N6654
                                       PAPUA NEW GUINEA	
[IN THE NATIONAL COURT OF JUSTICE]

OS NO.821 OF 2015

BETWEEN
GOVERNOR ANDERSON PAWA AGIRU
Plaintiff

	AND
HON. FRANCIS POTAPE
Open Member for Komo-Magarima
First Defendant

AND
HON. THOMAS POTAPE
Deputy Governor and Komo-Magarima RLLG President
Second Defendant

AND
HON. JAMES HAPE
Upper Wage RLLG President
Third Defendant

AND
HON. ERIC YAWAS
Hulia RLLG President  
Fourth Defendant

AND
HON. EFALA PABE
Mt Bosave RLLG President  
Fifth Defendant

AND
HON. THOMAS TAWI
Tehi RLLG President  
Sixth Defendant

AND
HON. MARKUS TAPIA
Kopiago RLLG President  
Seventh Defendant

AND
HON. GULUWA WAKINDA
Lower Wage RLLG President  
Eighth Defendant

AND
HON. CHARLIE APALU
Wage RLLG President  
Awi-Pori and Lagayu Wage RLLG President  
Ninth Defendant

Waigani:  Kariko, J
2016: 17th& 31st March & 14th June

Cases cited:
James Kond v National Development Bank Ltd (2015) SC1432
Special Reference by East Sepik Provincial Executive (2011) SC1154
Special Reference by Morobe Provincial Government (2002) SC693

Legislation:
Organic Law on Provincial Governments and Rural Local-level Governments
Provincial Governments Administration Act 1997
Standing Orders of the Hela Provincial Assembly

Counsel:
Mr G Egan & Mr G Gileng, for the Plaintiff
Mr P Ame& Mr A Rake, for the Defendants

JUDGEMENT

14th June, 2016

1.	KARIKO J: The late Anderson Pawa Agiru initiated this court action seeking, among others, declaratory orders to the effect that his purported removal as Governor of the Hela Province and subsequent replacement by the first defendant Francis Potape to that office on 29thDecember 2015 by the defendants supposedly acting as the Hela Provincial Assembly was unlawful and therefore null and void, and of no force and effect.

2.	Sadly, Mr Agiru passed away before the decision in this matter could be handed down. By request of the parties (through counsel) and with the Court’s agreement, delivery of this judgement was appropriately deferred until today.

Background

3.	As I noted in my earlier ruling of 14th March 2016 in relation to an application by the defendants to dismiss the proceedings, most of the facts are not in dispute, and I again highlight those pertinent and uncontested facts. 

4.	Upon being duly elected as the Provincial Member for Hela Province at the 2012 National General Elections, Mr Agiru assumed the offices of the Governor of the Hela Province and Chairman of Hela Provincial Assembly (the Assembly) by virtue of the Organic Law on Provincial Governments and Rural Local-level Governments (the Organic Law); Sections 14(2) and 17(2). Under Section 10(3)(a) of the Organic Law, all members of the National Parliament from the Hela Province automatically qualify as members of the Assembly. Mr Francis Potape is one such member who represents the Komo-Magarima electorate. The other defendants are also members of the Assembly and they comprise Presidents of Rural Local-level Governments in Hela and nominated representatives.

5.	During the year 2015, Mr Agiru suffered serious health issues that impacted on his ability to fully perform his duties as a member of Parliament and as the Governor of Hela. He was approved leave of absence by Parliament for much of the year so that he could attend to medical treatment. 

6.	By letter dated 14th December 2015 addressed to and served on Governor Agiru, the defendants requested him to convene a “special meeting” of the Assembly on 22nd December 2015 in Tari because the Assembly had not met regularly as required by law and to discuss “other matters”.

7.	That letter was served on the plaintiff on 16th December 2015 but it was not served on the Clerk of the Assembly.

8.	On 17th December 2015 Mr Agiru responded by letter to the defendants stating the proposed date for the meeting was too soon and that a meeting could be convened at an earliest convenient time.

9.	Suspecting that the defendants intended to remove him as the Governor at the proposed meeting, Mr Agiru filed these proceedings on 21stDecember 2015. He also applied to have the defendants restrained from holding not only the proposed meeting but also any other meetings. Hartshorn, J on 22 December 2015 issued ex parte the interim injunctions sought and ordered the matter return for inter partes hearing on 5thJanuary 2016.
	
