[1997] PNGLR 51

PAPUA NEW GUINEA

[national court of justice]

ENGA INTERIM PROVINCIAL GOVERNMENT

v

PETER PYASO;
FRANK TENGEN;
NAH TAU; and
TUMU AWALI

mount hagen: akuram j
12, 13 September 1996

Constitutional Law - Organic Law on Provincial Governments and Local-level Governments - Vote of no-confidence in head of Local-level Government - Contrary to Interim provisions of Organic Law - Section 125(1) & (2).

Facts

Peter Pyaso and his three colleagues were heads of their respective Local Government Councils in the Enga Province. Being heads of their respective Local Government Councils they assumed membership in the Enga Interim Provincial Assembly as provided for under the Organic Law on Provincial Governments and Local Level Governments. However, through a series of votes of no confidence, the defendants were removed as heads of their respective Local Government Councils and replaced by four new heads. The defendants refused to accept their removal and continued to perform their functions as members of the Enga Interim Provincial Assembly. The applicant sought certain declarations to effect their removal.

Held

1.	The head of a Local-level Government is selected upon consultation between the Open member and Provincial member in the Province and referred to the National Executive Council who then advises the Head of State to effect appointment as a member of the Interim Provincial Government established under ss 123 - s 125(1) & (2).

2.	Where the Organic Law imposes a duty or obligation it must be carried out.

3.	Where the normal administrative procedures have been complied with and a party is adversely affected due to this compliance the Court must not interfere with the administrative process.

Counsel

D. Coyle, for the applicant/plaintiff.
No appearance for defendants.

13 September 1996

Akuram J. This is an ex parte application for declaratory and restraining orders against the four defendants. The plaintiff claims in the originating summons filed on 12th September 1996 for the following orders.

1.	Declaration that Balus Pupi is the duly elected President of the Kompiam Local Government Council having replaced the first defendant by a vote of the said Council on 23 October 1995.

2.	Declaration that Aiyala Wapa is the duly elected President of the Paiela-Hewa Local Government Council having replaced the second defendant by a vote of the said Council on 24 July 1996.

3.	Declaration that Joanes Pakio is the duly elected President of the Ambum Local Government Council having replaced the third defendant by a vote of the said Council on 15 August 1996.

4.	Declaration that Yaka Maso is the duly elected President of the Wapenamanda Local Government Council having replaced the fourth defendant by a vote of the said Council on 6 September 1996.

5.	Declaration that, upon removal from their respective positions as Heads of the Local Government Council referred to in the preceding declarations, each of the first, second, third and fourth defendants ceased to be a member of the Enga Interim Provincial Assembly.

6.	Declaration that the first, second, third and fourth defendants who were previously members of the Enga Interim Provincial Executive Council ceased to be members of the said Executive Council when they ceased to be members of the Enga Interim Provincial Assembly.

7.	Order, pending suit and permanently, that the first, second, third and fourth defendants and each of them be restrained, by themselves and by their respective servants and agents, from purporting to act as or holding themselves out to be members of the Enga Interim Provincial Assembly.

8.	Order, pending suit and permanently, that the first, second, third and fourth defendants and each of them be restrained, by themselves and by their respective servants and agents, from purporting to act as or holding themselves out to be members of the Enga Interim Provincial Executive Council.

9.	Further or other orders.

10.	Costs.

However, in his notice of motion filed the same time the plaintiff moved the court for the following orders:

1.	Order pending suit that the first, second, third and fourth defendants and each of them be restrained, by themselves and by their respective servants and agents, from purporting to act as or holding themselves out to be members of the Enga Interim Provincial Assembly.

2.	Order pending suit that the first, second, third and fourth defendants and each of them be restrained, by themselves and by their respective servants and agents, from purporting to act as or holding themselves out to be members of the Enga Interim Provincial Executive Council.

3.	Order that the time for entry of this order, made ex parte in the first instance, be abridged and that this order be entered forthwith.

