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Launa v Willie [2004] PGNC 174; N2595 (16 August 2004)

N2595


[IN THE NATIONAL COURT OF JUSTICE AT WAIGANI]


O.S. NO. 402 OF 2004


BETWEEN:


HONOURABLE PETER LAUNA MP,
MEMBER FOR SIMBU REGIONAL
-Plaintiff-


AND:


HONOURABLE ALPHONSE WILLIE, MP
MEMBER FOR KEROWAGI OPEN ELECTORATE.

- Defendant-


Waigani: Injia, DCJ
2004: August 6th, 16th


CONSTITUTIONAL LAW – Organic Law on Provincial and Local Level Governments (OLPLLG) – Provincial Governor – Provincial Member for Province - Automatic assumption of office upon election in a General election or By-Election – Automatic cessation of office of person elected to fill vacancy arising from death of Provincial Member and Provincial Governor – OLPLLG, SS.17(2), 19(1)(e),(2) & S.21.


Cases cited:
Clark (C & J) Ltd v Inland Revenue Commissioners [1973] 2 ALL ER 513.
Pupune v Makrai N1777 dated 23rd October 1998.
Richard Ayakamp v Gurigng B. v [1981] PNGLR 531 at pp. 533, 534.
SCR No. 2 of 1982; Re Organic Law [1982] PNGLR 215 at 220.
SCR No. 1 of 1982; Re Bouraga [1982] PNGLR 178 at 194.
Simeon Wai v Fr. Louis Ambane N1869 dated 18th June 1999.
Smith v London Transport Executive [1951] AC 555, ALL ER 667.


Counsel:
S. Reid for the Plaintiff
K. Naru for the Defendant


16th August 2004


INJIA, DCJ: The Plaintiff is the Provincial Member for Simbu Province in the National Parliament. He was elected to office in a by-election on 19th July 2004 following the death of the then incumbent Provincial Member for Simbu, Fr. Louis Ambane. At the time of his death, Fr. Ambane was also the "Governor" of Simbu Province, by virtue of S.17(2) of the Organic Law on Provincial and Local Level Governments ("OLPLLG"). Upon his death, on 16th June 2003, the Simbu Provincial Assembly "elected" the Defendant as the Governor of the Province. At the time of his election, the Defendant was and he still is, the member for the Kerowagi Open Electorate in the National Parliament.


Upon his election, the Plaintiff assumed office as a member of the National Parliament and has been participating in the business of the National Parliament. He has also expressed his willingness to accept the office of the Governor of the Province under s.17(2) of the OLPLLG on the basis that upon his election, he automatically assumed office as the Governor of the Province, by operation of law. The Defendant has refused to allow the Plaintiff to assume that office following receipt of legal advice to the contrary. Therefore, the Plaintiff has instituted these proceedings seeking orders inter alia, that the Defendant cease to be the Governor of the Province, and that he (Plaintiff) be declared the Governor of Simbu Province . He also seeks consequential orders.


The evidence before me consists of two affidavits of the Plaintiff sworn on 28th and 29th July 2004 respectively and the Defendant’s affidavit sworn on 3rd August 2004.


Both parties presented written submissions and made oral submissions on various issues of law only. There are no factual issues to be decided. The uncontested facts are those I have set out above.


The term "Provincial Governor" is defined by s.3 of OLPLLG as meaning "the person holding office as the Provincial Governor in accordance with S.17 or 21." Section 17(1) establishes the office of the Provincial Governor for a Province. Section 17(2) says the member in the National Parliament representing the Province ("Provincial Member") "shall be the Provincial Governor". Section 21 provides for the election of the Provincial Governor by the Provincial Assembly of a person to be the Governor in the event of a vacancy in the office of the Provincial Governor.


Two general legal issues arise for my consideration in this case. As stated by Mr Naru for the Defendant, they are:


  1. Is the Plaintiff entitled to be the Governor of Simbu Province under S.17(2) of the OLPLLG?
  2. Is the Defendant disqualified by law from continuing to hold office as Governor of Simbu by operation of Section 17(2) of OLPLLG?