10.	Although the defendants had not yet received Mr Agiru’s response to their letter of 14th December 2015, they nevertheless convened a meeting purportedly of the Assembly on 22nd December at the Bushman Hotel Tari. Apart from Mr Francis Potape, none of the other three members of Parliament, namely Mr Agiru, Mr Phillip Undialu and Mr James Marape, were present. The Clerk of the Assembly nor his deputy attended the meeting either. 

11.	The Deputy Governor, Thomas Potape acted as the Chairman for the meeting while one TumbiYari (CEO of Komo-Magarima District Development Authority) was appointed as the minute-taker for the meeting. There was only one agenda item for the meeting and that was a motion to dismiss Mr Agiru as the Governor. The relevant notice of motion was tabled by Mr Francis Potape and the meeting was adjourned for 7 days to 29th December, 2015 for the vote on the Motion to take place.

12.	The Orders of Hartshorn, J and Mr Agiru’s letter of 17th December 2015 were only able to be served on the defendants about an hour after they had concluded their meeting. At the same time, copies of the Notice and an accompanying letter dated 22nd December 2015 setting out reasons for calling for Mr Agiru’s dismissal as the Governor were served on the Clerk of the Assembly (Watson Ebela), as service on both the Clerk and on the Governor.

13.	On 24thDecember 2015 the defendants filed an application to set aside Hartshorn, J’s orders. The application was heard by Koeget, AJ on the afternoon of 29thDecember 2015 and it was upheld upon his Honour apparently being satisfied that the meeting of 22ndDecember 2015 sought to be restrained occurred before the orders could be served, thereby rendering the orders, futile.

14.	On the morning of the same day (29th December 2015), the defendants had convened a meeting purportedly of the Assembly at the Bushman Hotel,Tari and again Mr Thomas Potape acted as the Chairman of the meeting and Tumbi Yari, the minute-taker. The meeting voted in favour of the motion to dismiss Mr Agiru as the Governor and then the defendants elected Mr Potape as the new Governor to replace Mr Agiru.

15.	On 7thJanuary 2016 Hartshorn, J upon application by Mr Agiru, restrained the defendants from acting on the resolutions passed at the meetings they held.

Relief sought

16.	The plaintiff seeks a number of orders in its Further Amended Originating Summons. Abbreviated, the main orders sought are: 

1.	A declaration that the defendants’ letter of 14thDecember 2015 does not constitute a valid and proper notice of calling of meeting of the Provincial Assembly pursuant to section 12 of the Provincial Governments Administration Act 1997 (the Act).
2.	A declaration that the said letter does not constitute a motion for the purpose of dismissing the plaintiff  as Governor of Hela Province within the meaning of, and pursuant to, section 20(2)(a) of the Organic Law and is therefore null and void and of no force or effect.
3.	A declaration that the plaintiff as Governor of Hela Province (and that in his absence, the Deputy Governor) was and is mandated to call or convene meetings of the Hela Provincial Assembly, pursuant to sections 15 and 22 of the Organic Law.
4.	A declaration that the defendants’ letter dated 22 December 2015 purporting to be a motion to dismiss the plaintiff as Governor for Hela Province, does not qualify as an express motion to dismiss the plaintiff as Governor of Hela Province, as it did not comply with section 12 of the Act, and sections 20(1) and (2) of the Organic Law and is accordingly null, void, and of no force or effect.
5.	A declaration that the purported resolution by the defendants on 29 December 2015 purporting to dismiss the plaintiff as Governor for Hela Province was null and void and of no force or legal effect.
6.	A declaration that there was no vacancy in the office of Governor pursuant to the provisions of Section 19 of the Organic Law and therefore the purported appointment and swearing in of Francis Potape as Governor of Hela Province was null and void and of no force or effect.
7.	An order in the nature of a permanent injunction restraining the defendants (either jointly or severally, and by themselves, their servants or agents) from acting on the resolutions of the meeting of 22ndand 29thDecember 2015.
8.	A declaration that each of the defendants, jointly or severally, were not mandated to call or convene a meeting of the HelaProvincial Assembly, pursuant to the provisions of section 15 of the Organic Law to be held either on 22ndDecember 2015 or on 29thDecember 2015.
9.	A declaration that the defendants’ letter dated 14thDecember 2015, and served on the plaintiff on 16thDecember 2015, (including subsequent letters to that effect) does not constitute a valid and proper notice to call or convene a meeting of the Hela Provincial Assembly pursuant to section 12 of the Act.
10.	A declaration that the plaintiff as Governor of Hela Province is mandated to call or convene meetings of the Hela Provincial Assembly pursuant to section 15 of the Organic Law.
11.	A declaration that the purported meeting that was convened by the defendants on the 22nd December 2015, was held in direct breach of a National Court Order dated 22ndDecember 2015.
12.	A declaration that each of the purported meetings of the Hela Provincial Assembly convened by the each of the defendants (either jointly or severally) on 22ndDecember 2015 and also on 29thDecember 2015 were null and void and of no legal effect.
13.	A declaration that the letter from the Acting Secretary for the Department of Provincial & Local Level Government dated 21st December, 2015 did not authorize the defendants’ to convene the purported meetings held either on 22ndDecember 2015 or 29thDecember 2015.
14.	A declaration that pursuant to Section 13(3)(g) of the Organic Law, Hon. Francis Potape cannot hold public office as he is a convicted prisoner.