4.	Direct that the originating summons, notice of motion and supporting affidavit filed in these proceedings be served as soon as possible on all defendants and that the notice of motion be made further returnable on such day as the Court shall think fit.

5.	Further or other orders.

6.	Costs.

The evidence that the applicant relied on in support of the application is based on the affidavit of the Acting Governor, Danley Tindiwi of the Enga Interim Provincial Government. His evidence is basically as follows:

1.	I am the Deputy Governor of Enga Province (the "Province") pursuant to s 125(1)(d) of the Organic Law on Provincial Governments and Local-level Governments (the "Organic Law"), having been the person who occupied the office of premier of the previous Enga Provincial Government.

2.	As Deputy Governor of the province, I am presently acting as Governor of the Province in the absence of the Hon. Jeffrey Balakau, who has been suspended from office pursuant to s 28 of the Organic Law on the Duties and Responsibilities of Leadership.

3.	The matters stated herein which are within my personal knowledge are true. The other matters stated herein are true to the best of my knowledge, information and belief.

4.	Each of the first, second, third and fourth defendants was the Head of a Local Government Council in the Province and was, pursuant to s 125(1)(b) of the Organic Law, a member of the Enga Interim Provincial Assembly (the "Assembly").

5.	Annexed hereto and marked with the letters indicated are true copies of the following:

Annexure "A"	Minutes of Meeting held on 23 October 1995 – Kompiam Local Government Council;

Annexure "B"	Minutes of Meeting held on 22 August 1996 – Paiela Hewa Local Government Council;

Annexure "C"	Minutes of Meeting held on 16 August 1996 – Ambum Local Government Council;

Annexure "D"	Minutes of Meeting held on 6 September 1995 – Wapenamanda Local Government Council.

6.	By virtue of ss 14 and 128 of the Organic Law, I am the Acting Chairman of the Assembly and of the Enga Interim Provincial Executive Council (the "PEC"). By virtue of s 125(1)(b) of the Organic Law, only a member of the Assembly, may be a member of the PEC.

7.	As appears from the annexures hereto, each of the first, second, third and fourth defendants has been removed as head of the relevant Local Government Council and as such each of the defendants has ceased to be a member of the Assembly.

8.	Notwithstanding the foregoing, since ceasing to be members of the Assembly, the first, second, third and fourth defendants have purported to attend and participate in and vote at Assembly meetings and threaten to continue to do so.

9.	The assembly proposes to meet next week and the plaintiff fears that the first, second, third and fourth defendants will again purport to attend and participate in and vote at that meeting.

10.	The plaintiff seeks to preserve the integrity and good order of meetings of the Assembly without resort to physical means to prevent persons who are not members of the Assembly from interfering with and disrupting the business of such meetings.

The plaintiff therefore, seeks orders pending suit, orders in the terms of the originating summons and the notice of motion filed. The reason why Mr. Tindiwi stood in is because the Governor, Mr. Jeffrey Balakau has been suspended pursuant to s 28 of the Organic Law on the Duties and Responsibilities of Leadership.

The plaintiff is relying on s 125(1)(b) of the Organic Law on Provincial Governments and Local-level Governments. I set out ss 4, 123, 124, 125 and 128 below as they are related in relation to the powers, functions and duties of the Interim Provincial Government. Section 4 (2) is of application in the present case, that is, the "Interim Stage" of the Provincial Governments and Local-level Governments.

4.	APPLICATION.

(1)	The system of Provincial Governments established by this Organic Law applies to the Government of the National Capital District and the provisions of the Organic Law relating to Provincial Governments apply to the National Capital District.

(2)	For the period on and from the date of coming into operation of this Organic Law until the date fixed for the return of the writs following the next general election held after the date of coming into operation:-

(a)	the system of Interim Provincial Governments provided for in Sub-division V1.3.C shall apply; and

(b)	the provisions of the remainder of this Organic Law shall apply only to the extent necessary to enable the operation of the Interim Provincial Governments in accordance with Sub-division V1.3.C.

