CULMINACIÓN DEL PROYECTO.

During the period of the Chan Coalition, three Ministers were involved in court cases early in 1981: Mr Gabriel Bakani, the Minister for Energy, was charged with having assaulted police in Kimbe and resigned in the course of prosecution, even though he was acquitted at the end. Mr Ibne K o r , the Minister for Environment and Conservation was charged with rape and was forced to resign, even though, at the end, he too was acquitted. John Jaminan, the Minister for Health was convicted by the Wewak District Court for driving under the influence and was fined K100. Chan urged him to resign but he refused. Chan then sacked him by advising the Governor-General to dismiss Jaminan, which was done. In all three cases, Chan did not make any attempt to retain any of them as a Minister without portfolio .

The present relatively fluid situation of party affiliation within the Parliament is to some extent attributable to the tremendous attraction ministerial positions have for politicians. This leads to the so-called ’numbers-game' when it comes to voting in Parliament and the attendant uncertainty that often has caused great anxiety to the Prime M i n i s t e r . ^

Although a Minister is politically responsible for the particular portfolio assigned to him by the Prime Minister this does not confer on him any general power of direction or control unless he can point to a statutory provision conferring on him the power he claims he has. This is the result of the decision of the Supreme Court in the

72. See Ombudsman Commission, 1977:94-96.

73. See Third House of Assembly Debates, Vol. Ill, No. 32, 3127 74. Chan, 1982:2.

Bouraga's Case^ which involved the interpretation of S.148 of the Constitution

There appear to be two sources from which a Minister derives his powers, either over his particular portfolio or in relation to executive government generally. The first source is statutory. For instance, under the Organic Law on Provincial Government the Minister for Decentralisation is given certain specific powers. He has, for example, the power to revoke any previous notice he gave in which he recognised a particular group or body within a province as constituting a constituent a s s e m b l y . ^ Other Ministers also have specific powers conferred on them by legislations pertaining to their respective portfolios. The second source of power is by way of delegation from the NEC. Under the Ministers (Delegation) Act 1975 a Minister may delegate any of his powers and even sub-delegate them, provided he does this by an instrument and there is an enabling

78

Regulation made under that Act for this purpose. The 1978 amendment 79

to the Act, however, seems to suggest that this power of delegation can be conferred on a Minister only if the power the Minister

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delegates is statutory. Thus, the provisions do not cover any delegation of non-statutory powers made by the NEC to a Minister. This is covered instead by the general power of delegation afforded by S.149(4) of the Constitution. The 1978 amendment to the Ministers (Delegation) Act 1975 also empowers a Minister to delegate and sub-delegate his non-statutory functions to others by means of an

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instrument. These provisions also cover the powers of the Prime Minister.

The precise scope of Ministerial power is difficult to determine, largely because, as Greville-Smith J. has noted, there

75. [1982] P.N.G.L.R. 178. See chapter 5, post, for a full analysis of the case.

76. A more detailed analysis of the nature and scope of a Minister's powers is made in Chapter 5, post.

77. See: Organic Law on Provincial Government, S.5(l). 78. See Ministers (Delegation Act) 1975, SS.2 and 5. 79. Ministers Delegation (Amendment) Act 1978.

80. Ibid., S.2. 81. Ibid.

is virtually no case law from the courts in PNG dealing with the subject matter of limitations on the power of a Minister. ^

In some cases the Supreme Court has indicated specific limits. In O O

Premdas' Case it expressed the view that any exercise of executive power which breaches the Constitution would be subject to judicial

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review, and in Fallscheer's Case it held that the exercise of executive power involved in that case must comply with the rules of

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natural justice. In BouragaTs Case much of the Supreme Court's attention focused on the limits of ministerial power over their departments, rather than on the question of general limits to ministerial powers.