Issues

17.	In my opinion, the relevant issues raised on reading together the relief sought and upon hearing submissions, are:

(1)	Whether the meeting convened by the defendants on 22nd December 2015 was a lawfully called, convened and conducted meeting of the Hela Provincial Assembly?
(2)	Whether the notice of motion dated 22nd December 2015 to dismiss MrAgiru as the Governor of Hela Province was a valid notice of motion given in accordance with the law?
(3)	Whether the meeting convened by the defendants on 29th December 2015 was a lawfully called, convened and conducted meeting of the Hela Provincial Assembly?
(4)	Whether Mr Agiru was lawfully dismissed as the Governor of Hela Province on 29th December 2015?
(5)	Whether Mr Francis Potape was lawfully elected as the new Governor of Hela Province on 29th December 2015?

Jurisdiction 

18.	This case concerns the practice and procedures of a provincial assembly and in particular the calling, convening and conduct of the assembly’s meetings and the relevant procedures for the dismissal and re-election of a governor through the process of a motion. 

19.	No challenge has been raised as to whether this Court has jurisdiction to intervene in internal affairs of a provincial assembly, in this case the Hela Provincial Assembly.

20.	As correctly submitted by counsel for the plaintiff, the law as developed in this jurisdiction is that National Parliament and for that matter provincial assemblies, are creatures of the Constitution and that includes the Organic Law and therefore neither the National Parliament nor a provincial assembly are above the law. The Courts will intervene if their conduct is not in accordance with the Constitution and any enabling legislation that governs them. 

21.	Of the relevant cases cited by the plaintiff in support of this proposition, I only refer to the recent Supreme Court case of Special Reference by East Sepik Provincial Executive (2011) SC1154,in which Injia CJ stated at paragraph 64:
	“Our Constitution, to which all subordinate enactments are subject, and Parliament’s power to make decisions in important matters of constitutional significance, is limited by the express provisions of the Constitution. Where a Constitutional law gives non – legislative power to make a decision, it is intended that the exercise of that power be formed by and in Parliament, in accordance with the procedures prescribed in the Constitution.”(My underlining)

22.	His Honour Gavara-Nanu echoed these sentiments at paragraph 856 of the same judgment in these words:
	“Express constitutional provisions which set out the mandatory requirements and processes must be fully complied with and given effect to. Considerations outside of those constitutional requirements must not be allowed to stand in the way of such express mandatory constitutional requirements and processes so as to compromise and to circumvent those mandatory constitutional requirements. They must be followed and given effect to. This is the essence of Constitution being the supreme law over any other laws (ss. 9 and 10). For the same reason, any other law which is intended to give effect to a process or requirement under such express constitutional provisions must be fully complied with and given effect to.” (My underlining)

Relevant provisions

23.	The Organic Law and its enabling legislations are Constitutional laws. The procedures for calling of meetings of the Hela Provincial Assembly, dealing with notices of motion for the dismissal of a Governor and appointment of a Governor are provided for under the Organic Law, the Act and the Standing Orders of the Hela Provincial Assembly (the Standing Orders).

24.	Section 20 of the Organic Law provides for procedures to dismiss a Governor which under Subsection (2) shall be by way of a motion expressed to be a motion to dismiss the Governor, and a signed notice of the motion must be given not less than one week “in accordance with the procedures of the Assembly.”

