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Southern Highlands Provincial Government v Somare, Chairman of the National Executive Council [2007] PGSC 2; SC854 (1 March 2007)

SC854


PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]


(1) SCOS NO 3 OF 2006


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


BETWEEN:


SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
First Plaintiff/Applicant


AND:


HON. NIPA HAMI YAWARI – PROVINCIAL GOVERNOR
OF SOUTHERN HIGHLANDS PROVINCE
Second Plaintiff/Applicant


AND:


SIR MICHAEL T. SOMARE IN HIS CAPACITY AS CHAIRMAN AND FOR AND ON BEHALF OF MEMBERS OF THE NATIONAL EXECUTIVE COUNCIL
First Defendant/Respondent


AND:


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant/Respondent


AND:


GARI BAKI AS CONTROLLER FOR EMERGENCY
IN THE SOUTHERN HIGHLANDS PROVINCE
Third Defendant/Respondent


AND:


JEFFERY NAPE AS SPEAKER FOR NATIONAL PARLIAMENT
Fourth Defendant/Respondent


AND:


SAM ABAL AS MINISTER FOR PROVINCIAL AFFAIRS
Fifth Defendant/Respondent


AND:


WILLIAM POWI AS ASSISTANT CONTROLLER & ADMINISTRATOR OF SOUTHERN HIGHLANDS PROVINCIAL GOVERNMENT
Sixth Defendant/Respondent


AND:


ALLAN MARAT, MP AS CHAIRMAN OF EMERGENCY COMMITTEE
Seventh Defendant/Respondent


_____________________________________________________________


(2) SCOS NO 4 OF 2006


BETWEEN:


SIR MATIABE YUWI, YAUNGTINE KOROMBA, YAWALE KULU, MATHEW YAGO, MOMEI PONGIAL, PAUL POTO, PAKA KILI, NELSON KIKIRI, JACOB IKI AND PUNDIA KANGE
Plaintiffs/Applicant


AND:


SIR MICHAEL T. SOMARE, CHAIRMAN,
NATIONAL EXECUTIVE COUNCIL
First Defendant/Respondent


AND:


ALLAN MARAT, MP, CHAIRMAN OF EMERGENCY COMMITTEE
Second Defendant/Respondent


AND:


JEFFERY NAPE, SPEAKER, NATIONAL PARLIAMENT
Third Defendant/Respondent


AND:


GARI BAKI, CONTROLLER OF STATE OF EMERGENCY
IN THE SOUTHERN HIGHLANDS PROVINCE
Fourth Defendant/Respondent


AND:


FRED TOMO, ATTORNEY GENERAL
Fifth Defendant/Respondent


AND:


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Sixth Defendant/Respondent


Waigani: Kapi CJ, Injia DCJ, Los, Salika & Sakora, JJ.
2006: 27 November, 5 December
2007: 1 March


CONSTITUTIONAL LAW – Declaration of state of emergency in Southern Highlands Province by Head of State acting on advice of National Executive Council under s 228 (1) of the Constitution –Advice given after National Executive Council formed opinion that there existed a situation of "emergency" under s 226(c) of the Constitution - Criminal activities brought about by breakdown in law and order maladministration and corruption in provincial government as grounds for declaration – Meaning of emergency under s 226( c) – Whether declaration was valid or justified.


On 1 August 2006 the National Executive Council formed an opinion under s 228 (1) of the Constitution that a situation of emergency under s 226(c) existed in the Southern Highlands Province and that it was necessary to declare a state of emergency. The grounds given were that:


(a) unauthorised people and ghost names appeared on the Department of Southern Highlands payroll;

(b) unauthorised people breaking into State-owned houses and living in them;

(c) removing and illegally using State-owned vehicles;

(d) public servants not working but collecting salaries;

(e) illegal use of firearms.


The National Executive Council then advised the Head of State to declare a state of emergency in the province which His Excellency did under s 228 (1) of the Constitution. The National Executive Council then suspended the Southern Highlands Provincial government under s187E (4) of the Constitution. The National Parliament extended the declaration several times.


Held:


1) "Emergency" as defined in s 226 (c) of the Constitution includes action taken by a person(s) which creates a situation of civil unrest, civil disturbance or civil disorder which results in or threatens collapse of civil government, endangers public safety and deprives people of supplies and services essential to life. Section 226(c) does not include ordinary criminal or illegal activities resulting from break down of law and order, maladministration and corruption in provincial government. Such activities should be dealt with using ordinary laws and law enforcement agencies.


2) The declaration of state of emergency in the Southern Highlands Province on the grounds given was not necessary and therefore was contrary to s 226( c) and s 228 (1) of the Constitution. The declaration was invalid.


3) The suspension of the Southern Highlands Provincial government under s 187E(4) of the Constitution which followed the said declaration was also invalid and it is reinstated.


4) The plaintiffs have standing to bring the proceedings under s 18 of the Constitution: Somare Case [1981] PNGLR 265 applied.


5) The Supreme Court has jurisdiction to determine constitutional issues as to the interpretation and application of s 226 (c) and s 228 (1) of the Constitution: Somare Case [1981] PNGLR 265 applied.


6) The issue of whether the National Executive Council was justified in reaching its opinion or decision under s 228 (1) that there existed a state of emergency under s 226 (c) of the Constitution, in the circumstances of a particular case, is justiciable: Haiveta v Wingti (No 2) [1994] PNGLR 197, Kila Wari & Another v Gabriel Ramoi and Another [1986] PNGLR 112 applied.


7) The onus is on the plaintiffs to establish a prima facie case of infringement of the constitutional provision and the onus shifts to the State to satisfy the Court that the action taken was in compliance with the provision: SCR No 2 of 1982 [1982] PNGLR 214 applied.


8) The onus is on the plaintiffs and equally so on the State to produce before the Court evidence of all relevant material, reports and information which were considered by the National Executive Council in reaching its opinion or decision under s 228 (1) of the Constitution.


Cases Cited:


PNG Cases:


Haiveta v Wingti (No 3) [1994] PNGLR 215
Independent State of Papua New Guinea v Phillip Kapal [1987] PNGLR 417
Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122
Kila Wari & Ors v Gabriel Ramoi & Anor [1986] PNGLR 112
Re Motor Traffic Act [1982] PNGLR 122
Somare Case [1981] PNGLR 265
SCR No.2 of 1982 Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214
Special Reference on s10 Re Calling of Parliament, SC628


Overseas Cases:


Bhagat Singh & Ors v The King Emperor A.I.R 1931 PC 111
Farooq Ahamad Khan Leghari v Federation of Pakistan (1999) P.C.D (SC) 57
Gouriet v Union of Post Office Workers [1977] UKHL 5; [1977] 3 WLR 300
King Emperor v Benasi Lal Sarma & Ors (1943) AC 14
Ningkan v Government of Malaysia (1991) AC 379
SR Boumai v Union of India (1994) A.I.R (SC) 1918
Stephen Kalong Ningkan v Government of Malaysia [1968] 2 MLJ 238


PNG Legislation Cited:


Attorney General Act, s 7 (c)
Organic Law on Provincial & Local Level Government, s 10 (3)


Constitution:


Schedule 1.6
Schedule 2.3
s 18 (1) (2), s 19, s 86 (4), s 99 (1), s 230, s 134, s 149, s 187E(4), s 226 ( c), s 228(1), s 230, s 239 (3), s 339


Overseas Legislations Cited:


Constitution of India, Article 352
Constitution of Pakistan, Article 231 (1)
Emerging Powers Act 1920 (UK)
Federal Constitution of Malaysia, Article 150
Rules of the Supreme Court (UK)


International Covenants:


International Covenant on Civil & Political Rights (ICCPR), Article 4 (c)
Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights
European Convention on Human Rights, Article 15
Inter- American Convention on Human Rights


Text Books:


Constitutional Planning Committee, CPC Report, Ch 5, Pt 5
Deklin APW, ‘Control of the Executive’, Pacific Constitutions
Dictionary of Government and Politics, Peter Collins Publishing, 1988
Goldring J, The Constitution of Papua New Guinea, LBC, Sydney, 1978
Lee H P, Emerging Powers, LBC, Sydney, 1984
Raz J, The Rule of Law and its Virtue (1977), 93 LQR
Sakora B B, ‘Judicial Law Making’, in Peter Sack (ed), Pacific Constitutions, RSSS, Australian National University, Canberra, 1982


Wade and Phillips, Constitutional Law, 7th ed, Longman, 1965
Yash Ghai & Jill Cottrell, Heads of State in the Pacific: A Legal & Constitutional Analysis, Institute of Pacific Studies, University of South Pacific, 1990


Counsel:


M. Tamutai, for the Plaintiff SHPG and H. Yawari
P. Ame, for various Council Presidents
J. Murray, for Speaker of National Parliament
D. Lambu, for the State & NEC
K. Naru, for 3rd, 4th, 5th & 7th Resp. in SC/OS 3 OF 2006 & for 2nd, 3rd & 4th Respondents in SC/OS 4 OF 2006
P. Parkop, for Sir Matiabe Yuwi & Ors


1 March, 2007


1. KAPI CJ: This is an originating summons filed in accordance with s 18 (1) of the Constitution. Initially, the Southern Highlands Provincial Government and the Hon Nipa Hami Yawari, Governor for Southern Highlands Province filed SC OS 3 of 2006 and Sir Matiabe Yuwi & 8 others filed SC OS 4 of 2006 separately. The two actions are identical in the nature of relief sought and the issues raised and so they have been consolidated into one action. It is the consolidated action which has come before the Court for determination.


2. This cause of action has been prompted by the decision of the National Executive Council (NEC) when it advised the Head of State to declare a state of emergency for the Southern Highlands Province on 1 August 2006 under s 228(1) of the Constitution. The National Parliament has since extended the state of emergency three times under s 239 of the Constitution.


3. The cause of action is primarily concerned with whether a state of emergency existed to justify the declaration of state of emergency. A state of emergency can only be declared by the Head of State upon advice of NEC under s 228 (1) of the Constitution. The plaintiffs submit that if the circumstances did not exist for a state of emergency, the declaration and extension of the state of emergency is invalid


4. Counsel for the respondents raised two preliminary issues:


(1) Whether all the parties have a legal standing to be heard on these proceedings;

(2) whether this court has jurisdiction to determine whether a situation of emergency as defined in s 226 of the Constitution existed or about to come into being at the time the National Executive Council advised the Head of State to declare a National Emergency in the Southern Highlands Province.


Jurisdiction of the Supreme Court


5. It is appropriate to deal first with the threshold issue of jurisdiction of the Court. While the respondents questioned the jurisdiction of this Court during the directions hearing, we understand that counsel for the respondents do not press this issue.


6. There is no question that the issues raised in this action are constitutional law issues. The issues raised involve the proper interpretation of what is an "emergency" under s 226 of the Constitution and whether circumstances in the Southern Highlands Province amount to an emergency situation to justify a declaration of national emergency under s 228 (1) of the Constitution? Section 18 (1) of the Constitution provides:


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


7. Unless a constitutional law gives jurisdiction to any other Court or tribunal to deal with a question of interpretation or application of a constitutional law, the Supreme Court has original jurisdiction to deal with such matters. In Somare Case [1981] PNGLR 265 where a question of interpretation and application of constitutional law arose, the National Court referred the question to the Supreme Court: whether the constitutional issues raised were matters solely for the Supreme Court? The Court unanimously concluded that the Supreme Court has jurisdiction to the exclusion of other courts to deal with such matters.