(3)	The provisions of Subsection (2) do not apply in relation to Bougainville Province and the National Capital District.

28.	ABOLITION OF LOCAL-LEVEL GOVERNMENTS.

Subject to the Constitution, a Local-level Government shall not be abolished or in any way amalgamated and its area shall not be altered, without the prior consent of the National Executive Council and of the Provincial Assembly.

29.	COMPOSITION OF LOCAL-LEVEL GOVERNMENTS.

(1)	Subject to this Organic Law, the members of the legislative arm of a Local-level Government shall consist of -

(a)	the head of the Local-level Government who shall be elected in accordance with an Act of the Parliament; and

(b)	such number of local members, representing local wards, elected in accordance with an Act of the Parliament; and

(c)	in the case of a Local-level Government in an urban area, three members of whom -

(i)	one shall be a representative of workers’ organizations nominated by the Papua New Guinea Trade Union Congress; and

(ii)	one shall be a representative of employers organizations nominated by the Employers’ Federation; and

(iii)	one shall be a representative of women’s organizations nominated in accordance with an Act of the Parliament,

appointed by the Local-level Government, and

(Paragraph (c) repealed and replaced by Amendment No. 1 Law)

(d)	in the case of a Local-level Government in a rural area, two members who shall be representatives of women’s organizations nominated in accordance with an Act of the Parliament appointed by the Local-level Government.

(Paragraph (d) added by Amendment No. 1 Law).

125.	COMPOSITION OF INTERIM PROVINCIAL GOVERNMENTS.

(1)	An Interim Provincial Government established under Section 123 which succeeds a previous Provincial Government shall comprise -

(a)	all members of the National Parliament from that province; and 

(b)	such number of -

(i)	members of the previous Provincial Government; or

(ii)	heads of Local-level Governments; or

(iii)	prominent persons,

selected in accordance with Subsection (2) and appointed by the Head of State, acting on the advise of the National Executive Council; and

(Paragraph (b) repealed and replaced by Amendment No. 1 Law).

(ba)	one representative of the urban Local-level Governments, nominated by the Papua New Guinea Urban Authorities Association, appointed by the Head of State, acting on the advice of the National Executive Council; and

(c)	three persons -

(i)	from a list comprising not less than five names of persons submitted by the Provincial Executive Council concerned; and

(ii)	appointed by the Head of State acting on the advice of the National Executive Council; and

(d)	the person occupying the office of Premier in the previous Provincial Government.

(2)	For the purposes of Subsection (1)(b), where -

(a)	the members of the previous Provincial Government are Heads of Local-level Governments, the Open member, in consultation with the Member of Parliament representing the province, shall select such number from the members of the previous Provincial Government to become members of the Interim Provincial Government; and

(Paragraph (a) repealed and replaced by Amendment No. 1 Law).

(b)	there are no Local-level Governments in an open electorate, or part of an open electorate, the Open Member shall, in consultation with the member of the Parliament representing the provincial electorate, select -

(i)	such number from the members of the previous Provincial Government; and

(ii)	any other person with high standing, from within that open electorate or part of that open electorate as the case may be, to be members of the Interim Provincial Government; and

(c)	there are Local-level Governments existing in an open electorate, and the members of the previous Provincial Government are not heads of the Local-level Government, the Open member shall, in consultation with the members of the Parliament representing the provincial electorate, select such number from amongst the heads of Local-level Governments to be members of the Interim Provincial Government. (emphasis added)

(3)	The member of the Parliament representing the provincial electorate who is not disqualified by virtue of Section 19 shall be the Interim Governor of the Province and Chairman of the Interim Provincial Assembly, unless he decides not to take up the position within 21 days from the date of the establishment of the interim provincial Assembly in which case the Assembly shall elect from among the other members of Parliament an Interim Governor of the Province who shall also be the Chairman of the Interim Provincial Assembly.