25.	Section 7 of the Act provides for making of standing orders which shall be subject to the Organic Law and the Act and among other things, provide for the calling of and conduct of meetings of the provincial assemblies and their committees. The Standing Orders gives effect to section 20(2) of the Organic Law and the specific requirements of section 7 of the Act. 
	
26.	The provisions with regard to the procedures to remove a Governor must be strictly adhered to in accordance with the relevant provisions of the Organic Law, the Act and the Standing Orders. Those provisions that are referred to and discussed in this judgment are reproduced in the Schedules to this judgment:

•	Schedule 1 – the Organic Law
•	Schedule 2 – the Act
•	Schedule 3 – the Standing Orders

27.	In interpreting and constructing the various statutory provisions, I have not only considered the plain and literal meaning of the words of those provisions but also the purpose and effect of the statutes; Special Reference by Morobe Provincial Government (2002) SC693 and SC Ref No 3 of 2011: Special Reference by East Sepik Provincial Executive (supra). 

28.	Upon reading the provisions, I consider the following to be the procedures for calling, convening and conduct of a meeting of the Assembly:
•	Subject to the Organic Law and the Act, the Standing Orders shall provide for the calling, regulating and conducting of meetings of the Assembly; section 7(1)(a) of the Act.
•	There shall be at least four meetings a year (one every three months); section 12(2) of the Act and section 15(3) of the Organic Law.
•	An additional meeting may be held upon the written request of one-third of the members; section 12(3)(a) of the Act.
•	The Governor as Chairman of the Assembly shall preside at all meetings of the Assembly at which he is present; sections 14 and 15 of the Organic Law.
•	Where the Clerk informs the Assembly that the Chairman is unavailable, the Deputy Governor may act as the Chairman; section 11 of the Standing Orders.
•	A motion expressed to be a motion to remove the Governor must be signed by one quarter of the seats of the Assembly and delivered to the Clerk prior to the meeting of the Assembly; section 20(2)(a)of the Organic Law and 8(1) of the Standing Orders.
•	Circumstances warranting the dismissal of the Governor are prescribed; section 20(1) of the Organic Law.
•	On the first day of the meeting, notice of the motion shall be given to the Clerk; section 8(2) of the Standing Orders.
•	After a week from giving the notice, the Assembly shall debate the motion and vote on it; section 20(2)(b) of the Organic Law and section 8(3) of the Standing Orders.
•	Before each sitting of the Assembly, the Clerk shall deliver to each Member a Notice Paper setting out the business to be brought before the Assembly; section 25 of the Standing Orders.
•	A notice of motion to remove the Governor under section 20 of the Organic Law is a private notice of motion; section 120(4) of the Standing Orders.
•	A private notice of motion shall be submitted to the Chairman of the Private Business Committee for vetting by the Committee; section 120(1) of the Standing Orders.
•	If the notice of motion is in order, the Committee shall deliver a copy of the terms of the motion to the Clerk; section 120(3)(b) of the Standing Orders.
•	The Clerk shall report the terms of the motion to the Assembly; section 121 of the Standing Orders.
•	The Clerk shall enter the notice on the Notice Paper; section 122 of the Standing Orders.
•	A notice of motion to remove the Governor under section 20 of the Organic Law shall have precedence on Private Business Day; section 120(4) of the Standing Orders.
•	Minutes of proceedings of the Assembly shall be recorded and signed by the Clerk; section 23 of the Standing Orders
•	The Clerk means the Clerk or in his absence, the Deputy Clerk; section 2 of the Standing Orders

29.	The parties agreed that meetings of the Assembly are called by the Governor as Chairman and notices of the meetings are given to Members of the Assembly by the Clerk. The meetings are conducted at the Assembly Hall except that at the material time, the Hall was being reconstructed. The plaintiff led evidence that a part of the Provincial Government premises was being used for purposes of the Assembly,  a fact denied by the defendants.
	
Meeting of 22nd December 2015

30.	The defendants claim that the meeting they requested for on 22nd December 2015 through their letter of 14th December 2015 was a meeting called pursuant to section 12(3)(a) of the Standing Orders. The plaintiff argued otherwise submitting the defendants asked for a “special meeting” which is not provided for as that section deals with “additional meetings”.

31.	It seems to me that the defendants were seeking to invoke section 12(3)(a). However the letter was simply a request to the Chairman for the meeting and nothing more. It was certainly not a notice of the meeting. If the request was endorsed, the Chairman would have then instructed the Clerk to issue the appropriate notice for the meeting to the Members of the Assembly. In this case, the defendants submitted their request then went ahead with the proposed meeting without first receiving the Chairman’s reply. 