8. In the present case, the constitutional issues raised are not given to any other Court or tribunal to deal with. This Court has exclusive jurisdiction to deal with the constitutional issues.


Locus Standi


9. The issue of standing in constitutional law matters was decided in Somare Case [1981] PNGLR 265. In that case, the originating process was commenced in the National Court and the constitutional issues were referred to the Supreme Court under s 18 (2) of the Constitution. As the matter was before the Supreme Court, the Court regarded the matter as having been commenced in the Supreme Court.


10. The Court by a majority of three formulated the principle of underlying law that Somare as a citizen had standing.


11. Counsel for the Respondents submit that the underlying law as declared in Somare Case (supra) has been abolished by s 7 (c) of the Attorney-Generals Act:


"7. Duties, functions and responsibilities of the Attorney-General.

The duties, functions and responsibilities of the Attorney-General are—

(a)

(b) ...

(c) to exercise the functions vested in the Office of Attorney-General by virtue of the underlying law including the bringing of proceedings known as relator proceedings; and

(d) ...

(e) .."


12. He submits that in public interest cases, only the Attorney-General may commence a suit in a relator proceedings. He further submits that in this matter, there is no suggestion that the plaintiffs in this matter have sought the consent of the Attorney-General. Consequently, he submits that the plaintiffs have no standing.


13. I do not accept submission by counsel for the Respondents for the following reasons. The principle enunciated in Somare Case, was a development of the underlying law under Schedule 2.3 of the Constitution. In this process, the Court did not apply the common law principles. The Court developed the principle that in constitutional cases, a citizen has standing to bring such an action.


14. Section 7 (c) of the Attorney-Generals Act does not change the law. It simply restates the underlying law with regard to the role and functions of the Attorney-General by reference "...by virtue of the underlying law including the relator proceedings." This means that the Attorney-General could act in this matter as permitted by the common law.


15. However, the Somare Case went further and developed a principle of the underlying law. There is no constitutional provision which determines the issue of standing in a cause of action brought under s 18 (1) of the Constitution. The Court developed a new principle, namely, a citizen may have standing to bring an action involving a constitutional issue.


16. In The Ombudsman Commission, Íla Geno, Bernard Narokobi v National Parliament, Clerk of Parliament, Speaker of the National Parliament, Sir Albert Kipalan, NEC and Sir Michael Somare (SCOS 2 of 2003) (Unreported Judgment of the Supreme Court dated 21st November 2003, SC 721) the matter was originally filed as a Special Reference under s 19 of the Constitution. However, the reference was adjourned and an originating summons was filed under s 18 (1) of the Constitution. In considering the issue of standing, the Supreme Court adopted the principle in Somare Case. This is now established principle that where a question of interpretation or application of a constitutional law arises under s 18 (1) of the Constitution, a citizen has standing. In the present case, all plaintiffs would have standing.


17. Consequently, I dismiss the preliminary issue raised by the Respondents.


Do the circumstances exist for a state of emergency?


18. Emergency Powers are regulated by Part X of the Constitution. An "emergency" is defined by s 226 of the Constitution and:


"includes, without limiting the generality of the expression—

(a) imminent danger of war between Papua New Guinea and another country, or of warlike operations threatening national security; and

(b) an earthquake, volcanic eruption, storm, tempest, flood, fire or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and

(c) action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life;"


19. This definition includes three instances or circumstances which may be regarded as "emergency". The first two categories (a) and (b) are of distinct nature and do not require construction for the present purposes. They are not applicable in the present case.


20. Reliance is placed on s 226 (c) of the Constitution. On one reading of this provision, a situation may be created by the actions of a person or group of persons and such action "is of such a nature, and so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life;"


21. This provision may cover actions of a person or persons who may for example introduce dangerous or poisonous substance in drinking water or in the environment of such a nature and so extensive a scale as to be likely to endanger the public safety or deprive the community or substantive portion of the community of supplies or services essential to life. Such actions could be taken by terrorists. No action of a single person or group of persons has been alleged in the present case.


22. It is apparent from the definition of "emergency" that it is not confined to these three categories of cases. The word "emergency" is to be given a much wider meaning. This is apparent from the definition of "emergency". It is not appropriate to give an exhaustive definition of circumstances that would result in an emergency. There may be other circumstances which may be regarded as creating an emergency. However, the circumstances which may be regarded as creating an "emergency" should be of such a scale and have the characteristics ultimately of threatening public safety, security, health and welfare of human lives and the environment.


23. I understand that the circumstances relied upon in this case relate to breakdown of law and order, maladministration, corruption and the like. All of these circumstances on their own or combined together could result in breakdown of civil government and ultimately could affect delivery of essential services and threatened the public safety, security, health and welfare of the people.


24. Such circumstances must be of such a nature and to such an extent that would result in an emergency. What must be born in mind in dealing with breakdown of civil government is that there are ordinary laws in existence to deal with such matters. They should be dealt with under those laws and governance. The circumstances must be of such a nature and to such extent so as to require corrective or preventive action outside the normal laws or governance to contain the situation.


Onus of Proof


25. This action challenges the NEC to justify the declaration of emergency. The issue of onus of proof was not argued by all parties and the reason this was not argued is that counsel for the respondents accepted the onus to justify the declaration of emergency. The nature of the declaration is such that only the NEC could justify the declaration of emergency.


26. In SCR No. 2 of 1982; Re Organic Law on National Elections (Amendment) Act 1981 [1982] PNGLR 214 at 221, onus of proof on factual matters was considered and Kidu CJ held:


"It seems to me that the question of who bears the onus of proof does not arise in the present reference. I say this for the simple reason that, in relation to factual materials relevant for purposes of Question 2 & 3, the referring authority has borne the burden "voluntarily" so to speak and rightly so. No adversary or opponent was available to do so anyway. Both the learned Principal Legal Adviser in person and the Parliamentary Counsel, through Mr. Sam, merely appeared to assist the Court."


27. The referring authority voluntarily led evidence on the relevant factual matters. Kearney DCJ expressed the view at p.228:


"I might briefly deal here with the question of the onus of proof. In general, the constitutional validity of an Act is assumed. It is questionable, I think, whether that assumption should be made, when the Act under constitutional attack depends, as here, for its validity upon some regulation or limitation of a Constitutional right. Be that as it may, in Reference proceedings it seems to me that the nature of those proceedings is such that the referring authority must in general bear the onus of proving the unconstitutionality it queries, for there is not necessarily any adverse party. It is open whether the nature of the regulating law in s.50 (2) is such that the onus of proof is as laid down in s.38 (3), when the issue is whether s.50 (2) is met."


28. I expressed the view at p.237:


"The Onus of proof


"Mr. Donigi submitted that the State has the onus of proof that a law passed by the Parliament is within the limitation provided by s.50, sub-s.2 of the Constitution. He submitted this by way of analogy from s. (38) 3 of the Constitution. Mr. Maino on the other hand submitted that the onus of proving the unconstitutionality of an Act is on the party alleging that it is unconstitutional. He relied on the opinion of three Judges in the Vanuatu Case SCR 4 of 1980 (No.2) Unreported judgment SC220


"The right to stand for elective public office comes under the provisions which deal with qualified rights. Under these provisions, there are number of ways a right may be qualified. A right may be regulated or restricted by a law that makes "reasonable provision" — See s.44 (a) and s.47 (a) of the Constitution. Or a law may regulate or restrict a right by imposing "reasonable restriction" — See s.46 (1) (a) and s.47 (b) of the Constitution. Or a law may restrict a right which is "reasonably necessary" — See s.53, sub-s.5 (f). Or a law may regulate or restrict a right which complies with all the requirements of s.38 of the Constitution.


"Where a law is required to comply with the provisions of s.38, it must comply with all the requirements set out under s.38. One of the requirements under s.38 of the Constitution and perhaps the most important one is that — where a law which regulates or restricts or makes reasonable provisions etc., such laws "to the extent that the law is reasonably justifiable in a democratic society having a proper regard for the rights and dignity of mankind".


"In my view it would be inconsistent with s.38, sub-s.3 of the Constitution to suggest a different onus of proof on the requirement "reasonably justifiable in a democratic society which has regard for the right and dignity of mankind" wherever it appears in the same sub-division. Whether the requirement of "reasonably justifiable in a democratic society" appears under s.38 with other requirements or by itself as required under s.50, sub-s.2 of the Constitution, in my opinion, the onus would be the same. Wherever this phrase has been used in this sub-division no provision on the question of onus is included. The answer in my view is quite simple; this is adequately covered under s.38 (3) of the Constitution. This construction makes sense because all these provisions appear under the same sub-division. In my view, this construction is in line with the intention of the Constitutional Planning Committee. When the Constitutional Planning Committee made its recommendations on the right to stand for election to public office, it recommended that this right may be subject to reasonably restrictions. By Recommendation 13, sub-s.3, the Committee recommended:


"the burden of proving that a restriction referred to in Clause 1 above, is a reasonable restriction lies upon the person asserting that the restriction is reasonable". (See CPC Report, p.5/1/28 to p.5/1/29, Recommendation 13).


"As I have explained before the question of onus does not appear under s.50, sub-s.2 of the Constitution because this is adequately dealt with under s.38, sub-s.3. Our Constitution in this regard has made plain what has been a conflict of views by the Justices in India regarding the question of onus relating to the restrictions on the fundamental rights. It appears that our Constitution adopted the view held by Meredith C.J. in the consideration of the Indian Constitution in Brajnandan Sharman v. Bihjr (1950) I.L.R. Pat. 46124. This view has been subsequently contradicted by later decisions in India. See S.I.S. Limited v. Union A.I.R. (1972) Delhi 159.25. The view held by Meredith C.J., is endorsed by Dr. T.K.K. Iyer in his very informative book — "Judicial Review of Reasonableness in Constitutional Law" at pages 93 to 99. I endorse the reasons given for this view. The Nigerian Courts like the latter Indian decisions have applied the presumption of constitutionality of an Act and require that the person who alleges unconstitutionality of a law has the onus of proof. This however has been questioned by Nwabueze in his book — "Constitutional Law of the Nigerian Republic" at p.311.


"It would be sufficient for the party who alleges that a law is unconstitutional to merely prove that his right is infringed. He is only required to show a prima facie case. Where this is shown, then the onus is on the party who relies on the validity of the law to prove that it is within the limitation provided by the Constitution."


29. Having regard to the nature and extent of emergency laws (eg under s 233 (2) of the Constitution) and in particular temporary and limited period of its operation, and adopting the views I have expressed in SCR No. 2 of 1982, the NEC should bear the onus of satisfying that the circumstances exist for a state of emergency.


30. In these proceedings, the validity of declaration of state of emergency is raised, the onus is on the NEC to prove that it comes within the definition of emergency imposed by the Constitution.


31. I turn now to consider the evidence relating to the circumstances of emergency. There is no evidence led in these proceedings on the circumstances that are said to constitute the state of "emergency". The only evidence which counsel for the respondents relies upon is the explanation in the National Parliament under s 339 of the Constitution by the Prime Minister (see Agreed Statement of Facts per par (2.9)).


