) of the Organic Law must be authorised by the Constitution. That is to say, the power vested in the National Executive Council by virtue of s.51(2) of the Organic Law must be expressly provided for in the Constitution in pursuance of s.12(1)(a) of the Constitution. In other words, if Constitution s.12(1)(a) does not expressly authorise the withdrawal of powers, functions and finances etc, of a Provincial Government in the Organic Law, it would be unconstitutional for the National Executive Council to withdraw the powers and functions of a Provincial Government and or withhold its finances.

Part VIA of the Constitution deals with Provincial Governments and Local-Level Governments. Section 187E provides for the suspension of Provincial Governments and Local - Level Governments. Subsection (1) prescribes the circumstances in which the National Executive Council may provisionally suspend a Provincial Government. Subsection (2) is very important here. It states,

"An Organic Law may make provisions for and in respect of the procedures to be followed in the exercise of the powers under Subsection (1)."

Division 9 of the Organic Law, provides the procedure or machinery in which the suspension of a Provincial Government can be effected.

I consider that the suspension of a Provincial Government under Division 9 of the Organic Law is authorised by s.187E of the Constitution. By way of analogy, I cannot say the same of the withdrawal of powers, functions and finances of a Provincial Government. There is no provision in Part VIA of the Constitution which authorises the National Executive Council to withdraw powers, functions and finances of a Provincial Government, under the Organic Law. Whilst the Organic Law under Division 9 provides for the powers of National Executive Council to withdraw powers, functions and finances of and to a Provincial Government, such powers are not authorised under Part VIA of the Constitution. It follows therefore, in my view, that Division 8 of the Organic Law has no Constitutional basis.

I find therefore that Part III Division 8 of the Organic Law was not enacted in accordance with s.12(1)(a) of the Constitution therefore those provisions of the Organic Law are not authorized by the Constitution thus invalid.

I have read the judgment of the Deputy Chief Justice and I agree with his conclusion for the reasons he has stated.

The formal order of the Court is: Part III Division 8 of the Organic Law on Provincial Governments and Local-Level Governments is unconstitutional and invalid.
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Lawyers for Agiru : Maladinas

Lawyers for the State : Nonggor & Associates