32.	In my view, the letter of 14th December 2015 cannot be construed as a proper notice of the meeting – it is not titled as a notice, it is not addressed to the Members of the Assembly, it is not signed by either the Chairman or the Clerk, it does not contain the venue for the meeting and as to the agenda, it sets out in very general and vague terms that “other matters .... for the general good of our people” were to be discussed. As it turned out, the meeting was held at a hotel instead of the Provincial Government premises. 

33.	There is also no evidence that the letter of 14th December 2015 was served on the other Members of the Assembly, and in particular, the other two Members of Parliament, Mr Phillip Undialu and Mr James Marape. There was no Notice Paper for the meeting prepared by the Clerk and the Minutes of the meeting on 22nd December 2015 were recorded by someone other than the Clerk and the Deputy Clerk. The Clerk was not given prior notice of the meeting on grounds that he was considered by the defendants to be a supporter of the Governor and the Deputy Clerk refused to attend when approached stating that it was proper for the Clerk to attend.

34.	In all the circumstances, I find that the meeting of 22nd December 2015 purportedly of the Hela Provincial Assembly attended by the defendants was null and void and of no effect, as it did not comply with the procedural requirements for the calling convening and conducting of a meeting of the Assembly. 

The motion to dismiss

35.	The motion to dismiss Mr Agiru as the Governor was also not served on the Clerk before the meeting, but instead after the meeting. 
	
36.	It was further conceded by the defendants that the notice of motion was never vetted by the Private Business Committee for the reason that no such Committee has ever been established. The requirement for the notice of motion to be vetted or screened by the Private Business Committee is a mandatory requirement – the relevant provisions are expressed in obligatory terms with the word “shall”. In ordinary usage, the word “shall” is taken as imperative. In James Kond v National Development Bank Ltd (2015) SC1432, the Supreme Court after noting that while there is no universally applicable general rule regarding whether the word “shall” used in a statute is mandatory or directory, concluded that:  
“The main principles that emerge from these case authorities therefore are:   
1.	in statutory provisions that are considered imperative, the courts have decided that where there is non-compliance, the whole proceedings become a nullity and that everything that follows upon them are all void;
 2.	where a statutory provision is found to be directory, the courts have decided that non-compliance does not render subsequent proceedings a nullity or void.”

37.	I consider the provisions to be mandatory after having due regard yto their purpose and intention. To my mind, it is important that the provisions are strictly applied because a matter such as the dismissal of a Governor is a very serious matter. Proper checks need to be in place so that the right of the Members of the Assembly to remove a Governor are not abused and only exercised for genuine purposes and in good faith. It is also critical that the right of the Governor to be properly notified of the motion and to respond to it must be given effect to. Other members of the Assembly like the Members of Parliament (Mr Phillip Undialu and Mr James Marape) were also not properly notified of the meetings of 22nd and 29th December, 2015.They were entitled to attend and debate the very important issues concerning the dismissal and election of the Governor.

38.	As His Honour the Chief Justice went on to stress at paragraph 64 in Special Reference by East Sepik Provincial Executive (supra):
“ An essential feature of this decision-making process is for members of Parliament to be given reasonable and equal opportunity to consider and debate on the matter and be accorded complete freedom to make their own decisions. Not every instance of exercise of constitutional power on the floor of Parliament will attract the same level of significance and deliberation. Much depends on the importance of the constitutional power to be exercised. The appointment and removal of the Prime Minister, is amongst the few non-legislative decisions that tops the list of items of constitutional significance for which full opportunity for debate and vote, must be accorded to members of Parliament.” (My underlining)
39.	I paraphrase those final remarks to state that “The appointment and removal of the Governor, is amongst the few non-legislative decisions that tops the list of items of constitutional significance for which full opportunity for debate and vote, must be accorded to members of Provincial Assembly.”

40.	Accordingly, I find that the purported notice of motion dated 22nd December 2015 to dismiss Mr Agiru as the Governor of Hela Province was null and void and of no effect. 

Meeting of 29th December 2015

41.	For similar reasons in deciding that the meeting of 22nd December 2015 was unlawful, I find that the meeting of 29th December 2015 attended by the defendants was not a lawfully called, convened and conducted meeting of the Hela Provincial Assembly.  There was want of proper notice to the Members, there was a lack of a Notice Paper, the Clerk was absent, the meeting took place at a hotel, and the Minutes were recorded by an unauthorised person.