(4)	In the event that the other Members of Parliament referred to in Subsection (3) are disqualified by virtue of section 19 or are otherwise unwilling or unable to take up the position of Interim Governor and Chairman of the Interim Provincial Assembly, the members of the Interim Provincial Assembly shall elect from among their members referred to in Subsection (1) (b), an Interim Governor of the province who shall also be the Chairman of the Interim Provincial Assembly.

(5)	Subject to Subsection (5A), the Premier of the previous Provincial Government shall become the Interim Deputy Governor of the Province and the Interim Deputy Chairman unless he decides not to be a member within 21 days from the date of establishment of the Interim Provincial Assembly in which case, the Interim Provincial Government shall elect the Interim Deputy Governor of the Province who shall also be the Interim Deputy Chairman, from amongst the members referred to in Subsection (1)(b). 

(Subsection (5) amended by Amendment No. 1 Law).

(5A)	An Interim Provincial Assembly may, by a two-thirds absolute majority vote, resolve that the premier of the previous Provincial Government shall not continue to hold the offices of Interim Deputy Governor and Interim Deputy Chairman and where an Interim Provincial Assembly so resolves the premier ceases to hold such offices and the Interim Provincial Assembly shall elect an Interim Deputy Governor, who shall be Interim Deputy Chairman, from amongst the members referred to in Subsection (1) (b).

(Subsection (5A) added by Amendment No. 1 Law).

(6)	The total number of members of an Interim Provincial Government shall not exceed the total membership of the previous Provincial Government.

(7)	The remuneration, privileges and other benefits of office of the members of the Interim Government shall be as determined by the Salaries and Remuneration Commission.

(8)	The Interim Provincial Government shall determine its own procedures, quorums and number of meetings.

(9)	The Member of the Parliament representing the provincial electorate who holds a position mentioned in section 19 (1) (b) may resign that position to become the Interim Governor and Chairman of an Interim Provincial Government.

(Subsection (10) repealed by Amendment No. 1 Law).

128.	INTERIM PROVINCIAL EXECUTIVE COUNCIL.

(1)	An Interim Provincial Executive Council shall consist of -

(a)	the Interim Chairman; and

(b)	the Interim Deputy Chairman; and

(c)	the Chairman of each of the permanent committees of the Interim Provincial Executive Council; and

(d)	not less than two Open Members who are not disqualified under Section 19(1)(b) elected by the Interim Provincial Assembly.

(Subsection) (1) repealed and replaced by Amendment No. 1 Law).

(2)	An Interim Provincial Executive Council shall exercise and perform all the powers and functions of the Provincial Executive Council under this Organic Law.

(3)	For the purposes of Subsection (2), the Interim Chairman and the Interim Deputy Chairman shall exercise and perform all the powers and functions of the Governor and Deputy Governor, respectively.

(Subsection (3) repealed and replaced by Amendment No. 1 Law).

The Applicant/Plaintiff is relying on Section 125(1)(b) in that only a person that is a member of the previous Provincial Government or a head of the Local-level Government or prominent person selected in accordance with subsection 2 and appointed by the Head of State, acting on advice by the National Executive Council, can be a member of the Interim Provincial Government established under Section 123 which succeeded a previous Provincial Government.

He says that the four defendants in this proceedings, have on various dates, during various meetings of the respective Local-level Governments, were voted out of the office by the head of their respective Local-level Governments. Therefore they are not eligible to be members of the Interim Provincial Government Assembly and its Executive Council.

What Section 125(1)(b)(ii) is saying is that once the head of a Local-level Government is selected in accordance with subsection (2), the National Executive Council will then have to advise the Head of State to effect the appointment of the head of the Local-Level Council as a member of the Interim Provincial Government established under Section 123.

It is therefore Subsection (2) that has to be looked at closely. The drafting of that subsection is so poorly done that I find it very difficult to interpret its meaning, purpose or intention. However, my perception of it can be in the following terms.