It is necessary to set out SS.17, 19, 20 and 21 which I consider to be relevant, in full.


Section 17(2) of OLPLLG states:


  1. The Provincial Government –

Section 19 states:


19. Vacation of office of the Provincial Governor.


(1) If the Provincial Governor –

(2) Where the Provincial Governor is a Member of the National Parliament, other than the Member of the Parliament representing the province, he shall be deemed to have vacated the office of the Governor, if he—

(3) Where the Provincial Governor vacates his office in accordance with Subsection (1)(b) or (c), or Subsection (2)(a), (b), (c), or (d), he shall continue to hold office as a member of the Assembly, and is eligible to be re-appointed as, but does not automatically become, the Provincial Governor during the balance of his term of office in the Assembly.

(4) Notwithstanding Subsections (1) and (2), the Provincial Governor shall continue in office until the election of the next Provincial Governor.

(5) For the purposes of Subsection (1)(b)(vi), the National Executive Council may determine whether an office is an office to which that subparagraph applies.

Section 20 states:


  1. Dismissal of Provincial Governor and Deputy Provincial Governor.
(1) Subject to this section, if the Provincial Governor or Deputy Provincial Governor—

the Provincial Assembly may, by a two-thirds absolute majority vote, dismiss the Provincial Governor or Deputy Provincial Governor.


  1. The dismissal of the Provincial Governor or the Deputy Provincial Governor shall be by motion—

Section 21 states:


  1. Election of the Provincial Governor in the event of vacancy.
(1) Subject to Subsection (3),if the Provincial Governor vacates his office in accordance with Section 19(1), or is dismissed from office in accordance with Section 20, the Provincial Assembly shall, from amongst the members of the Assembly who are Members of the Parliament, elect the Provincial Governor.

(2) Subject to Subsection (3), if the Provincial Governor elected under Subsection (1) vacates his office in accordance with Section 19(2), or is dismissed from office in accordance with Section 20, the Assembly shall elect another Member of the Parliament to be the Provincial Governor.

(3) If—

(i) are appointed to any of the offices referred to in Section 19(1)(b); or

(ii) are otherwise disqualified by law,


the Assembly shall, from amongst the members referred to in Section 10(3)(b) and (c), elect the Provincial Governor.


At the heart of this dispute is the issue of whether the application of S.17(2) as S.17(2) itself says, is "Subject to" the provisions in S.19 and S.21, in particular S.19(1)(e), (2)(e) and S.21(1). The arguments raised before me centred around four (4) issues: 1) whether a "vacancy" in the office of the Governor existed under S.19(1)(e) as a result of Fr. Ambane’s


death; (2) If so, whether the Defendant’s election as the Provincial Governor under S.21(1) to fill the said vacancy was legally valid. (3) whether a Provincial Member elected in a General Election or By-Election automatically holds office under S.17(2) and if so, what happens to position of the incumbent Provincial Governor elected by the Provincial Assembly under S.21(1).


Mr Reid, for the Plaintiff submits that the overall scheme and intention of the OLPLLG is that the Provincial Member for the Province in the National Parliament, who is elected in a general election or a By- election by the people of the Province, should automatically become the Provincial Governor of the Province, unless he vacates his office by virtue of S.19(1). The death of the Provincial member and Provincial Governor is not expressly mentioned in S.19(1) because the Parliament intended that there should not be a "permanent vacancy" in the office of the Provincial Governor as a result of the death of the incumbent Provincial Governor. The intention was that there would be a "temporary vacancy" in the office of the Provincial Governor pending the election of the Provincial Member which would be filled by a person election in a By-election. In the interim, the temporary vacancy would be filled by the Deputy Governor, whose office is created by S.18. By virtue of S.14(3), S.22 and 23(3), the Deputy Governor acts as the Governor in the absence of the Governor. Upon the election of the new Provincial member, he or she becomes the Governor of the Province by virtue of S.17(2).