42.	Given also my findings and determination regarding the notice of motion to dismiss Mr Agiru as the Governor of Hela, I conclude that the resolutions passed at the meeting convened by the defendants on 29th December 2015 was null and void and of no effect. 

Conclusion

43.	It then follows that the late Mr Agiru was not lawfully dismissed as the Governor of Hela Province on 29th December 2015 and Mr Potape was not lawfully elected as the new Governor of  Hela Province.

Further comments

44.	There are three aspects of this case that I wish to briefly comment on before issuing the formal orders. 

45.	Firstly, the defendant Francis Potape sought advice from Secretary, Department of Provincial and Local Government Affairs prior to the meeting of 22nd December 2015, in anticipation of the meeting intended for 22nd December 2015. The advice of the Acting Secretary Dickson Guina by letter dated 21st December 2015 does not make lawful any actions of the defendants in breach of the laws as I have discussed and found. Similarly the endorsement by the Deputy Prime Minister and Minister for Inter-Governmental Relations, Hon Leo Dion in a letter dated 4th January 2016 and addressed to Mr Potape, of the dismissal of Mr Agiru as Governor of Hela and the election of Mr Potape as the new Governor of Hela does not validate the unlawful dismissal and the unlawful election. 

46.	Secondly, the defendants’ own evidence confirms that their meeting held on 29th December 2015 was convened and conducted before Koeget AJ set aside the restraining orders of Hartshorn J made on 22ndDecember 2015. By their admission, the defendants acted in breach of Hartshorn J’s orders. 

47.	Thirdly, Mr Francis Potape’s criminal conviction by the Nation Court was quashed by the Supreme Court well before December 2015 so the declaration sought by the plaintiff to have him disqualified from holding public office due to a criminal conviction is misconceived and must be refused.

Orders

48.	I declare/order that:

(1)	the Defendants’ letter dated 14 December 2015 and served on the Plaintiff on 16thDecember 2015 did  not constitute a valid and proper notice of calling of meeting of the Provincial Assembly pursuant to section 12 of the Provincial Governments Administration Act 1997.

(2)	the said letter dated 14thDecember 2015 did not constitute a motion for the purpose of dismissing the plaintiff as Governor of Hela Province within the meaning of, and pursuant to, section 20(2)(a) of the Organic Law on Provincial Governments and Local-Level Governments, is therefore null and void and of no force or effect.

(3)	the defendants’ letter dated 22ndDecember 2015 purporting to be a motion to dismiss the plaintiff as Governor for Hela Province, did not qualify as an express motion to dismiss the plaintiff as Governor of Hela Province as it did not meet the requirements of section 120 of the Standing Orders, and is accordingly null, void, and of no force or effect.

(4)	each of the meetings held by the defendants on 22nd and 29th December 2015, purportedly as the Hela Provincial Assembly were unlawfully called, convened and conducted, and were therefore null and void and of no force or effect.

(5)	the resolutions passed by the defendants purportedly as the Hela Provincial Assembly on 29thDecember 2015to dismiss the plaintiff as Governor for Hela Province was null and void and of no force or legal effect.

(6)	the meeting held by the defendants purportedly as the Hela Provincial Assembly on 29th December 2015, was held in direct breach of a National Court Order dated 22ndDecember 2015 issued by his Honour Hartshorn, J.

(7)	the plaintiff’s costs of these proceedings shall be paid by the defendants to be taxed if not agreed.

(8)	Time is abridged.

________________________________________________________________
Posman Kua Aisi Lawyers: Lawyers for the Plaintiff
Ame Lawyers: Lawyers for the Defendants

SCHEDULE 1

The Organic Law on Provincial Governments and Local-level Governments.

Section 10 - Provincial Government and Provincial Legislature.
(1)	A Provincial Government is hereby established for each province.
(2)	A provincial legislature, to be known as the Provincial Assembly or by whatever local name is considered appropriate, is hereby established for each Provincial Government.
(3)	A Provincial Assembly shall consist of—
(a)	all Members of the Parliament representing electorates in the province;

Section 14 - Chairman of Provincial Assembly.
(1)	There shall be a Chairman of a Provincial Assembly.
(2)	Subject to this Organic Law, the Provincial Governor is the Chairman of the Provincial Assembly.
(3)	If the Provincial Governor is—
(a)	on leave of absence; or
(b)	absent from the province; or
(c)	out of speedy and effective communication; or
(d)	otherwise unable to perform, or is not readily available to perform the duties of his office,
the Deputy Governor shall perform the functions and responsibilities of the Governor as Chairman of the Provincial Assembly.