32. What is required is evidence of the circumstances, not the explanations to the Parliament or conclusions by others of the situation. It is for this Court to determine whether those circumstances amount to an "emergency". What is explained in the National Parliament is for the purpose of debate and political vote on the floor of the Parliament. Unfortunately, counsel for the respondents decided not to call or introduce any affidavits in this regard. During the directions hearing, counsel discussed at length the nature of the evidence that is required. Every opportunity was given to lead the appropriate evidence. We raised the complete lack of evidence during argument and no steps were taken by counsel for the respondents to introduce any evidence. They sought to rely on the debates in the National Parliament to prove their case.


33. Not only is there no evidence introduced in this case, there is no indication of the extent of breakdown of civil government so as to justify a declaration of emergency. If we accept that there is some evidence of breakdown of law and order, maladministration, corruption and the like, that of itself is not enough to prove that a state of emergency exists. If that were the case, there would be a state of emergency throughout the country. What is required is some evidence of steps taken under the existing laws and the situation is so out of control or is so ineffective to declare a state of emergency. No such evidence has been led to indicate ineffectiveness of the ordinary process of law to deal with those who have broken the law. All that may be required is to enforce the law and deal with the situation. The respondents have not discharged the onus of proof. I am not satisfied that the circumstances exist for a state of emergency.


34. Consequently, the declaration of state of emergency is invalid. It follows that the suspension of the Southern Highlands Provincial Government which followed the declaration of emergency under s.187E(4) of the Constitution is also invalid and it must be reinstated.


35. INJIA, DCJ: I have read the draft judgment of the Chief Justice and agree with his reasons and conclusions. I have also read the draft judgments of my brothers Justices Los, Salika and Sakora and agree with their additional remarks. I wish to express views of my own on several aspects of the case.


36. These two originating summons were commenced by the plaintiffs under s.18 of the Constitution. The parties attended at various directions hearing before the Chief Justice.


37. The trial of the two actions was consolidated. The two actions arise from a decision made by the National Executive Council (NEC) on 1 August 2006 to advise the Head of State to declare a State of Emergency (SoE) in the Southern Highlands Province (SHP) under s.228(1) of the Constitution. On 22 August 2006, Parliament extended the SoE. It has now been further extended twice and is still in force. Consequently, the Southern Highlands Provincial Government (SHPG) was also suspended under s.187E(4) of the Constitution. It remains suspended during the SoE. The plaintiffs seek to invalidate the declaration of SoE and consequently, suspension of SHPG. The application is contested by the defendants.


Statement of Agreed Facts


38. In the directions hearing before the Chief Justice the parties agreed to proceed by way of agreed statement of facts and legal issues. Those are contained in the Statement of Agreed Facts and Legal Issues ("the Statement") filed herein. The evidence from which those facts are founded is not before us. We decided to proceed to determine the issues raised on this basis.


39. The facts set out in par (2) of the Statement are as follows:


2.1 On the 16th of May 2006, the Central Agencies Coordinating Committee (CACC) made a policy advice/submission to the Prime Minister and the National Executive Council (NEC) that recommended that:

2.2 That on the 17th May, 2006, the National Executive council (NEC) at its meeting No. 17 of 2006, did resolve in its decision No. 96 of 2006, inter alia to:

2.3 That on the 16th of June 2006, the National Executive Council (NEC) at its meeting No. 21 of 2006 and considered inter alia, and resolved its decision No. 121 of 2006 as follows:


(a) Noted the content of Policy submission 80/2006;

(b) Endorsed the need to mount a Special Joint Operations in the Southern Highlands Province; and

(c) Endorsed the following decisions of the National Security Council in addressing the Southern Highlands situation:

(d) Directed the relevant Department and Agencies to implement the strategic approaches stated above as a matter of urgency.

2.4 Prior to 12 July 2006, the Auditor General had commenced auditing of the Southern Highlands Provincial Government Books.

2.5 That on the 20th of July, 2006 the NEC at its meeting No. 25 of 2006 resolved in its decisions No. 138 of 2006 as follows:

(d) Directed the Minister for Public Enterprise, Information and Development Corporation assisted by Ministers for Mining, Petroleum and Energy and Inter government Relations to appoint a public relations officer to conduct public awareness on the State of Emergency;


(e) Approved to advise the head of State to declare a State of Emergency for the Southern Highlands Province with effect from 25th July 2006.


2.6 On the 1st of August 2006 the Minister for Intergovernmental Relations Mr. Sam Abal presented a submission to the National Executive Council to suspend the Southern Highlands Provincial Government.

2.7 The Governor General on the 1st August 2006, declared in the National Gazette (No. G.____) a National Emergency in the Southern Highlands Province.

2.8 That on the 1st August 2006, the Minister for Inter Government Relations, Mr. Sam Abal presented a submission to the National Executive Council after declaring the National Emergency to suspend the Southern Highlands Provincial Government under section 187E(4) of the Constitution.

2.9 On the 1st of August 2006 at its meeting No. 28 of 2006, the NEC in its decision No. 153 of 2006 resolved as follows:

2.10 On the 1st of August 2006, the Prime Minister Grand Chief Sir Michael Somare made a speech to the National Parliament announcing the declaration of National Emergency in the Southern Highlands and giving reasons for the declaration of the National Emergency in the Southern Highland. The reasons advanced by the Prime Minister included;

2.11 On the 1st of August 2006 the National Parliament resolved the following in relation to the National Emergency in the Southern Highlands:

2.12 On the 1st of August 2006, the Minister for Inter Government Relations and Local Level Government matters Mr. Sam Abal also made a speech to Parliament on the suspension of the Southern Highlands Provincial Government.

2.13 On the 21st of August 2006, the National Parliament heard a statement from the Prime Minister on the justification for extension of the National Emergency in the Southern Highlands Province and took note of a statement by Dr. Allan Marat, the Chairman of the Parliamentary Emergency Committee on the emergency in the Southern Highlands Province. The Parliament took note of the Statement made by the Prime Minister and Dr. Allan Marat and had adjourned the debate to the 22nd August, 2006.

2.14 On the 22nd of August 2006, the National Parliament noted and approved the following in relation to the national emergency in the Southern Highlands Province:

2.15 On 1st August 2006 or thereafter the National Executive Council did not suspend the LLG of the SHP including the Kutubu Special purpose Authority.

2.16 Due to general break down on law and order, National Emergency have been declared in the past in certain parts of the country or the country as a whole. Some of the NEC decisions and call out in this respect are as follows:

Statement of agreed legal issues.


40. The parties agreed to five (5) legal issues for determination which are set out in par (3) of the Statement as follows:


2.1 Whether all of the parties have a legal standing to be heard in these proceedings.

2.2 Whether this Honourable Court has jurisdiction to determine as to whether a situation of emergency as defined in section 226 of the Constitution existed or about to come into being at the time the National Executive Council advised the Head of State to declare a National Emergency in the Southern Highlands Province.

2.3 Whether the opinion of the National Executive Council as formed under section 228 (1) of the Constitution to declare a national emergency is subject to review by this Honourable Court.

2.4 Whether a situation of emergency as defined under s.226 of the Constitution existed or about to come into being at the time the National Executive Council advised the Head of State to declare a national emergency in the Southern Highlands Province.

2.5 If the declaration of national emergency in the Southern Highlands Province by the NEC is constitutionally valid then, whether the extension of the emergency on the 22 August 2006 by the Parliament was done in accordance with s.239(3) of the Constitution.

41. The Chief Justice has dealt with the four main issues. It is convenient to set out s 226 and s 228. Section 226 states:


"226. Definitions


In this Part, unless the contrary intention appears—

"declaration of a national emergency" means a declaration under Section 228 (declaration of national emergency);

"emergency" includes, without limiting the generality of the expression—

(a) imminent danger of war between Papua New Guinea and another country, or of warlike operations threatening national security; and
(b) an earthquake, volcanic eruption, storm, tempest, flood, fire or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and
(c) action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life;"

Section 228 states:


"228. Declaration of national emergency


(1) If the National Executive Council is of the opinion that an emergency exists or is about to come into being such that it is necessary that the powers conferred by the succeeding provisions of this Part be available, the Head of State, acting with, and in accordance with, the advice of the National Executive council, may publicly declare the existence of a national emergency in relation to the whole or part of the country.


(2) Unless it is impracticable to do so, a declaration under Subsection (1) shall be made in relation to a part of the country only after prior consultation with the Emergency Committee."


42. I turn to the third legal issue of whether the opinion of the National Executive Council (NEC) as formed under s.228(1) of the Constitution to declare a national emergency is subject to review by the Supreme Court.


Justiciability of opinion formed by NEC under s 228(1)


43. It is submitted for the defendants that "an opinion" formed by the NEC under s.228(1) as to the existence of an emergency in SHP is a political/executive decision and a matter for the NEC to decide based on relevant material placed before it and not for this Court to decide. This Court would be in no position to form such an opinion. Therefore, the opinion formed is not reviewable by this Court.


44. It is submitted for the plaintiffs that the question of this Court’s review power does not arise because the law is settled that the exercise of a constitutional power and the conditions upon which that power is exercised by the NEC is subject to review by this Court under s.18, s 19, and s 57 of the Constitution: Haiveta v Wingti (No. 3) [1994] PNGLR 197, SCR No. 3 of 1999, Special Reference on s.10 Re Calling of Parliament SC 628, Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122. The power conferred by s.228(1) on the NEC to form an opinion on the existence of an emergency as defined in s.226(c) and the decision to declare a SoE involves interpretation and application of a constitutional law which the Supreme Court has jurisdiction to review.


45. There are two (2) parts to the decision made under s.228 (1). The first is the NEC decision which is challenged in these proceedings. The NEC is joined as a party to these proceedings. The second is the declaration made by the Head of State. The Head of State’s declaration is not specifically challenged and His Excellency is not joined as a party, whereas the State is a party. In Kila Wari and others v Gabriel Ramoi and Another [1986] PNGLR 112, the Supreme Court decided that the proper party in any proceeding challenging an action of the Head of State under the Constitution is the State. The Court also decided that whilst s.86(4) of the Constitution protects any advice given by the NEC to the Head of State, within the discretion given by an Act or the Constitution, it does not protect any advice which is either inconsistent or ultra vires an Act or the Constitution. Action taken by the Head of State in accordance with advice of the NEC under an Act or the Constitution is justiciable to the extent of its inconsistency with an Act or the Constitution. It also decided that because the Head of State has no independent power, the decision of the NEC and the advice given by the NEC upon which the Head of State acts, is subject to judicial review.


46. In the present case, the Head of State simply made a declaration based on the advice received from the NEC that it had formed an opinion that a situation of emergency as defined in s.226(c) existed in the SHP. It is this opinion formed and advice given that is the proper subject of review in these proceedings. The declaration made by the Head of State is a mere formality and it remains to stand or fall on the decision of this Court on the NEC decision.


47. The Respondents’ arguments raises the issue of justiciability of the NEC decision. The NEC is established by s.149 which simply says "the procedures of the council are as determined by it". The NEC enjoys no special privilege or immunity from judicial review, as is the case with the proceedings of the National Parliament (s.134) or advice given by the NEC to the Head of State (s.86)(4). In Kekedo v Burns Philp, supra, the Supreme Court held that both the exercise of statutory power by the Head of State and the NEC are subject to control by the Courts by way of judicial review on grounds that they exceeded their powers, abused their powers or made a decision which no reasonable authority could have made. Also see Kila Wari, (supra); The Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417 at 420 – 421.