Mr Reid submits, in the present case, the Defendant was wrongly elected the Governor of the Province because there was no permanent vacancy to fill. Now that the new Provincial member has been elected, he should take office as the Provincial Governor. The Defendant’s election was in the first place being wrong in law, must vacate his office as his position as the Governor has become redundant by operation of law.


Mr Reid submits, it is also inconsistent with the democratic principles of government embodied in the OLPLLG that member for an Open Electorate in the National Parliament who is elected by a section of the Province should continue to hold office as the Governor of the Province, when the Provincial member elected by the people of the whole Province as their Provincial Member is sidelined.


Mr Reid submits the phrase "Subject to this Organic Law" in S.17(2) means that unless the Provincial Member is dismissed, appointed, resigns, is incapable or unfit or otherwise disqualified under any law under S.19(1), then he shall be the Provincial Governor. He should not be precluded from being the Provincial Governor when he is ready, willing and able to accept that position elected to office under S.21(1) is occupying the office.


Mr. Reid relies on the decision of Hinchliffe J in Simon Wai v Fr. Louis Ambane N1869 (18/06/99). In that case, His Honour held that the defendant automatically became the Governor of the Simbu Province after he was elected in a by-election, by virtue of S.17(2). It was mandatory that he became the Governor. Because of that, the Plaintiff who was elected by the Provincial Assembly to fill the vacancy, was deemed to have vacated the office.


Mr Naru submits that S.17(2) must be read subject to S.19(1)(e). A vacancy in the office of Provincial Governor arose by virtue of 19(1)(e), by operation of law, when upon his death, Fr. Ambane ceased to be a member of the Provincial Assembly and also ceased to be a member National Parliament by virtue of S.104(2)(g) of the Constitution.


Mr Naru submits the Plaintiff’s holding of office as the Provincial Governor under S.17(2) is not automatic as it is subject to the existence of a vacancy under S.19(2). The Defendant was duly elected by the Provincial Assembly under S.21(1) to fill the vacancy created under S.19(1)(e) which arose as a result of Fr. Ambane’s death. The vacancy so created could not be filled by the Deputy Governor because that is not expressly provided for in the OLPLLG. The Deputy Governor only acts in the situation where the Provincial Governor is temporarily absent from his office and he is unable to perform the duties of his office. To this day, the Defendant is still the Governor of the Province and unless he vacates his office by virtue of S.19(2), there is no vacancy to be filled by the Plaintiff in the office of the Provincial Governor. The proper course open for the Plaintiff is to wait for the Defendant to vacate office under S.19(2), in order to create a vacancy for him to fill, and then later move for the Provincial Assembly to elect him as the new Provincial Governor. Until the Defendant vacates office, he is entitled to continue in office until the next Provincial Governor is "elected" by the Provincial Assembly. He submits by virtue of S.19(4), the Defendant must continue in office until a new Provincial Governor is elected under S.21(1) following a vacancy created under S.19(2).


Mr Naru submits the decision in Simeon Wai v Fr. Louis Ambane (supra) was wrongly decided because the Court did not consider the phrase "Subject to this Organic Law" in S.17(2) and S.19(1) and (2) and S.21 fully.


In the alternative, Mr. Naru submits there is a Constitutional question requiring interpretation by the Supreme Court. The question is: "For purposes of the words "Subject to this Organic Law" as provided under S.17(2) of the OLPLLG where Section 19(2)(e) and Section 21(1) of the OLPLLG are both applicable, which one of these two provisions is to prevail in the particular circumstances of this case". This Court cannot conclusively interpret this question and it should be referred to the Supreme Court under S.18(2) of the Constitution for its opinion.


Mr Reid submits that there is no Constitutional question to be referred to the Supreme Court. The intention of the legislative scheme in the OLPLLG is clear – that the Provincial member of the Province should automatically be the Governor, and this Court can interpret the Organic Law, S.17(2) accordingly, and grant the Plaintiff the relief that he seeks.


