[1999] PNGLR 45

PAPUA NEW GUINEA

[national court of justice]

KAI DAIMA – president for kutubu local-level government

V

DON ROMANONG – provincial administrator for southern highlands province;
DABURA KAMUNA – deputy provincial administrator for southern highlands province;
SOGI KUBURU – former vice president of the kutubu local-level government; and
NELSON TAMI

waigani: kapi dcj
22 September 1998; 19 March 1999

local level government – Local-level Governments Administration Act 1997 – Vacancy in Office of President – No provision for Acting President.

Facts

The plaintiff Mr Kai Daima was unanimously elected as President of the Kutubu Local-level Government Council on the 16th June 1998 and on the 17th June 1998 he was sworn in.

A dispute arose as to whether the plaintiff was validly elected as President. In an originating summons the plaintiff seeks declaratory orders:

(1)	That the meeting convened by the Councillors of the Kutubu Local-level Government Council on 16 June 1998 whereby the plaintiff was elected as President of the Kutubu Local-level Government was properly conducted and is legal under the Local-level Government Administration Act and the Organic Law on Provincial and Local-level Governments.

(2)	That the plaintiff is the duly elected President of the Kutubu Local-level Government.

The issue before the Court is to determine what is the proper procedure under the law to fill the vacancy in the office of President.

Held

1.	To consider the relevant provisions relating to election to the office of the President of a Council and a vacancy in that office, s 5 of the Organic Law on Provincial Governments and Local-level Governments (OPLG) is considered. The Local-level Governments Administration Act 1997 (LGAA) to implement the system of Local-level Government is also considered. Section 12 of LGAA provides for the manner in which a head of a Local-level Government may be elected. The head of a Local-level Government may be elected by popular election if such a determination is made in accordance with s 234 (2) of the Organic Law on National and Local-level Government Elections (ONLGE) (see s 12 (1) (a) of LGAA). If no such determination is made, the head of a Local-level Government shall be elected amongst the members in accordance with Standing Orders of the Local-level Government (s 12(1)(b) of LGAA).

2.	There is no determination under s 234 (2) of the ONLGE and therefore the President may be elected in accordance with s 12 (1) (b) of LGAA. Under this provision, the election of the head of the Government shall be conducted in accordance with the Standing Orders. 

3.	That both counsels have agreed that no Standing Orders have been made in accordance with s 18 of LGAA. Apart from other matters, Standing Orders may provide for the calling, regulating and conducting of the meetings of the Government (s 18 (1) (a) LGAA). Section 23 of LGAA regulates meetings of a Local-level Government. 

4.	It is clear that the legislature intended that a meeting of the Government may be called in accordance with the provisions outlined. The calling of the meeting of the Government on 16th June 1998 by the District Administrator does not come within these provisions. 

5.	There is a gap in the law and the election of the head of the Government is not possible in the circumstances. Therefore, the manner in which the meeting of the Government was called in the present case is invalid and of no effect. 

6.	The orders sought in this matter were therefore declined.

Counsel

I Mileng, for the plaintiff.
P Ame, for the defendants.

19 March 1999

kapi dcj. In an originating summons the plaintiff seeks declaratory orders:

(1)	That the meeting convened by the Councillors of the Kutubu Local-level Government Council on 16 June 1998 whereby the plaintiff was elected as President of the Kutubu Local-level Government was properly conducted and is legal under the Local-level Government Administration Act and the Organic Law on Provincial and Local-level Governments.

(2)	That the plaintiff is the duly elected President of the Kutubu Local-level Government.

The orders sought are opposed. 

The background to these proceedings is not in dispute. Mr Nelson Tami was elected member for the Gena’abo Ward at the 1997 Local-level Government Elections. Following this, he was elected the President of Kutubu Local-level Government Council (Council) in accordance with the law. 

The election of Mr Tami as member for Gena’abo Ward in the Pimaga Local Government Council Area was challenged in a petition in the District Court (MP No. 541 of 1997 (DC)). On the 29th May, 1998, the District Court in Mendi declared the election of Mr Tami as member for Gena’abo Ward null and void and directed that a bi-election be held.

This resulted in the vacancy of the office of President of the Council. 

In a letter dated 1st June 1998, a total of nine (9) out of the fifteen (15) Councillors authorised Mr Jexie T. Hamabo, the District Administrator to give notice of meeting of the Council to elect the new President. 

On the same date, the said Mr Jexie T Hamabo gave notice to Councillors of a special Council Meeting scheduled for the 16th June 1998.

In a letter dated 15th June 1998, the A/Provincial Administrator wrote to Mr Jexie T. Hamabo to cancel the proposed meeting in that it was unofficial and not procedural. 

In a letter dated 16th June 1998 the A/Provincial Administrator again wrote to Mr Jexie T Hamabo pointing out that the proposed meeting was unauthorised and suggested that the meeting of the Council should be organised by the Deputy President. In the letter he advised that the proposed meeting should not proceed until the Deputy President takes the necessary steps to call a meeting as Acting President. He emphasised that if the proposed meeting went ahead, it would have no effect.

On the 16th June 1998, the proposed meeting took place and Mr Kai Daima (Plaintiff) was unanimously elected as President. He was sworn in as President on the 17th June 1998.

A dispute arose as to whether the plaintiff was validly elected as President. This application has been made to declare that the steps taken for the meeting of the Council and that the election of the plaintiff as President are proper and legal.

Counsel for the plaintiff submits that in view of the vacancy in the office of the President, the District Administrator is authorised to call a meeting of the Council. He submits that the action by Mr Hamabo comes within functions of the District Administrator under s 74 of Organic Law Provincial Governments and Local-level Governments.