48. The specific question raised in relation to an opinion formed under s.228(1) has not been raised before in this jurisdiction. But the conclusion I have reached above is supported by case precedent in many jurisdictions.


49. In other countries with similar emergency provisions in their respective Constitution, it has been held that the Supreme Court has jurisdiction to review a declaration of SoE by the Head of State or the President. For instance, in India, Article 352 of the Constitution of India authorized the President to declare a SoE where he was satisfied that a situation of grave emergency existed. In S.R. Boumai v Union of India (1994) A.I.R. (S.C) 1918, the Supreme Court held that the validity of a Proclamation made by the President was judicially reviewable "to the extent of examining whether it was issued on the basis of any material at all or whether the material was relevant or whether the Proclamation was issued in the mala fide exercise of the power".


50. In Pakistan, Article 232(1) of the Constitution empowered the President to declare SoE where he was satisfied that a situation of grave emergency existed which threatened the security of Pakistan. In Farooq Ahamad Khan Leghari v Federation of Pakistan (1999) P.C.D. (S.C) 57 the Supreme Court held that a Proclamation of emergency was judicially reviewable on the grounds whether on the materials placed before him, the President was justified in making the proclamation.


51. In Malaysia, Article 150 of the Federal Constitution empowered the Head of State (known as the "Yang di-Pertuas Agong") to declare a SoE if he was satisfied that a grave emergency existed whereby the security and economic life of the Federation was threatened. The Head of State invoked this power and declared a SoE in the State of Sarawak. In Ningkan v Government of Malaysia, (1991) AC 379 the Supreme Court held that the onus was on the party challenging the declaration to show the Head of State acted "erroneously or in any way mala fide in taking the view that there was a constitutional crisis in Sarawak, that involved or threatened a breakdown of stable government and amounted to an emergency calling for dramatic action."


52. In King Emperor v Benasi Lal Sarma & ors (1943) A.C. 14 the Head of State of India was empowered to make emergency regulations to set up special Courts where "an emergency has arisen". The Privy Council said "assuming that he acts bona fide and in accordance with his statutory powers, it cannot rest with the Courts to challenge his view that the emergency exists". This statement implies that the view or opinion formed by the Governor-General that an emergency exists is judicially reviewable on the grounds that he acted mala fide or that he did not act in accordance with the statutory powers vested in him.


53. These and many other decisions of other countries which have similar emergency provisions in their respective Constitution, support the principle that the "opinion" formed by the Head of State that a situation of emergency exists is open to judicial review on the following grounds:-


  1. That the opinion is erroneous in that it is not based on material placed before the Head of State or based on irrelevant facts and considerations.
  2. It is issued mala fide exercise of statutory power.
  3. It is inconsistent with statute or constitutional law.

54. In PNG, the above grounds are embodied in the general grounds set out in Burns Philp and adopted in Kila Wari and others and they equally apply to the present case with appropriate modification. That is, the opinion formed and decision reached by NEC to advise the Head of State to declare a SoE is made in excess of power conferred by the Constitution, s.288 or inconsistent with the Constitution, s.226 and s.228; that it abuses its powers or makes a decision to declare a SoE on irrelevant facts and considerations or that which no reasonable authority exercising constitutional power vested by s.228 in conjunction with s.226 could have made.


55. I turn to the definition of an emergency and question of whether the declaration was justified in the present case.


Definition of Emergency


56. An emergency is defined in s 226 to include three (3) situations enumerated therein. Section 228 (1) gives the NEC the power to determine if a situation of emergency exists in relation to the whole or any part of the country.


57. In my opinion, the NEC or anyone for that matter should have little difficulty in determining a situation of emergency exists under paragraphs (a) (war or warlike operations) and (b) (natural disasters) because these are extra-ordinary events of public emergency brought about by forces of nature or human forces from outside the nation. Upon the sudden or unexpected happening of those events, the public would expect the government to take some drastic measures to respond to the emergency and that the public would be expected to unite and co-operate with the government to restore normalcy. It is in the public interest that the government must act and act swiftly upon the occurrence of these events.


58. The emergency situation under paragraph (c) is different. It relates to actions taken by persons which threaten the organised life of the community and its people. Paragraph (c) must be read as a whole and given fair and liberal construction.


59. The type of action intended in (c) is clear from the CPC Report. In its final report the CPC at par 4/2/1 described this kind of activities as "very serious civil disturbances such as organized attacks on many government officers "or" very difficult civil disorder situation (which) may possible arise in the long term for which proper provision should be made in the Constitution to enable the government to cope with them" (my emphasis).


60. In Ninkan v Government of Malaysia [1991] AC 379 at 390, the English Privy council described this kind of emergency as actions taken which is so grave as to "threaten the security and economic life of the nation" and lead to "collapse of civil government." The Privy Council said:


"Though an "emergency" to be within that article must be not only be grave but such as to threaten the security or economic life of the Federation or any part of it, the natural meaning of the word itself is capable of covering a wide range of situations and occurrences, including the collapse of civil government" (My emphasis).


61. At the international level, a declaration of SoE is warranted where actions taken by persons "threatens the life of the nation" or part thereof. In the United Nations context, Article 4(c) of the International Covenant on Civil and Political Rights (ICCPR) provides that "in time of public emergency which "threaten the life of the nation" "the existence of which is officially proclaimed" a State party to the Convention may take appropriate measures to deal with the situation. The ICCPR does not define "public emergency." That is left to domestic law of member countries. Similarly, Article 15 of the European Convention on Human Rights provides that "in time of war or other public emergencies threatening the life of the nation", a State may take similar measures. Other regional conventions such as the Inter-American Convention on Human Rights make similar provisions.


62. I understand PNG is not a signatory to ICCPR and the government is in the process of ratifying the Convention. However, the Convention is of some assistance in interpreting what our (c) means. Apart from war and natural disasters, as to what other public emergency in ICCPR means, some assistance may be gained from the work of international experts. In 1984, the Committee of Experts comprising of respected jurists from some 33 countries convened in Siracusa, Sicily for a week to consider the limitation and derogation provisions of the ICCPR in order to evolve some uniform principles. The Committee produced what is known as the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights (hereinafter referred to as the Siracusa Principles). Paragraphs 39-41 elaborates the meaning of the phrase "public emergency which threatens the life of the nation" in Article 4 of ICCPR, as follows:


"39. A State party may take measures derogating from its obligations under the International Covenant on Civil and Political Rights pursuant to Article 4 (hereinafter called "derogation measures") only when faced with a situation of exceptional and actual or imminent danger which threatens the life of the nation. A threat to the life of the nation is one that:


(a) affects the whole population and either the whole or part of the territory of the State, and
(b) threatens the physical integrity of the population, the political independence or the territorial integrity of the State or the existence or basic functioning of institutions indispensable to ensure and protect the rights recognized in the Covenant.
  1. Internal conflict and unrest that do not constitute a grave imminent threat to the life of the nation cannot justify derogation under Article 4.
  2. Economic difficulties per se cannot justify derogation measures."

63. Whilst international covenants and the common law refer to internal conflict and civil unrest or civil disorder which threatens the life of the nation or collapse of civil government, s 226(c) refers to situation of civil disorder which threatens public safety or "supplies or services essential to life." Section 226(c) does not specify if "life" refers to human life or the life of the government or the nation. I would interpret it broadly to include lives of the people, the life of the nation or province or the life of the government, be it national, provincial or local-level government.


64. The CPC had in mind a situation of civil disorder such as internal conflict or unrest which threatened the life of the government as a guardian of public safety and either itself a provider of social and economic services essential to human life or as facilitating a secure environment which is conducive to provision of such services by other persons. In my view, s.226(c) should be read broadly to include situations of very serious civil unrest or disorder which threaten the lives of citizens or threatens the government as an institution or its function of itself as providing public safety and services essential to life of its people or facilitating the provision of such services by other people.


65. Section 226(c) relates to actions taken by natural persons from within the country which are of such magnitude that the public safety and welfare is threatened. The provision of services in public safety and security of supply of goods and services essential to life including health, education, transport and employment are basic functions of the government. It is the function of government to either provide or facilitate the provision of these services which are essential to human life. The actions carried out by persons with harmful intent are so serious and extensive that they strike at the very foundation of government and threaten its existence. The kind of action taken by persons under the situation described in (c) relates to harmful, illegal or criminal activities carried out by criminals bent on destroying human life, property and government. An organized attack by criminals of wide-scale proportion on citizens or government institutions, services and officers, if it reaches a level which causes civil disorder or cripples civil government it may come within (c). I do not think (c) is intended to include ordinary criminal activities by isolated individuals or groups of persons arising from general breakdown of civil order due to social problems or poor economic conditions. These types of actions can be dealt with under the ordinary criminal law.


66. Such action under (c) may be taken by any person including government officers. It is argued that a "person" includes corporate entities but I do not think corporate entities alone cannot take any action which triggers an emergency situation unless there is a human factor involved. A corporate entity such as SHPG has no arms, legs or soul, so to speak, which is capable of triggering an emergency situation unless persons employed by the government manipulate or interfere with the administration and carry out those actions from within. I do not think the definition of a "person" in (c) includes a body corporate.


67. In the present case, the Statement does not contain a clear statement of NEC’s opinion formed under s 228 (1) at its meeting on 20 July 2006. Statement par (2.5)(d) simply states the "NEC" approved to advise the Head of State to declare a State of Emergency for Southern Highlands Province with effective from 25 July 2006. At its meeting held on 1 August 2006, the NEC varied the date to midnight on 1 August 2006.


68. The decision by NEC to advise the Head of State to declare a SoE appears to have been made at its meeting held on 16 June 2006. In that meeting, the NEC decided to endorse the decision of the National Security Council to take certain corrective measures to address the problems in SHP. The corrective measures set out in the Statement, par (2.3(c)(ii)(A)-(F) form the reasons for the decisions to declare a Statement of emergency made that day. On 1 August 2006, the Prime Minister gave the same reasons to Parliament. These are set out at par (2.10) of the Statement. I accept that these were the reasons which formed the basis of the opinion formed by NEC under s 228 (1).


69. Taking those reasons on their face value, there is no suggestion of any very serious internal conflict between factions which threatened the public safety and lives of people in SHP. There is no suggestion of very serious civil disorder brought about by organized attacks on the government officers or facilities. There is also no suggestion of a complete collapse of civil government in SHP as a result of organized attack on officers of SHPG. There is no suggestion in the agreed statement of facts that SHPG had collapsed and that it had completely lost control of governance of SHP. It appears that the main reason why SoE was declared in SHP was due to actions taken by individuals or groups in SHP, either with the provincial government administration or from outside which made the SHPG and SHP in general unmanageable. It appears that people in SHP, both from within the provincial government and from outside made it difficult for the SHPG to govern effectively because of illegal self-help actions taken to seize government houses, finances and equipment belonging to SHPG and that people were openly carrying around firearms. There was breakdown in law and order, maladministration and corrupt activities taking place with SHPG and SHP as a whole. That is all this Court knows of the situation in SHP.