In my opinion, the meaning of the words "Subject to" in a statutory provision including a Constitutional law is settled. They are words of limitation. They imply that the authority or power given in a provision is subject to the limitation expressly stipulated in the same provision: Richard Ayakamp v Guringng B. v [1981] PNGLR 531 at pp. 533, 534; SCR No. 2 of 1982; Re Organic Law [1982] PNGLR 215 at 220; SCR No. 1 of 1982; Re Bouraga [1982] PNGLR 178 at 194. Smith v Condon Transport Executive [1951] AC 555 and Clark (C & J) Ltd v Inland Revenue Commissioners [1973] 2 ALLER 513. The specific statutory provision to which the provision is subject to may be expressly stipulated in the empowering or authorizing provision, or by general reference to a particular statute as any law generally. In the present case, the phrase "Subject to this Organic Law" means the application or operation of S.17(2) is subject to, qualified by or limited by the operation of all other relevant provisions in the OLPLLG on the same subject, that is, on the subject of who is to be the Provincial Governor.


I accept Mr Reid’s submission that the whole of the relevant provisions of the OLPLLG must be considered and given a fair and liberal meaning so as to attain the intention or purpose behind the OLPLLG as a whole. It is also to be borne in mind that the OLPLLG is a form of constitutional law which is subject to the Constitution (Constitution, S.10) and relevant provisions of the Constitution, on the same subject, may be used in construing any provisions in the OLPLLG.


The intention of the Parliament in enacting the OLPLLG is clear. It was enacted to provide a government system which would foster close working relationship and co-ordinate government services to the people, between the National and Provincial Government. Hence the OLPLLG allows National members of Parliament to become members of Provincial Assemblies as well under OLPLLG. They hold office as Members of the Provincial Assembly ex officio or by virtue of their office as Member of the National Parliament representing the Province. Thus, under OLPLLG, S.10(3), upon their election in a General Election or By-Election, members of the National Parliament, by virtue of their office, automatically become members of the Provincial Assembly. Similarly the Provincial or Regional member for the Province automatically becomes the Provincial Governor, upon his election in a General Election or By-Election. Section 17(2) of the OLPLLG clearly expresses this intention and it is beyond question.


The question is at what point does the term "Subject to this Organic Law" become applicable or relevant. I accept that as S.17(2) itself says, it must be read subject to other provisions in the OLPLLG relating to the same subject which qualify, limit or restrict the incumbedent Provincial Governor from holding that office. In my view, a person elected as the Provincial Member in the National Parliament by virtue of his office as the Provincial Member, in a General Election or By-Election no doubt automatically holds office as the Provincial Governor and continues to do so, until a vacancy arises under 19(1) or S.20. Once a vacancy arises under S.19(1) or S.20, the need to fill the vacancy also arise. This vacancy situation triggers an election under Section 21(1).


In the circumstances of present case, the first important question is whether the then Provincial Governor, the late Fr. Ambane’s death resulted in a vacancy under S.,19(1). I accept that there is no express provisions in S.19(1) for a vacancy to occur as a result of the death of the Provincial Governor. On the question of whether the situation is covered under S.19(1)(e), it is my view that the latter part of S.19(1)(e), that is the Provincial Governor holding a position under S.17(2) "ceases to be a member of the Provincial Assembly or of the National Parliament" is applicable. In the absence of any specific provision in the OLPLLG providing for death as a reason for the person ceasing to be a member of the Provincial Assembly and the National Parliament, it is necessary to turn to the Constitution. There is express provision in the Constitution, in S.104(2)(g) which provides for the seat of a member of the National Parliament to become vacant "on his death." In other words, upon his death, he ceases to exist, hence he ceases be a member of the National Parliament. This fact alone should create a vacancy in the office of the Provincial Governor. In addition, he ceased to be a member of the Provincial Assembly, an office he held ex officio (as a member of the National Parliament) by operation of law. That situation is another alternative basis which should create a vacancy in the office of the Provincial Governor. Therefore, in my view, there is express provision in the second part of S.19(1)(e) for a vacancy in the office of the Provincial Governor to occur as a result of the death of the incumbent Provincial Governor. This once again is plain and beyond question.