4.2.3 The Diffusion of Executive Power Within the Public Service Element a) The Powers of a Departmental Head

The most important person with whom power is shared within a Department is the Head of that Department. The basis of his powers is statutory, and this is analysed, for the sake of convenience, in the next chapter. It is opportune, however, at this point to turn to consider those ancillary arms of Government in which the Constitution vests the "right" to exercise some of the executive power, outside the Executive proper but within the government.

b) The Exercise of Executive Power by the Ancillary Arms of Government The important ancillary arms are the Public Services Commission (PSC), the Police Commissioner and the Boards of Statutory Authorities. Again, for the sake of convenience, the PSC is discussed in the next chapter. Here the respective powers of the Police Commissioner00 and the Statutory Authorities are discussed.

82. Greville-Smith J. in Fallscheer v. lambakey Okuk [1981] P.N.G.L.R. 101 at 103.

83. [1979] P.N.G.L.R. 329. 84. [1981] P.N.G.L.R. 101. 85. [1982] P.N.G.L.R. 178.

86. The position of the Police Commissioner is also considered further in chapter 5, post.

c) The Powers of the Police Commissioner

The Constitution confers on the Police Commissioner the responsibility for the superintendence, efficient organisation and control of the Police Force in accordance with an Act of the

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Parliament. That Act is the Police Force (Interim Arrangements) Act 1973 (the Police Interim A ct). That Act also confers the responsibility for the superintendence of the Force on the Commissioner. But there is some ambivalence with regard to the extent to which that superintendence is subject to political control, because the statutory provisions do not address this question clearly.

The Police Interim Act stated specifically in its original form that the superintendence of the Force by the Police Commissioner was

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subject to any direction by the Administrator who was the commandant

90

of the Force. Although the Constitution confers the responsibility 91 for the superintendence of the Force on the Police Commissioner and states that the Force is subject to the control of the NEC through a Minister, it does not expressly state that the Commissioner's responsibilities in that respect are subject to the general power of control by the NEC. But the wide ambit of S. 196(1) does suggest that the Commissioner's powers are subject to this general power of control by the NEC, except in two cases where exceptions are spelt out. The first of these is that the Minister for Police has no power of command within the Force, ^ and the second is that the performance by the Police of their function of prosecuting and withdrawing charges is not subject to any direction or control from outside. This last exception is in fact a restatement of the position of the police at common law, which was incorporated under the Police Interim Act by reference to the police powers as those of a constable at common

87. S .198.

88. See the Police Interim A c t , S.9. 89. Ibid.

90. See the Police Interim A c t , S.8. 91. See the Constitution, S.196. 92. Ibid., S.196(2).

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law. Thus, apart from the two exceptions, the power over police matters is shared between the NEC and the Police Commissioner. It is not clear, however, whether the NEC has to act through the Minister for Police on every occasion. From the implications of the Bouraga's

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Case^ the Minister certainly has no power to discipline the Commissioner, as this power lies with the N E C . ^

d) The Exercise of Executive Power by Statutory Authorities

Statutory Authorities have become an essential component of the National Government. They perform much of the executive function of providing substantive services ranging from social services to industrial and commercial undertakings.

The term Statutory Authority is used in PNG to include a variety of bodies: these include Authorities, Boards, Commissions, Corporations, Offices, Services, Tribunals, Trusts and Institutes of Learning. It is worth noting that neither statutes nor judicial decisions use the term in a technical sense. The term has emerged from an administrative and political usage which has taken the statutory basis of these bodies as the criterion that distinguishes them from Departments. But this criterion is misleading and serves no legal purpose, for there are a number of bodies that are set up by statute but do not have any of the legal attributes which the Statutory Authorities possess. For instance, the Land Transport Control Board created under the Land Transport Control Board (Change of Name) Act 1976, is merely an extension of the Department of Transport and Civil Aviation, even though it is created by statute.

Statutory Authorities may be divided into six groupings according to the activity each is assigned to perform. They include:

a) marketing Boards for primary produce; for instance, the Copra

94. See the Police Interim Act 1973, S.154; and the position of policemen as independent public officers at Common Law: see de Smith, 1981:384.