70. In my opinion these kinds of criminal activities should be normally dealt with under the ordinary criminal laws of this country. It is clear to me that all these illegal activities have been going on for some time and intensified in 2006. There are enough laws to deal with all these kinds of criminal activities. Both the national and provincial government should have detected these illegal activities when they started and stepped up their efforts to deal with law breakers using the ordinary laws and law enforcement agencies. It seems that the situation in SHP is that those officers and leaders in the SHPG establishment charged with the duty to govern SHP have just about failed to govern SHP, either by themselves contributing to the lawlessness or standing idle and doing nothing about it. In my opinion, there was no need for a declaration of SoE and emergency laws to deal with these ordinary problems.


71. On the facts before us, I am satisfied that the plaintiffs have raised a prima facie case that the declaration of SoE was not justified for the reasons given by the NEC. I am also satisfied that the NEC has failed to discharge its onus of justifying the declaration of SoE.


72. For these reasons, I am also of the view that the declaration of SoE should be declared invalid. Having reached this conclusion, it must necessarily follow that the various extensions of SoE by the Parliament must also be invalid.


Suspension of SHPG


73. Section 187 E (4) of the Constitution relates to suspension of a Provincial Government during a SoE. It states:


"The National Executive Council may suspend a Provincial Government or a Local-Level government that cannot carry out its functions effectively because of war or a national emergency declared under Part X (Emergency Powers) affecting the province, local-level government area or the whole country."


74. There is no doubt that the suspension of SHPG was directly linked to the declaration of SoE. The Statement, par (2.9) (b) states NEC approved the suspension of SHPG under s 187 of the Constitution "following the declaration of National emergency in the Southern Highlands Province".


75. It follows then that when the SoE is declared invalid, there is no basis for the suspension of SHPG under s 187E(4). The suspension must also be declared invalid. Consequently, the SHPG must be reinstated forthwith.


Evidence on emergency


76. I turn to the evidence on "emergency" under (c). The question whether an emergency under (c) exists is a matter for NEC to decide by way of an opinion formed. The opinion is based on material placed before it. Provided the material is relevant, the NEC may consider a wide variety of material and information. It may also consider the views expressed by members of NEC based on their own knowledge and experiences on the matter. The decision reached is a collective one. As much as the opinion is based on law, it is a highly subjective one, permeated by executive and political considerations and presumably, one made in the best interest of good governance. The NEC is the best judge on matters of executive and political nature. When the Court is asked to disturb the NEC’s opinion, the Court must be cautious in forming an opinion as to whether the NEC was not made in accordance with law. The Court must carefully and objectively consider all the material on which the NEC decision is based and decide for itself whether the NEC decision was made contrary to law. In a case where there is doubt or ambiguity as to whether the material was relevant or conclusion reached on the material was open, the issue should be resolved in favour of NEC. Such situation calls for deference to the judgment of NEC. The Court should only interfere with the NEC’s opinion in a clear case.


77. In an application challenging the decision of NEC made under s 228 (1), the State party contesting the application must ensure that all material which was placed before the NEC must be also placed before the Court. This Court will then assess the evidence and reach its own conclusions.


78. In the present case I appreciate the urgency with which the application was listed for hearing at the directions hearing. The parties agreed to submit an agreed statement of facts and leave out the evidence to save time. In the circumstances, this Court agreed to proceed on that basis. In future cases however, both parties must put before the Court all relevant evidence including material before the NEC and the Court must make a proper determination on the facts. Should the parties wish to agree to certain facts based on the evidence, it is in the Court’s discretion to accept or reject the agreed facts and if accepted, make findings of fact and give appropriate weight.


79. LOS, J.: I have read the draft judgment by the Chief Justice and the Deputy Chief Justice and I agree with their reasons and conclusions. In relation to legal issues the Chief Justice has eloquently discussed the law and facts as much as possible available to the Court.


80. My concern relates to the situation existing at the Southern Highlands Province arising from various criminal and civil cases where misuse of powers – in employment, engagement of persons in non-existing positions, employment of relatives and friends, misuse of vehicles, houses and other properties, disputes on leadership to the extent no one was able to handle it. The deployment of military personnel and police was not helping out expeditiously. In such situation where the people who cannot appreciate the fine points of law may see the judiciary as impliedly supporting the lawlessness in the Southern Highlands.


81. The onus of course is on those who commenced the proceedings to discharge. But I express this view to be alert that the Court could not be seen as ‘assisting’ the law breakers.


82. For reasons given by their Honours, I also agree that the declaration of State of Emergency in Southern Highlands Province must be declared invalid. Consequently, the suspension of the Southern Highlands Province must also be declared invalid and the provincial government restored to office forthwith.


83. SALIKA, J.: I have read the draft judgment prepared by the Chief Justice and Deputy Chief Justice and I agree with their reasons and conclusions. I add a few remarks of my own.


84. As to what is an "emergency", the Oxford Advanced Learners Dictionary defines "emergency" as:-


"Sudden serious event or situation requiring immediate action."


85. This definition is the ordinary every day meaning of an emergency for example, a volcano eruption is an event that will require immediate action to evacuate people from danger. Another example is when someone gets hit in a motor vehicle accident and is critically injured. Such a situation is an emergency requiring the person hit to be taken to the hospital immediately. Such events are sudden and require immediate action.


86. Section 226 of the Constitution says that an emergency includes, without limiting the generality of the expression:-


  1. imminent danger of war between Papua New Guinea and another country, or of warlike operations threatening national security; and
  2. an earthquake, volcanic eruption, storm, tempest, flood, fire or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and
  1. action taken, or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life.

87. In the case before this Court, situations (a) and (b) above do not arise. Situations (a) and (b) would come under the definition of sudden serious event requiring immediate action. The National Executive Council relied on (c) above to declare a State of Emergency in the Southern Highlands Province which is different to (a) and (b) above. Under (c) The National Executive Council must be of the opinion that events have occurred or are about to occur of such a nature or to be calculated to endanger public safety or to deprive the community or substantial part of the community supplies or services essential to life. The applicants submitted that no serious event or situation arose or had arisen requiring urgent action.


88. In England, under the Emergency Powers Act 1920 and 1964, Her Majesty may proclaim a state of emergency if at any time it appears to her that there have occurred or are about to occur, events of such a nature as to be calculated to deprive the community, or any substantial part of it, of the essentials of life by interference with the supply and distributions of food, water, fuel or light, or with the means of locomotion.


89. The provision is probably equivalent to our s.226(c) of the Constitution. In the English situation, the Queen declares a State of Emergency, where essential services necessary to life have been interfered with or are about to be interfered with. Essentials of life refer to provision of food, water, fuel, or light or with the means of locomotion under English law. Matters essential to life there are spelt out. Under our s.226(c) "supplies or services essential to life" are not specified. It could mean all the things or actions specified under English law and more, such as medical services, law and order services, and generally government services which are or may be essential and vital for sustenance of life.


90. If it appeared to the National Executive Council that such events as mentioned above or events of any specified nature had occurred or were about to occur and if the National Executive Council was of the opinion that the occurrence of those events were of such a nature as to interfere with the supply and distribution of essential services to the community or a substantial part of the community, it (NEC) could advice The Head of State to declare a State of Emergency. That appears to be the position s.226(c) is saying.


91. Under s.228 of the Constitution, the National Executive Council must be of the opinion that an emergency exists or is about to come into being. At the hearing of this matter, this Court was informed that there was information, material or evidence before the National Executive Council for it to have advised The Head of State to declare the State of Emergency. Such information, material or evidence however is not before the Court. In such a situation, can the Court make a ruling one way or another without such information, material or evidence? I do not think so.


92. This leads me to ask the question as to who has the onus to put that information, material or evidence before this Court. One suggestion is that, the applicants have the duty to table those matters before the Court. It maybe argued that the applicants wish to have the Court declare the State of Emergency a nullity; it is therefore incumbent upon them to provide that material and establish or demonstrate that the State of Emergency is not warranted or justified.


93. The other suggestion is that the National Executive Council must show to the Court that these circumstances were prevailing then for it to declare a state of emergency. It must show that its opinion was based on evidence presented before it to declare the emergency. It must show that the evidence before it to declare the emergency were such that the National Executive Council was left with no other option but to declare a state of emergency.


94. I note the Deputy Chief Justice’s comments on the evidentiary requirements and I agree with him. In the present case, the parties agreed to proceed by way of Agreed Statement of Facts and so I accept this approach. In future, all relevant information, material or evidence which was before the NEC must be placed before the Court to determine the issue. Whilst the onus is on the plaintiff to provide the necessary evidence to prove its case, the onus equally falls on the NEC to provide those materials.


95. As to the suspension of the Southern Highlands Provincial Government, I agree with my brothers that the suspension should be declared invalid and the provincial government restored immediately.


96. SAKORA J: Introduction: On 1 August 2006, the Governor-General declared a State of Emergency (SOE) in the Southern Highlands Province, pursuant to s 228 Constitution. This provision is in the following terms:


  1. Declaration of national emergency.
(1) If the National Executive Council is of the opinion that an emergency exists or is about to come into being such that it is necessary that the powers conferred by the succeeding provisions of the Part be available, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may publicly declare the existence of a national emergency in relation to the whole or part of the country.
(2) Unless it is impracticable to do so, a declaration under Subsection (1) shall be made in relation to a part of the country only after prior consultation with the Emergency Committee.

97. Following the declaration of a SOE, but on the very same day, the National Executive Council (NEC) resolved to and did suspend the Southern Highlands Provincial Government (SHPG), pursuant to s 187E(4) Constitution. And this provision is in the following terms:


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


(1) . . .
(2) . . .
(3) . . .
(4) The National Executive Council may suspend a Provincial Government or a Local-level Government that cannot carry out its functions effectively because of a war or a national emergency declared under Part X (emergency powers) affecting the province, local-level government area or the whole of the country.

98. Consequent upon the declaration of the SOE and its suspension, the powers and functions of the Southern Highlands Provincial Government (SHPG) vested in the NEC: Subsection (5) of this provision.


99. The suspension of the provincial government was not accompanied or followed by the suspension of the various Local-level Governments (LLGs) in the province, including the Kutubu Special Purpose Authority (KSPA). The various Presidents of the various LLGs in the province are members of the Southern Highlands Provincial Assembly (SHPA) by virtue of s 10 (3) Organic Law on Provincial and Local-level Governments ("the Organic Law"). Some presidents of the various LLGs are members of the Provincial Executive Council (PEC): s 23 (1) of the Organic Law, holding certain portfolios.


100. The factual background to the NEC decisions of 1 August 2006, and subsequent events, have been adequately canvassed in the judgment of the Deputy Chief Justice and I am indebted to him for this, saving me the need to do so myself.


101. Whilst I am in full and respectful agreement with the conclusions reached by both the Chief Justice and the Deputy Chief Justice on the issues raised for our consideration and determination, I wish to add to those with my own comments and observations, if only to emphasise certain aspects of the issues considered and the conclusions.


102. Following the declaration and suspension, two Supreme Court originating summonses were filed, first by the SHPG and the Governor of the province, the Honourable Nipa Hami Yawari MP; and secondly, by the ten (10) Presidents of their respective LLGs. By a direction of this Court, the two summonses were consolidated and heard together.


