N791

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

(OS 227 OF 1989)

IN THE MATTER OF THE CONSTITUTION OF THE GULF PROVINCIAL GOVERNMENT AND IN THE MATTER OF THE ELECTION OF A PREMIER OF THE PROVINCIAL ASSEMBLY

BETWEEN:

TOM KOREA
PLAINTIFF

AND:

SEPOE KARAVA
FIRST DEFENDANT

AND:

GULF PROVINCIAL GOVERNMENT
SECOND DEFENDANT

Waigani: Salika AJ
11 December 1989; 13 December 1989

PARLIAMENT - Provincial Parliament - Parliamentary Procedures - Vote of no Confidence - Validity of Election of Premier questioned - Procedure non-justiciable - Constitution of Gulf Province Section 34(2) and Section 41.

Held:

(i) 	Election procedure of Gulf Provincial Premier under s 41(4) of the Gulf Provincial Constitution is not the same as the Election of the Premier under the procedure set out in s 34(2) of the Provincial Constitution.

(ii) 	The Provincial Assembly or the Speaker may determine its own practice and procedure and Court should not interfere. James Eki Mopio -v- The Speaker of the National Parliament (1977) PNGLR 420. Kaguel Koroka -v- Philip Kapal and Others, followed.

Cases Cited:
The cases cited above are the only cases referred to.

SUMMONS

This was a summons seeking declaration as to the validity of the procedure used in electing the Premier of the Gulf Province in a motion of no confidence.
Counsel:

J. YAGI for plaintiff
L. SASU for first defendant
D. HAUKA for second defendant

13 December 1989

SALIKA AJ: This is an application by way of an originating summons seeking various declaration and orders. The plaintiff Mr. Tom Koraea until the 4th of December 1989 was the Premier of the Gulf Province. He was ousted as Premier of the Gulf Province through a vote of no confidence on that day. The plaintiff has issued summons seeking:-

1. 	A declaration that the undated notice of motion of no confidence signed by Messrs Daniel K. Meara, Robert H. Meara, Leo Kavava, Thomas Heavo and Riddler Kimave was invalid on the ground that it was not given within 14 days as required under s 41(1)(b) of the Constitution of the Gulf Province.

2. 	A declaration that the motion of no confidence passed on the 4th of December 1989 in the Gulf Provincial Assembly against the him as the Premier was contrary to the provision of Sections 34(2) and 41(1)(b) of the Constitution of the Gulf Province and was therefore void and of no effect.

3. 	An order that the purported election of Sepoe Karave the first defendant as the Premier on the 4th of December 1989 was null and void and that he is not duly elected.

4. 	An order that the plaintiff was at all material times since the 4th of December 1989 is still the Premier of the Gulf Province.

5. 	A declaration that the purported decision actions and exercise of powers by Mr. Sepoe Karava and his newly appointed executive members as of the 4th of December 1989 is null and void and therefore be set aside.

The plaintiffs arguments are based on the provisions of s 34(2) and s 41(1)(b) of the Constitution of the Gulf Province.

Section 34(2) reads:-

"The Premier shall be a member of the Assembly and subject to s 41(4) (motions of no confidence) shall be elected by secret ballot by the Assembly at the first meeting of the Assembly after a general election and otherwise from time to time as the occasion for the appointment of a Premier arises."

Section 41(1)(b) reads:-

"For the purposes of subsection (3) and Sections 34 (the Premier) and 37 (normal term of office of Executive Members) a motion of no confidence is a motion of which not less than 14 days notice in writing, signed by not less than five elected members of the Assembly, has been given in accordance with the standing orders."

The plaintiff deposed in his affidavit dated and filed on the 11th of December 1989 that a notice of motion of no confidence against him was read out on the 19th of September 1989 in the Provincial Assembly in its meeting. He further deposed that the motion was neither debated nor moved at that sitting because it did not comply with the 14 days required under s 41(1)(b) of the Gulf Provincial Constitution.

In September the Assembly adjourned to the 4th of December 1989 at 2-00 p.m.

On the 4th of December 1989 as soon as the members took their seats the Speaker announced the vote of no confidence. The leader of government business raised a point of order about the manner in which the motion was called but the Speaker ruled the point of order out of order. A brief statement was read out on the motion of no confidence and a vote on the head count was taken. Mr. Sepoe Karava was declared winner with 15 votes.

At the hearing counsel for the plaintiff did not argue s 41(1)(b) of the Provincial Constitution so I assume that ground is abandoned because when counsel for the first defendant queried whether that ground had been abandoned there was no reply from the plaintiffs lawyer.

The plaintiff however argues strongly the provisions of s 34(2) that the Premier can only be elected through a secret ballot and not in any other manner. He contends that the head count of members during the motion of no confidence was contrary to the procedures laid down by s 34(2), thus the election of Mr. Sepoe Karava was null and void.

First let me say this at the outset that Mr. Karava was elected Premier through the procedures under s 41 of the Provincial Constitution, that is through a no confidence motion.

Upon reading of the Gulf Provincial Constitution under s 34(2) the Premier:-

(a) 	shall be a member of the Assembly and subject to s 41(4);

(b) 	shall be elected by secret ballot by the assembly at the first meeting of the Assembly after a General Election and otherwise from time to time as the occasion for appointment of a Premier arises.

This means that the Premier can also be elected through the s 41(4) process. The words "subject to s 41(4)" in this instance means there is an exception to the general provision of s 34(2) that the Premier is to be elected by secret ballot by the Assembly. That exception is the process of a motion of no confidence under s 41(4) of the Gulf Province Constitution. The process under s 41(4) is that where a motion of no confidence in a Premier is moved and that motion is passed then the person nominated as the then the person nominated as the alternate Premier becomes the Premier upon passing of the motion in accordance with the procedures under s 41 itself. The procedure under s 41 does not include vote by secret ballot, indeed it does not provide how counting in the vote of no confidence should be conducted. Mr. Karava became Premier under the provisions of s 41 of the Gulf Constitution and should not be confused with s 34(2).

Because s 41 does not provide how counting in the vote of no confidence is to be done the Assembly, or the Speaker may determine its own practice and procedure and the Court should not interfere. (Refer to James Eki Mopio -v- The Speaker of the National Parliament [1977] PNGLR 420 and kaquel Koroka -v- Philip Kapal [1985] PNGLR 117). It is not the Courts duty to impose any procedures the Provincial Parliament should follow.

I accordingly refuse the applications sought.

Applications dismissed.

Lawyer for the Plaintiff: Kirriwom & Company Lawyers
Lawyer for the First Defendant: Leo Sasu
Lawyer for the Second Defendant: Hulape Dennis Hauka