The procedure for filling of a vacancy is expressly spelt out in S.21 of the OLPLLG. It is done through an election process. It not is intended to be filled by the Deputy Governor assuming the office in an Acting position under SS.14(3), 22 and 23(3). Those provisions deal with temporary absence of the incumbent Provincial Governor, who albeit available, is unable to perform the duties of the office. A temporary absence does not create a vacancy situation. A temporary absence is resolved administratively. The word "absence" in S.14(3) and 23(3) simply means "somebody being away from a place where he is usually expected to be" temporarily and the need for another person to "act" in his place until the person returns becomes necessary. On the other hand, the words "vacancy" means a job or position is available to be filled by another, because the person occupying the job or position is not available.


For this reason, I reject Mr Reid’s submission that Parliament deliberately left out the vacancy situation arising from the death of a Governor under S.17(2) and S.21. The person elected and holds office is not filling a temporary vacancy – there is no such thing as a temporary vacancy or permanent vacancy under the OLPLLG – a vacancy is a vacancy for all intention purposes. I accept Mr. Naru’s submission that the death of the late Governor Fr. Louis Ambane is expressly provided for in S.19(1)(e), that his death created a vacancy in the office of the Governor of the Province, which had to be filled by an election in the Provincial Assembly under S.21.


The same reasoning applies to S.19(2)(e). A person who is a member of Parliament elected under S.21(1) or (2) who dies in office creates a vacancy in the office under S.19(2)(e) which must be filled by an election held under S.21.


The second important issue is whether the election of the Defendant as the Provincial Governor was proper and lawful. In my view, for reasons I have stated above, the Defendant was duly elected under S.21(1) to fill a vacancy in the office of the Provincial Governor created by the death of the late Governor Fr. Louis Ambane under S.19(1)(e).


The third important issue is whether by virtue of the Plaintiff’s automatic assumption of office as the Provincial Governor under S.17(2), the Defendant is deemed to have vacated office as the Provincial Governor, under any of the situations in S.19(2).


In my view, the situation is clearly covered by S.19(2)(e). That is, the incumbent Provincial Governor elected under S.21(1) holds office, until he is "otherwise disqualified by law": Also see Simeon Waia v Fr Louis Ambane, supra. The phrase "otherwise disqualified by law" has a broad meaning. It is intended to cover situations not enumerately in S.19(1). It is no different from the phrase otherwise disqualified by "operation of law" from holding office as the Provincial Governor. In my view, a person elected as the Provincial Member in a By-Election or General Election, automatically assumes office by virtue of S.17(2). As a result, by operation of law, the incumbent Governor elected under S.21(1) to fill a vacancy arising under S.19(1)(e) or any of the situations enumerated in S.19(1) for that matter, is disqualified from holding office under S.19(2)(e). His disqualification from holding office comes by operation of law. In other words, the assumption of office by the new Provincial Member is automatic, by virtue of the operation of both S.17(2) and also under S.19(2)(e). In this situation, the election provision in S.21 is irrelevant or inapplicable. Also, S.19(4) which refers to an "election" under S.21, is inapplicable. The new Provincial Member cannot go through another election process in the Provincial Assembly under S.21(1), (2) or (3) because he is the Provincial Member and the Provincial Governor, having been so elected directly by the people of the entire Province. He is not an ordinary member of the National Parliament representing an Open electorate or an ordinary member of the Provincial Assembly, who has to go through an election by the Provincial Assembly to become the Governor (to fill a vacancy left by an Open Electorate Member) under the three (3) different election procedures enumerated in S.21. Indeed, there is no longer any vacancy in law, for the new Provincial Member to fill, nor should he be required to create an opportunity of a vacancy for himself, by resorting to the vacancy provisions in s.19 or any other provision in the OLPLLG or even the Standing Orders of the Provincial Assembly.