(2)	For the purposes of subsection (1)(b), where -

(a)	the members of the previous Provincial Government are heads of Local-level Governments, the Open and Provincial members of the National Parliament are to consult and shall select such member from the members of the previous Provincial Government to be members of the Interim Provincial Government.

(b)	and if no Local-level Government is in an electorate, the open and provincial members shall consult and select as in 1 (b)(i),(ii) and (iii).

(c)	Where members of Local-level Governments are not members of the Provincial Government then, the open and provincial members of Parliament are to consult and select such member amongst the head of Local-level Government to be members of Interim Provincial Government.

So Subsection 2(a) says that if the members of the previous Provincial Government are members of the Local-level Government, they cannot be members of the Interim Provincial Government unless selected by the Open and Provincial members of the National Parliament upon consultation.

Subsection 2(b) says if there were no Local-level Government in the electorate then the Open and Provincial members of Parliament must consult and select -

(i)	a member from the previous Provincial Government; and

(ii)	any prominent persons within the electorate to be in the Interim Provincial Government.

Subsection 2(c) says if there is in existence Local-level Governments in an electorate, and that no previous member of the Provincial Government is head of the Local-level Government, the Open and Provincial members are to consult and select such members from amongst the heads of Local-level Governments to be members of the Provincial Government.

His Honour, Woods, J in Peter Pyaso v Balus Pupi And Kompiam Local Government Council (OS 446/95) was not faced with the problem I am faced with. In that case he was reviewing the manner in which Peter Pyaso was voted out. In doing so, he did not have to look at the s 125(1) and (2) situation, that is why he held that the vote of no confidence in Peter Pyaso was proper. The election of the new president was correct. In the present case, I am asked to make certain declarations based on similar votes of no confidence on the four defendants being removed from office. In doing so, I have to be satisfied that the procedures under s 125 (1) and (2) were properly followed. I have attempted to set out the meaning of those two subsections above. I came to the conclusion that subsection (1)(b) and subsection 2 of s 125 have not been fully complied with.

Subsection (2) sets out the procedure for selection of heads of Local-level Governments to be members of the Interim Provincial Assemblies. Under this law, only two people are empowered to say who should be members of the Interim Assembly. Once that is done, then the procedure under subsection (1) is to be followed. That is, some one in the Interim Assembly of the Interim Provincial Government is to advise the National Executive Council who then advises the Head of State to appoint the selected Councillor of the Local-level Government to be a member of the Interim Assembly. There is no evidence before this court that the National Executive Council was advised or that the Head of the State has made the following people to be members of the Interim Assembly:

1.	Palus Pupi

2.	Aiyala Wapa

3.	Yanes Pakio

4.	Yako Maso

replacing the four defendants, respectively. If we are to follow the procedure in s 125 (2), then there is no place for a vote of no confidence in the Council Presidents. That decision is with the Open Member of the National Parliament in the electorate in consultation with the Provincial member of the National Parliament. Once they have selected someone the result is transmitted to the National Minister for Provincial and Local-level Government Affairs to advise the NEC who then advises the Head of State to make the appointments under s 125(1).

I therefore, refuse the application sought in these proceedings. To make the declarations is to go against the provisions of s 125(1) and (2) the Organic Law on Provincial Governments and Local-level Governments. Where the Organic Law on Provincial Governments and Local-level Governments imposes a duty or obligation it must be carried out. Here in my view, s 125 (1) and (2) imposes a duty on the Open Members and Provincial Member of Parliament to consult with each other. They can then advise the NEC who then advises the Head of State to make the appointments for membership of the Interim Provincial Government. It is not the function of the Court to interfere with the functions of the National Members of Parliament, the NEC and the Head of State in carrying out their duties. However, Courts are duty bound to ensure that the letter of the law is adhered to.

Lawyer for the applicant/plaintiff: Pato Lawyer