103. The plaintiffs challenge the legality, constitutional validity, of the SOE and the consequent suspension of the provincial government. They, therefore, invoke the interpretative jurisdiction of the Court pursuant to s 18 of the Constitution. This provision reads as follows:


Original interpretative jurisdiction of the Supreme Court.

(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 than 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.

104. It is both convenient and instructive that the five (5) legal and constitutional issues identified and agreed to by the parties for the court’s consideration and determination should be stated here, and I do so hereunder as follows:


  1. Whether all of the Parties have a legal standing to be heard in these proceedings.
  2. Whether this Honourable Court has jurisdiction to determine as to whether a situation of emergency as defined in section 226 of the Constitution existed or about to come into being at the time the National Executive Council advised the Head of State to declare a National Emergency in the Southern Highlands Province.
  3. Whether the opinion of the National Executive Council as formed under section 228 (1) of the Constitution to declare a national emergency is subject to review by this Honourable Court or should it only be done by the National Executive Council or the Parliament as stipulated by Sections 229 and 230 of the Constitution.
  4. Whether a situation of emergency as defined under s 226 of the Constitution existed or about to come into being at the time the National Executive Council advised the Head of State to declare a national emergency in the Southern Highlands Province.
  5. If the declaration of national emergency in the Southern Highlands Province by the NEC is constitutionally valid then, whether the extension of the emergency on the 22 August 2006 by the Parliament was done in accordance with section 239 (3) of the Constitution.

The Scheme of the Constitution


105. Part of the Preamble to the Constitution acknowledges the establishment of this sovereign state by the people: We, The People... and declares... ourselves, under the guiding hand of God, to be the Independent State of Papua New Guinea. And by virtue of that authority it was asserted that all power belongs to the people – acting through their duly elected representatives. Thus, those institutions and authorities which exercise State powers, be they legislative, executive and administrative, or judicial, owe their existence and legitimacy to The People.


106. Ours is a unitary state, as opposed to a federal system, and thus organized under a single central government. And even with our so-called devolution of powers through the provincial governments system, in reality the powers of the state are held at the discretion of the central government, and exercised and administered over the territory of the state as a whole by the central government. Financial, legislative and administrative superintendence over the mostly inefficient and ineffective provincial governments, and the ultimate power of the central government to suspend provincial governments emphasise the unitary nature of the organization of the state under the Constitution.


107. The system of government we adopted through our Constitution at independence is a "modified version" of the Westminster model, "allowing for representative and responsible government, and a cabinet system": John Goldring, The Constitution of Papua New Guinea (LBC, 1978, p. 14). The representative aspect is declared in the Preamble (supra), with the duly elected representatives being mere delegates of We, The People, driving home the notion and strong message that the government is to be "by the people, and for the people". One important feature of our governmental system is that our executive is a parliamentary executive, a basic tenet of responsible government, ensuring that the ministers and the head of government who collectively make up the Cabinet are responsible and accountable to the people through their duly elected representatives, the members of parliament not in Cabinet. Apart from the periodical direct accountability to the people through regular parliamentary elections, accountability to parliament is ensured by the parliamentary devices of Motion of No Confidence (s 114 and s 145 Constitution) or Censure Motions moved and debated publicly on the floor of parliament.


108. The Parliament in whom the people’s legislative, the law-making, power and authority are vested, therefore, is one of the traditional and formal institutions under the Westminster system for supervising and controlling the exercise of executive power. This power and authority is so important in a unicameral legislature such as we have here. Bicameralism is characteristic of most important states today, and invariably those with elaborate federal systems of government, as found in, for example, the United State, Australia and Canada. The existence of a second chamber of parliament in these federal states, amongst other things, prevents the passage of precipitate and ill-considered legislation by a single house or chamber. That the sense of "unchecked power" on the part of a single chamber such as we have here, especially where the so-called Opposition is ineffective and/or indifferent, and outnumbered (and often out-manoeuvred) by the government, and thus conscious of having only itself to consult, may lead to abuse of power and tyranny. And such "direct popular checks" by the electorate as referendum, initiative and recall are absent from our constitutional scheme. It may be recalled (pun not intended) that the Hollywood tough-guy Arnold Schwarzenegger ousted the incumbent Democrat Governor of California on a recall a few years ago on the basis, amongst other things, of financial mismanagement of the state.


109. It must have been because of fears of perceived shortcomings of a unicameral parliamentary chamber, with no upper house of review, that the Constitutional Planning Committee (CPC) considered ways and means of resolving constitutional disputes, and eventually settled on vesting jurisdiction for this on the Supreme Court (CPC Report Ch. 8, p. 13, E par (133 – 149): see the Recommendations (p. 30, E par (81)(1) to (3). It is instructive to reproduce hereunder what the Committee said at paragraphs 141 and 142:


  1. We have proposed in preceding chapters that several institutions in the country have a general responsibility to see to it that the Constitution is respected. Both the Prime Minister and the National Parliament should, we believe, have important roles in this respect. Political parties and other pressure groups and educational institutions have both an interest and an obligation to ensure that the Constitution is not flouted. We do not under-estimate the importance of these institutions, and indeed wish to state that in our opinion the specialized institutions and procedures we recommend will be truly effective only if they are supported by these general institutions and public opinion. It is, however, also our view [p. 15] that it is necessary to provide for bodies especially charged with enforcement of the Constitution through the resolution of disputes.
  2. One of the commonest ways to enforce the Constitution and resolve disputes is through the jurisdiction of the courts. The courts are given the power to interpret the Constitution and their rulings are authoritative and binding on other institutions. We have given careful thought to the advantages and disadvantages of a primary reliance on courts for the settlement of constitutional disputes.

110. The system of responsible government and its well recognized attributes in a parliamentary democracy such as ours, as envisaged by the Constitution, will feature prominently in my consideration and determination of whether or not the government, the NEC, was responsible and acted within the law, in the exercise of its powers under, first, s 228, and, secondly, s 187E(4) of the Constitution.


111. It is a truism that modern governments wield considerable power. And in this, they can and do become intrusive, invasive and overbearing. Whilst the crucial importance of the legislative function in modern government is well acknowledged, the growth of democracy has resulted in the legislature being overshadowed by the executive, armed with multiple functions and duties, and accompanied by all manner of discretionary powers that, in turn, necessitate increased departments and officers to discharge these. Modern executive business of government is, therefore, concerned not only with executing laws, but also with, in many cases, initiating policy to be sanctioned by the legislature.


112. Democratic constitutions are, therefore, concerned with the allocation of state power and the control of its exercise. The doctrine of the rule of law is concerned with the latter. And this doctrine is not of recent origin, bandied about by advocates of liberalism and liberal democracy. Ancient Greeks knew about it, such that Aristotle was able to state that ‘the rule of law is preferable to the rule of any individual’. Taken in its broadest sense what this means is that people should obey the law and be ruled by it. But in political and legal theory it has come to be read in a narrower sense, that the government shall be ruled by the law and subject to it: J Raz, The Rule of Law and its Virtue (1977) 93 LQR 195 – 202.


113. The oft-uttered phrase: government according to law means that the executive or any civil authority or government official cannot (or should not) exercise a power unless such exercise of it is authorized by some specific rule of law, and remain within the parameters of that rule. This supremacy of the rule of law is sometimes described by the term constitutionalism, a notion of government with limited powers. It means and demands that the exercise of powers of government shall be conditioned by law and that the subject shall not be exposed to arbitrary will of his ruler: Wade and Phillips, Constitutional Law, 7th edn; (Longmans, 1965, p.60). Constitutionalism, in seeking to limit the powers of the government and protect the rights of the governed, has defined the executive arm of government, and confined it within proper grounds. As to the dimensions of the control of the executive to protect human rights, in the PNG context, see the useful discussion by APW Deklin in "Control of the Executive", in Pacific Constitutions (supra, pp. 173 – 187).


114. Unlike in the United Kingdom constitution, the concept of rule of law does not have to be reconciled with the doctrine of parliamentary supremacy under the Papua New Guinea (PNG) constitution. As we shall see in due course here, no such doctrine exists under the PNG Constitution, where all institutions and governmental bodies, all other laws, are subject and subordinated to the supreme law of the land, the Constitution, which declares:


11. Constitution, etc., as Supreme Law.


(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.


(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.


(emphasis supplied)


115. We have, therefore, a Supremacy of the Constitution that guides (or ought to guide) and conditions the exercise of the powers of the People through the three (3) arms of government.


Structure of Government


116. Subject to and in accordance with this Constitution, the power, authority and jurisdiction of the People shall be exercised by the National Government: s 99 (1). Under sub-section (2), the National Government consists of three principal arms, namely:-


(a) the National Parliament, which is an elective legislature with, subject to the Constitutional Laws, unlimited powers of law- making; and
(b) the National Executive; and
(c) the National Judicial System, consisting of a Supreme Court of Justice and a National Court of Justice, of unlimited jurisdiction, and other courts.

117. And sub-section (3) provides that: in principle, the respective powers and functions of the three arms shall be kept separate from each other. With respect, the applicability of this theory of separation of powers was succinctly explained in the judgment of Kearney DCJ in the Supreme Court Reference SCR No. 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 at p. 134, where his Honour said:


... It is clear from its structure that the Constitution contemplates a general separation of powers between the three principal arms of government – the legislature, executive and judiciary; see the Constitution s 99. As a parliamentary system with an executive responsible to Parliament, the separation of powers between the arms cannot be rigid. But the separation principle remains of basic importance in the Constitution and prohibits incursions by one arm of government upon basic functions of another.


"In principle" is defined by Sch. 1.6 of the Constitution in the following way:


Sch.1–6 - Statements of General Principle.


Where a proposition of a Constitutional Law is expressed to state a proposition "in principle", then –

(a) an act (including a legislative, executive or judicial act) that is inconsistent with the proposition is not, by reason of that inconsistency alone, invalid or ineffective; but
(b) if the act is reasonably capable of being understood or given effect to in such a way as not to be inconsistent with the proposition it shall be so given effect to.

118. In no constitutional state is it true to say that the legislative and executive functions are in precisely the same hands. The strict application of the theory means not only that the executive shall not be the same body as the legislature but that these two bodies shall be isolated from each other, so that the one shall not control the other. Any state which has adopted and maintained this doctrine in practice in its full force has an executive beyond the control of the legislature. Such executives are called non-parliamentary or fixed.


119. Ours is a parliamentary executive consisting or composed of ministers in a Cabinet system of government dependent for its existence on the legislature of which it is a part, the ministers being also members of the legislature. And, as will be discussed here, the Constitution goes beyond just vesting the traditional "law-finding and law-application" functions of the superior courts. Vested are also law-making powers: s 20, s 21 and s 60, Sch 2.3 – development of the underlying law (see: BB Sakora, "Judicial Law-making", in Peter Sack (ed): Pacific Constitutions, RSSS, ANU, 1982, pp. 257 – 270).


120. The dual functions of interpreting and applying provisions of the Constitution (s 18 and s 19) involve and entail the Supreme Court in, as well as its supervisory and controlling powers over exercise of both legislative and executive powers, legislative function. When a prospective law is pending or is being introduced into Parliament as a Bill, and is determined by the Supreme Court, upon constitutional challenge, to be unconstitutional and, therefore, invalid, the intended law is "defeated" as if it failed to pass on the floor of Parliament. Similarly, if the validity or constitutionality of an existing legislation (or subordinate enactment) were challenged and the Supreme Court declared it to be in breach of the Constitution. But the result would be a "repeal" of that law as if done on the floor of Parliament (see: BB Sakora, supra).