From a political and democratic perspective, this interpretation makes practical common sense. The Regional member is elected by the people of the Province whereas the other members of the National Parliament and Provincial Assembly are elected by the Open electorate – by only a fraction of the province’s population. It is the clear intention of the OLPLLG that the Regional member for the Province should become the Governor of the whole province, hence the title "Provincial Governor" in the OLPLLG. He assumes office as of right and continues to hold office unless he waives his right by accepting appointment to any of the positions in the National Government under S.19(1)(b), or decides to resign under S.19(1)(c), or is disqualified from being a Provincial Governor under any of the other situations in S.19(1). It is fair to say that when the people of the province elect their Provincial Member, they are also electing him to be their Provincial Governor, as of right. The same cannot be said of a member of an Open Electorate. Upon his election as the Provincial Member, if he chooses not to resign, etc, and he makes himself ready, willing and able to assume the office of the Provincial Governor, then that is his absolute right.


On the other hand, the member for an Open Electorate in the National Parliament is elected by only a fraction of the Province’s population. He cannot as of right become the Governor of the whole province. He can only do so by an election conducted in the Provincial Assembly under S.21. The election by the Provincial Assembly of a Governor from amongst members of the National Parliament who are also members of the Provincial Assembly is not the same thing as an election of the Provincial Member to be the Provincial Governor by the population of the Province in a general popular election. The former cannot claim the same level of power vested in the Provincial Member, and continue to hold office as the Provincial Governor, when the Provincial Member who is elected in a General Election or By-Election to be the Provincial Member and also the "Provincial Governor", is sidelined.


Applying these principles to the present case, I find that the Plaintiff automatically became the Governor of Simbu Province upon his election on 19 July 2004 under S.17(2). Consequently, the Defendant’s position as the Provincial Governor automatically ceased to have effect on 19th July 2004 under S.19(2)(e). There is no need for an election under S.21 because this provision is inapplicable to the circumstances of the present case.


For these reasons, I grant the following orders sought by the Plaintiff in the Originating Summons as follows:-


  1. A declaration that pursuant to the OLPLLG, Section 17(2) the Plaintiff shall be the Governor of the Simbu Province.
  2. A declaration that pursuant to the OLPPG Hon. Alphonse Willie is required to cease to act as Governor of Simbu Province by operation of law, specifically s.17(2) and S.19(2)(e) of the OLPLLG, upon the election of the Plaintiff as Regional Member.
  3. A declaration that Hon. Alphonse Willie is disqualified by law from continuing in the Office of Governor of Simbu Province pursuant to and by operation of OLPLLG and upon the election of the Plaintiff as Regional Member.
  4. An Order that Hon. Alphonse Willie cease to act as Governor of Simbu Province forthwith.
  5. An Order that the Plaintiff be immediately sworn into Office as Governor of Simbu Province, a vacancy having arisen by Hon. Alphonse Willie’s disqualification by operation of s.17(2) and S.19(2)(e) of the OLPLLG.

For the avoidance of doubt, I decline to refer the question stated by Mr Naru in his submission to the Supreme Court. The provisions I have referred to and interpreted are quite clear. No question arises in my mind as to the construction of any of these provisions which warrants this Court to refer it to the Supreme Court for its opinion under S.18(2) of the Constitution. It is this Court’s function to ascertain the meaning of and apply provisions of any Constitutional law to the facts of a particular case, as I have done here in this case. The conclusions I have reached are also consistent with the decision of Hinchliffe, J in Wai v Fr. Louis Ambane (ante). There is no conflict of precedent which may require the issue to be referred to the Supreme Court to resolve as I did in Pupune v Makrai N1777 unpublished National Court Judgment dated 23 October 1998. In any case, the question as it is presently worded, is vague as to the inconsistency between the two provisions referred to.


I award costs of the proceedings to the Plaintiff.
___________________________________________________________________
Lawyers for the Plaintiffs : Pato Lawyers
Lawyers for the Defendants : Naru Lawyers

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