Counsel for the defendants on the other hand submits that in view of the vacancy, the Deputy President, Sogi Kuburu, should act as the President and he is the only person who may be able to call a meeting of the Council under s 12(4)(b) of the Local-level Governments Administration Act 1997. He submits that the calling of the meeting of the 16th June 1998 was conducted by an unauthorised officer and therefore the election of the President is invalid.

There is no dispute that there was a vacancy in the office of the President of the Council. The issue before me is to determine what is the proper procedure under the law to fill the vacancy in the office of President. 

The system of Local-level Government is established by s 5 of the Organic Law on Provincial Governments and Local-level Governments (OPLG). The system of such Local-level Government shall be implemented in accordance with an Organic Law or an Act of Parliament (s 5 (2) of OPLG). The National Parliament passed the Local-level Governments Administration Act 1997 (LGAA) to implement the system of Local-level Government. For the purposes of the present case, it is only necessary to consider the provisions relating to election of the office of the President of a Council and the relevant provisions relating to a vacancy in that office.

Section 12 of LGAA provides for the manner in which a head of a Local-level Government may be elected. The head of a Local-level Government may be elected by popular election if such a determination is made in accordance with s 234 (2) of the Organic Law on National and Local-level Government Elections (ONLGE) (see s 12 (1) (a) of LGAA). If no such determination is made, the head of a Local-level Government shall be elected amongst the members in accordance with Standing Orders of the Local-level Government (s 12(1)(b) of LGAA).

In the present case, there is no determination under s 234 (2) of the ONLGE and therefore the President may be elected in accordance with s 12 (1) (b) of LGAA. Under this provision, the election of the head of the Government shall be conducted in accordance with the Standing Orders. Both counsel have agreed that no Standing Orders have been made in accordance with s 18 of LGAA. Apart from other matters, Standing Orders may provide for the calling, regulating and conducting of the meetings of the Government (s 18 (1) (a) LGAA).

Section 23 of LGAA regulates meetings of a Local-level Government:

"23. Meetings of a Local-level Government

(1)	A Local-level Government shall meet within 15 days of the day fixed for the return of the writs following a general election to Local-level Governments.

(2)	A Local-level Government shall meet at least once in each period of three months.

(3)	Unless otherwise provided, a meeting of a Local-level Government shall be called by the head of that Local-level Government.

(4)	A Local-level Government shall have additional meetings—

(a)	where not less than one third of the total number of members of the Local-level Government make written request to the head of the Local-level Government; or

(b)	where the head of the Local-level Government gives notification; or

(c)	in accordance with the provisions of the Standing Orders.

(5)	Unless the Minister gives written authority to the contrary a meeting of a Local-level Government shall not be held at the same time as a meeting of the Parliament or of the Provincial Assembly.

(6)	A meeting of a Local-level Government is open to the public and to representatives of the media unless the Local-level Government for a special reason otherwise resolves at the meeting.

(7)	The person presiding at a meeting of a Local-level Government may—

(a)	exclude from the meeting a person who, in his opinion, is behaving in a disorderly manner, or may require such person to withdraw from the meeting; and

(b)	call on a member of the Police Force or a Local-level Government officer to eject any such person refusing to withdraw from the meeting or any other person who is present in contravention of a resolution referred to in Subsection (6)."

Subsection (1) is not applicable. Subsection (2) regulates the regularity of the meetings but does not deal with the calling and conduct of a meeting of the Government. Subsection (3) is the applicable provision. It is subject to the introductory words "Unless otherwise provided…". That means that the law may provide for some other way of calling a meeting of the Government apart from a meeting that may be called by the head of the Government. The only other provision which makes provision for calling of a meeting is subs (4) which deal with how additional meetings of the Government may be called:

(a)	where not less than one third of the total number of members of the Local-level Government make written request to the head of the Local-level Government (subs (4) (a)) or

(b)	where the head of the Local-level Government gives notification (subs (4) (b)) or

(c)	in accordance with the provisions of the Standing Orders (subs (4) (c)).

The first two methods are not applicable in the circumstances of the present case as there is no head of Government. Unfortunately, there is no provision in the law for an acting President pending the election of a new head of the Government. The third method is of no assistance because there are no Standing Orders.

The situation in the present case is that there is no head of the Government and therefore it is impossible to call a meeting in accordance with subs (4)(a) or (b). There are no Standing Orders and therefore a meeting cannot be called under subs (4) (c).

It is clear from these provisions that the legislature intended that a meeting of the Government may be called in accordance with the provisions I have outlined. The calling of the meeting of the Government on 16th June 1998 by the District Administrator does not come within these provisions. For these reasons I cannot accept the submissions made by counsel for the plaintiff. Similarly, I cannot accept the submissions by counsel for the defendants that the Deputy President may call a meeting of the Government. There is no provision in the law which permit him to be the acting President.

There is a gap in the law and the election of the head of the Government is not possible in the circumstances. Therefore, the manner in which the meeting of the Government was called in the present case is invalid and of no effect. I would therefore decline to make the orders sought in this matter.

Before leaving this matter, I wish to make some observations as to how the difficulty posed by the circumstances in this case may be resolved. Clearly the Government must make Standing Orders pursuant to s 18 of LGAA to prevent this situation occurring again in the future. This cannot be effected immediately because there is no head to take the necessary steps set out in s 18 (2) of LGAA.

It may well be that the only way the office of President may be filled is by way of popular election as may be determined by the Head of State pursuant to s 234 (2) of ONLGE (s 12 (1) of LGAA).

The summons is dismissed with costs to the defendants.

Lawyers for the plaintiff: Paul Paraka.
Lawyers for the defendants: Philip Ame.