121. And if constitutional challenges are mounted, as in the instant case, as to the validity of a certain decision taken by the government in purported exercise of powers under the Constitution, or ministerial discretion under ordinary statute, this Court is empowered to entertain and determine.


122. Subject always to the Constitution, the legislative, executive and judicial powers of the People are vested in the National Parliament, the National Executive and the National Judicial System: s 100, s 138 and s 158 respectively.


Emergency Powers


123. The CPC was very much alive to, first, the need for the Constitution to have in place specific and well defined powers to be availed of by the executive in times of emergency, and, secondly, the inherent temptation to use these " powers arbitrarily without regard to the fundamental rights and freedoms of the people. Sometimes too, governments use such powers to undermine opposition parties and their leaders without justification": CPC Report (Ch. 5 Part 2 p.1, par (4). The Committee acknowledged that:


In every country there are times of great national crisis or emergency due to war, very serious civil disturbances such as organized attacks on many government officers, or natural disaster, such as a famine, an earthquake or a fire. The first and third of these situations are all too familiar to many of us, who remember the Pacific War and natural disasters such as the Mount Lamington eruption in 1951 and the Highlands’ famine in 1972 ( ibid).


124. Then it proceeded to set down what it described as important underlying principles to guide the exercise of these powers. It is appropriate and instructive that these ten (10) principles be reproduced, and I do so hereunder as follows:


Underlying principles


5. In the proposals which follow, we have adopted a number of important principles, namely that –


(i) The introduction and continuation of emergency powers should be subject to effective and regular parliamentary control.


(ii) Emergency powers legislation should be treated in the context of human rights provisions of the Constitution.


(iii) The emergency authorized by law should involve limiting the normal legal protection of the rights and freedoms of citizens only to the extent that is necessary to deal with the particular circumstances of a given emergency.


(iv) Such powers should not, except in extraordinary circumstances which are recognized as such by the great majority of members of parliament voting in favour of a suspension of the relevant protective provisions of the Constitution concerning personal liberty and protection of law, include the power to detain a person without trial.


(v) A heavy onus rests on the Government of the day to clearly establish that the conditions in fact exist which make necessary the authorization of the use of any particular power.


(vi) Effective safeguards against abuse and ever use of emergency powers should be provided in respect both of the introduction of each individual power and of its exercise.


(vii) Any legislative limitation of the ordinary right of the individual to protection of his personal liberty should be balanced by the provision of special procedures to ensure that persons are not deprived of their liberty without sufficient cause that they are not held for an unreasonable long period without being tried, and that compensations is given to those who are improperly detained.


(viii) As far as possible, emergency powers and procedures in relation to detention without trial should be seen to be distinguished from ordinary powers and procedures. In particular, it is generally preferable that members of the judiciary be not asked to render and take tasks the performance of which may well jeopardize public confidence in the impartiality and fairness of the ordinary institutions of justice.


(ix) Emergency legislation should apply only to emergency situations, and statutory instruments made under that legislation should apply only to a particular State of Emergency, and cease to have effect when that State of emergency ends.


(x) Action taken under emergency legislation should be subject to scrutiny not only in relation to the statutory powers under which they may be authorized, but in respect of the actual situation in the context of which they are taken (ibid).


125. The concerns of the CPC and the guiding principles they adopted are very much reflected in the Constitution. An entire "Part" (Part X ) is devoted to Emergency Powers, covering s 226 to s 246. Commencing with matters of definition, the provisions cover: periods of declared national emergency; parliamentary supervision and control; internment; and, extension of tenure of parliament and governor-general. These are intended to cover emergency situations envisaged by s 226, which is in the following terms:


In this Part, unless the contrary intention appears –


"declaration of national emergency" means a declaration under Section 228 ( declaration of national emergency);

"emergency" includes, without limiting the generality of the expression –


(a) imminent danger of war between Papua New Guinea and another country, or of warlike operations threatening national security; and

(b) an earthquake, volcanic eruption, storm, tempest, flood, fire or outbreak of pestilence or infectious disease, or any other natural calamity whether similar to any such occurrence or not on such an extensive scale as to be likely to endanger the public safety or to deprive the community or any substantial proportion of the community of supplies or services essential to life; and

(c) action or immediately threatened, by any person that is of such a nature, and on so extensive a scale, as to be likely to endanger the public safety or to deprive the community or any substantial portion of the community of supplies or services essential to life;

126. The circumstances described by the CPC became paragraphs (a), (b) and (c) under s 226 (supra). The definition of "emergency" and "period of declared emergency" in s 226 reflect " fairly accurately the proposals of the CPC (CPC Recommendations 5.2.1) including the rather vague phrase ‘likely to endanger the public safety’, which, it appears, confers a fairly wide discretion on those responsible for declaring or extending a state of war or emergency ": Goldring, supra, p. 251. However, the learned author opined that if the courts took note of the interpretative directions contained in s 22 and s 24, the expression would be construed according to the maxim ejusdum generis, which means that only those events which are sufficiently similar in nature to the type of events specified in the remainder of the definition will be found to be likely to endanger the public safety, which are the subject of paragraph (b) of the definition.


127. Whilst paragraph (c) of the definition also contains the expression "likely to endanger the public safety", I respectfully agree with the learned author that different problems are envisaged here, and, therefore, that expression is not, in this context, susceptible to the ejusdum generis construction.


128. What is meant by emergency that can assist us to understand and appreciate those situations enumerated under s 226, apart of course, from the help that we derive from the CPC Report and useful texts directly on our Constitution such as the one from Goldring (supra)?


129. Emergency is defined as "an unexpected and dangerous happening which must be dealt with at once": Longman Dictionary of Contemporary English. In the Dictionary of Government and Politics (Peter Collins Publishing, 1988), the term is defined as a "dangerous situation where decisions have to be made quickly". And at the extreme end, it envisages a situation so dangerous that a government decides to and has declared a state of emergency giving special and extraordinary powers to the police and the army to run the country. In other less dangerous situations, certain of these special powers granted by law either to the government as a whole or a specific minister of state are invoked to deal with the emergency.


130. In his introduction to his very useful and authoritative text Emergency Powers (LBC 1984), Professor H P Lee stated:


In the life of every nation there will arise occasions when peace and tranquillity will be disrupted by natural or economic disasters or threatened by internal dissension or external aggression. Unless effectively contained such aberrant conditions will reach such a critical stage that a nation’s constitutional and legal framework is shattered.


131. Thus, these "aberrant conditions" create exceptional times for a nation that necessitates the use and deployment of exceptional powers to address the emergency. The learned professor then sets about a conspectus of the crises or emergencies by various countries to illustrate the point that: no matter how highly stable a country professes itself to be, it can never be totally insulated from aberrant conditions. It is further noted that such aberrant crises have been experienced at one time or another by developed as well as developing countries. Examples such as the racial conflagration that erupted in Malaysia in 1969, and the outbreak of war between India and China in 1962, prompted declarations of emergency in both countries to, first, resort to special powers to contain the situation, and secondly, to marshal the national resources to counter the perceived threat to national survival by placing the entire country in a state of emergency, respectively.


132. Lord Dunedin observed when delivering the "advice" of the Privy Council in Bhagat Singh & Ors. v The King Emperor, A. I. R 1931 P C 111, that


A state of emergency is something that does not permit of any exact, definition: it connotes a state of matters calling for drastic action...


133. And Lord MacDermott, delivering the advice of the Privy Council in Stephen Kalong Ningkan v. Government of Malaysia [1968] 2 MLJ 238 at 242, observed that the natural meaning of the word itself is capable of covering a very wide range of situations and occurrences, including such diverse events as wars, famines, earthquakes, floods and collapse of civil government.


134. In more recent times, the various emergencies in some developed countries as a result of threats of or actual terrorist attacks ( New York/US, Madrid/Spain and London/the UK) illustrate the need for emergency powers. Similarly the natural disaster of Cyclone Katrina that hit and flattened New Orleans.


135. My brother Injia DCJ, whose draft I have had the benefit of reading, discusses definitions of emergency with helpful references to judicial opinion and international conventions on the subject of "emergency powers". I respectfully adopt these.


136. Under a number of Commonwealth constitutions which, like that of PNG, give power to the Executive to proclaim a state of emergency, derogation from certain guarantees of fundamental rights is permitted but only to the extent "reasonably required" or "reasonably justifiable" for the purpose of dealing with the emergency situation. In the Pacific constitutions, it would appear that only PNG, Belau and Vanuatu provide for continuing parliamentary supervision and control. As noted elsewhere here, PNG has a fairly elaborate provision for supervision and report by a parliamentary committee (Part X, Division 4). All Pacific constitutions require early meetings of the legislature, and, as noted already in respect of PNG, there are provisions for the continuation of the tenures of the parliament and the governor-general respectively to deal with the emergency situation.


137. Professor Yash Ghai, a consultant to the CPC, described the grounds upon which emergency can be declared under the PNG constitution as being elaborate, in comparison with the constitutions of, for example, Solomon Islands, Fiji, Tuvalu and Kiribati which do not specify grounds, and defined "emergency" to include imminent war or "warlike operations threatening national security"; natural calamity or disease or threatening action by any person of so extensive a scale " as to be likely to endanger the public safety or to deprive the community of supplies or services essential to life ": Yash Ghai & Jill Cottrell, in Heads of State in the Pacific – A Legal and Constitutional Analysis, Institute of Pacific Studies, USP (1990 p. 186). This is s 226. And the basic effect of the declaration or proclamation of a state of emergency, he says, is to enable the executive or legislature to override various provisions of the constitution and the law.


138. It is noted that, as well as various national constitutions recognising the need to have in place provisions catering for "emergency powers", various international covenants and conventions also acknowledge this. One such convention is the European Convention on Human Rights which, under Article 15, expressly permits a member State to take measures derogating from the obligations under the Convention "in times of war or other public emergency threatening the life of the nation ". Another is the International Covenant on Civil and Political Rights (promulgated in 1966) which, under Article 4 clause (1) reads as follows:


In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the State Parties to the present Convention may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the grounds of race, colour, sex, language, religion or social origin.


139. In the foregoing discussions were intended, with respect, to lay the foundation, as it were, for a consideration of the issues before us.


140. The case for the plaintiffs/applicants is that the circumstances or factors envisaged as properly forming the basis for (and justifying) the declaration of the state of emergency and the purported consequent suspension of the SHPG were not present upon which the NEC could properly have formed the opinion that it is required to do, on 16 June 2006, and advise the Governor-General for his declaration on 1 August 2006 pursuant to s 228 of the Constitution (supra). Therefore, it is contended, the subject declaration and suspension were invalid as being done or undertaken in breach of the Constitution. The plaintiffs seek orders declaring accordingly.


141. The respondents, contending to the contrary and asserting due compliance with the requirements of the Constitution, raise two preliminary issues challenging the locus standi of the plaintiffs to come to this court in the way they have, and the jurisdiction of the court to entertain their grievances. With respect, these preliminary challenges betray a woeful lack of appreciation of the constitutional scheme under which the government of the day is intended to function. The very nature of the powers the NEC purportedly relied upon to bring about the result it desired, and the settled law on this, ought to have put an end to any such challenges at the outset. As it is, the persistence of the defendants/respondents with what really are indefensible challenges, necessitates a brief restatement of the pertinent principles of law on these. The first point that has to be made before dealing with these preliminary issues is that this is no ordinary litigation that is before us. This is a constitutional challenge to the purported exercise of the executive powers of The People pursuant to s 18 of the Constitution (supra).


Locus Standi


142. The Osborn’s Concise Law Dictionary defines "locus standi "as the right to be heard in court or proceedings. This Latin maxim which literally means "a place of standing or a place to stand" connotes the right to bring an action or challenge some decision: The Oxford Dictionary of Law. Constitutional Law being a public law, the doctrine of this law that is designed to regulate and to limit the powers of the executive is known as the rule of law (supra). And to seek the various reliefs or remedies recognized as being available under this law, an applicant must demonstrate that he has standing to do so. An applicant will have standing if he has a sufficient interest in the matter to which his application relates. In civil litigation, the National Court Rules (NCR) envisage proper parties (both plaintiffs and defendants) coming to court with demonstrated proper causes of action to seek the reliefs or remedies of the court. The court will only have jurisdiction to grant relief if the applicant does have standing or the plaintiff (in a civil action) has a proper cause of action.


143. The purpose of having standing in public law, as here, is to ensure that mere busy-bodies, cranks or mischief-makers do not waste the time and resources of the courts with unmeritorious and/or fictitious applications. There is also the need to ensure that executive/administrative decision-making and actions are not hampered or prejudiced by such interruptions and interferences.


144. In relation to constitutional challenges such as here, the issue of standing to invoke the provisions of s 18 of the Constitution was settled as long ago as 1981 in the seminal decision of the court in The Somare Case [1981] PNGLR 265. I respectfully adopt the learned Chief Justice’s discussion of that decision, and the restatement of the principle of the underlying law that had to be formulated, pursuant to Schedule 2.3, which is that a citizen has standing to bring proceedings involving matters of constitutional law.


145. In an attempt to, in my opinion, defend the indefensible on the issue of standing in constitutional litigation, the respondents threw in what can properly be characterized as a red herring: the Attorney-General and Relator Actions, under the Attorney-Generals Act (s 7). I agree with the Chief Justice that s 7(c) of this legislation did not displace nor change the law as "developed" by the Supreme Court pursuant to Schedule 2.3 of the Constitution in the Somare Case. The provision merely restates the resultant underlying law on the subject.


146. In the English system, a person or body claiming to be entitled to, for instance, restrain interference with a public right; to abate a public nuisance or to compel the performance or observance of a public duty, may bring such an action only if he obtains the consent of the Attorney-General. Otherwise, it is the Attorney-General who would be the proper person/party to bring such an action. See: Order 15 rule 11 of the Rules of the Supreme Court (RSC) (UK). The 1977 House of Lords decision in Gouriet v. Union of Post Office Workers [1977] UKHL 5; [1977] 3 WLR 300, enunciated the principle that the Attorney-General is the only person recognized by English public law as entitled to represent the public in a court of justice, and the court accordingly has jurisdiction to declare public rights only at the suit of the Attorney-General acting ex officio or ex relatione, that is, on the relation of a private individual in what is called a "relator action".


147. I might have had perhaps a momentary interest in Mr Lambu’s submission on relator action if he had appeared to represent (or to have the Attorney-General joined to represent) the "public interest" in this constitutional challenge. The fact of the matter is that he appears to challenge the challenge, representing the interests of the government, the NEC, which made the decision to use these extraordinary powers with the serious consequences that this entails. In any case, I am not aware of any "relator actions" instituted by the Attorney-General on behalf of the public either to protect, promote, or preserve the "public interest ", neither before nor since the enactment of the Attorney-General Act. And it is a matter of public knowledge that there have been a host of controversies in recent times that he would have availed of the opportunity to represent the "public interest ".


148. The SHPG, Governor Nipa Hami Yawari, and all the presidents and chairmen of constituted LLGs have standing to come to court as they have done, invoking s 18 of the Constitution. They all have an interest, a direct and intimate, interest in the subject-matter of the application. The presidents and the Governor are duly elected representatives of, first, all the people in their respective LLG areas, and, secondly, the entire province respectively. As such, under our parliamentary representative democracy the people would have a legitimate expectation that they would ensure the provision of goods and services in critical need. The very fact that the provincial government was suspended in purported exercise of state powers under a declared state of emergency, and not the LLGs as well, would undoubtedly have had and continuing to have, a detrimental and prejudicial effect on the operation of those LLGs. Because the LLGs depend on the SHPG for their very existence in this hierarchical system of devolved government, and, thus, the presidents continue to be members of what is now a suspended inert provincial government, magnifies the problems for them.


149. Therefore, it is not as if these plaintiffs/applicants are mere meddlesome busy-bodies, cranks or mischief-makers who have nothing better to do than come to court with unmeritorious, frivolous and vexatious claims that have no remedies known to law. Their proceedings involve issues of serious constitutional matters.


Jurisdiction


150. There is no merit at all in taking issue with this court’s powers under the Constitution in relation to questions of constitutional interpretation and application. Earlier discussions on the scheme of the constitution, and the nature and structure of executive government sufficiently, in my opinion, demonstrate the jurisdiction of the court. This is another so-called preliminary issue that ought not have been raised. The Chief Justice deals with this very briefly in his judgment, as it deserves to be, and I am in full agreement with what his Honour says. There is, therefore, no need to belabour the point. This court has jurisdiction, to the exclusion of all other courts and tribunals, to hear and determine matters of constitutional interpretation and application. That is what the CPC intended, that was what was provided for in the supreme law of the land, the Constitution (see preceding discussions).


151. This application involves and entails this court reviewing the exercise of State powers by the NEC. Pursuant to s 18 of the Constitution, this "review" that involves and entails once again interpretation of a constitutional provision to determine whether the facts, if any, apply to what is envisaged and expected by the provision, is also engaging the court in " statutory construction". We are thus concerned with construing s 226 and s 228 to determine their meaning and scope.


152. Other review jurisdictions of the Supreme Court are vested by s 155 (2) (b) and (4) of the Constitution. Similarly, the jurisdictions of the National Court: s 155 (3) (a) and (4). These concern the exercise of inherent powers to review the judicial acts of inferior courts and tribunals respectively.


153. And in relation to public bodies or authorities, the courts will review an exercise of power to ensure that: no error of law has been committed; all relevant factors have been considered, and not taken into account irrelevant or extraneous factors; has acted for a purpose expressly or impliedly authorized by law or a specific provision of constitutional law; has not acted in a way that is so unreasonable that no reasonable public body would act in that way (the "Wednesbury Principles"); the public body has observed statutory procedural requirement and the principles of natural justice or procedural fairness.


154. Another of the preliminary matters that ought seriously not have been raised by the counsel for the respondents was "justiciability" during the course of arguments on jurisdiction. The learned Chief Justice has dealt with this issue and I am in agreement with his Honour’s conclusion. If a particular act or decision undertaken in the exercise of powers is to be precluded from judicial review for a good reason, the particular constitutional provision will contain the express preclusion or exception. My search of the constitutional document revealed about 28 provisions that were expressed to be "non-justiciable". Sections 226, 227, 228, 229, 230 to s 246 (inclusive) dealing with "emergency powers" do not have the epithet of "non- justiciability" attached to them.


Onus of Proof


155. I am once again indebted to the learned Chief Justice for his discussion of this issue, and I respectfully concur with his conclusion. In my earlier discussions on the concerns harboured by the CPC about such extraordinary powers in the hands of the executive, and the proposals it came up with for proper supervision and control of the exercise of such powers, it was obvious that the Committee expected the onus to be borne by the executive government. Thus the onus on the executive is a very onerous one, to demonstrate to the satisfaction of this court that the factors and circumstances envisaged by s 226 of the Constitution do exist to resort to those special and extraordinary powers to deal with the situation. And this, in my opinion, would have to come from facts, credible and admissible evidence.


156. It is the State, the executive government that relies on constitutionality, validity, of its opinion and action pursuant to s 228 of the Constitution. Incumbent upon the State, therefore, is the onerous burden of demonstrating validity, constitutionality. See: Underlying Principle 5 (v) (supra). That has to involve clearly establishing that "the conditions in fact existed which make necessary the authorization of the use of any particular power.


Evidence


157. I am in total respectful agreement with both the Chief Justice and the Deputy Chief Justice in their respective conclusions that there was no evidence upon which the NEC could rely on to act as it did. Statement of Agreed Facts filed by counsel is no substitute for facts to be properly pleaded and evidence produced to give substance to these. Mere assertions are no substitute in the context of the powers intended to be used. Matters of administrative inefficiency or ineffectiveness, widespread lawlessness, financial mismanagement and abuse and corrupting of State powers are matters that can properly be dealt with under ordinary laws of the country. In my opinion, all those administrative and financial deficiencies and shortcomings that the NEC appeared to have relied on had and have their remedies in the various ordinary laws that were ignored or not enforced effectively and professionally, or indeed at all. And obviously over time these problems, these ills, naturally grew and multiplied.


158. The State does not need a State of Emergency to attend to these administrative, financial and associated deficiencies and shortcomings. The State only needs to enforce existing laws, and effectively administer policies. Thus, the State does not need emergency powers to ensure goods and services are provided to the people that they are duty bound to provide to.


159. There was, therefore, no valid, legitimate, basis for invoking those extraordinary powers. This, in my opinion, constituted a breach of the Constitution, simply because there was a non-compliance with the requirements, which could properly be characterized as prerequisites for exercise of such powers.


160. Other issues or questions for this court’s determination having, with respect, being answered in my foregoing discussions, it only remains for me to answer the last two, and I do so as follows:


  1. No situation of emergency as defined and envisaged existed or was imminent at the time the NEC formed its opinion to invoke the provisions of s 228 to advise the Head of State to declare a state of emergency in the Southern Highlands.
  2. The declaration of a state of emergency being undertaken contrary to the Constitution, the subsequent extension by Parliament was an exercise of power by that authority based on an unconstitutional exercise of powers by the NEC, the executive, are, consequently invalid.

161. Orders of the Court:


  1. The declaration of State of Emergency by the Head of State on 1 August 2006 under s.228 of the Constitution and extended by the Parliament under s.239 of the Constitution and which lapsed on 22 February 2007 is declared invalid.
  2. The suspension of the Southern Highlands Provincial Government under s.187E(4) of the Constitution following the said declaration of State of Emergency is declared invalid.
  3. That the Southern Highlands Provincial Government be reinstated office forthwith.
  4. Costs is reserved.

__________________


Tamutai Lawyers: Lawyer for the Plaintiffs in SCOS No 3 of 2006
Ame Lawyers: Lawyer for the Plaintiffs in SCOS No 4 of 2006
Henaos Lawyers: Lawyer for the Speaker of National Parliament
Solicitor-General: Lawyer for the State and National Executive Council
Naru Lawyers: Lawyer for Third, Fourth, Fifth & Seventh Respondents in SCOS 3 & 4 of 2006 and Second Respondent in SCOS 4 of 2006
Powes Parkop Lawyers: Lawyer for Sir Matiabe Yuwi & Ors

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