Section 15 - Procedures of Provincial Assembly.
(1)	The Provincial Governor shall preside at all meetings of the Provincial Assembly at which he is present. 
(2)	Subject to this Organic Law, the privileges and immunities of members of Provincial Assemblies and the procedures and proceedings, including the number of meetings and quorum for meetings of Provincial Assemblies shall be as determined by an Act of the Parliament.
(3)	The number of meetings of a Provincial Assembly shall be not less than four in each calendar year and shall not be held at the same time as the meetings of the National Parliament.

Section 17 -	The Provincial Governor.
(1)	An office of a Provincial Governor in each province is hereby established.
(2)	Subject to this Organic Law, the Member of the National Parliament representing the provincial electorate shall be the Provincial Governor. 

Section 19 – Vacation of office of the Provincial Governor.
(1)	If the Provincial Governor—
(a)	is dismissed from office in accordance with Section 20; or
(b)	is  appointed—
(i)	a Minister or a Vice-Minister in the National Government; or	
(ii)	the Speaker or Deputy Speaker of the Parliament; or
(iii)	the Leader or Deputy Leader of the Opposition in the Parliament; or
(iv)	the Chairman of the Permanent Parliamentary Public Works Committee; or
(v)	the Chairman of the Permanent Parliamentary Public Accounts Committee; or
(vi)	to an office which has powers and privileges equivalent to those of a Minister; or
(c)	resigns his office by written notice to the Minister responsible for provincial government and local-level government matters; or
(d)	is, in the opinion of two medical practitioners appointed for the purpose by the National Authority responsible for the registration or licensing of medical practitioners, unfit, by reasons(4) of physical or mental incapacity, to carry out the duties of his office; or
(e)	is otherwise disqualified by law or ceases to be a member of the Provincial Assembly or of the National Parliament, he shall be deemed to have vacated the office of the 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—
(a)	is dismissed from office in accordance with Section 20; or
(b)	resigns his office in accordance with Subsection 1(c); or
(c)	is, in the opinion of two medical practitioners appointed for the purpose by the National Authority responsible for the registration or licensing of medical practitioners, unfit, by reason of physical or mental incapacity, to carry out the duties of his office; or
(d)	is appointed to any of the offices referred to in Subsection (1)(b); or
(e)	is otherwise disqualified by law or ceased to be a member of the Provincial Assembly or of the National Parliament.
(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 purpose of Subsection (1)(b)(vi), the National Executive Council may determine whether an office is an office to which that subparagraph applies. 

Section 20 - Dismissal of Provincial Governor and Deputy Provincial Governor.
(1)	Subject to this section, if the Provincial Governor or Deputy Provincial Governor—
(a)	Deliberately and persistently frustrates or fails to comply with the resolutions of the Provincial Assembly; or
(b)	Deliberately and persistently disobeys  applicable laws, including the Constitution, an Organic Law (including this Organic Law) or any national legislation applying in the province; or
(c)	Is negligent in exercising his powers or performing his functions, duties and responsibilities; or
(d)	Does an act that is or is likely to bring into disrepute or call into question the integrity of his office,
the Provincial Assembly may, by a two-thirds absolute majority vote, dismiss the Provincial Governor or Deputy Provincial Governor.
(2)	The dismissal of the Provincial Governor or the Deputy Provincial Governor shall be by motion—
(a)	which shall be expressed to be a motion to dismiss the Provincial Governor or the Deputy Provincial Governor, as the case may be; and
(b)	of which not less than one week’s notice signed by the number of members of the Provincial Assembly, being not less than one-quarter of the total number of seats in the Assembly, has been given in accordance with the procedures of the Assembly.

Section 21 - 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—
(a)	a vacancy exists in the office the Provincial Governor; and
(b)	all of the Members of the Parliament—
(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 Section10(3)(b) and (c), elect the Provincial Governor.

SCHEDULE 2

The Provincial Governments Administration Act 1997

PART III.- PROCEDURES OF PROVINCIAL ASSEMBLIES 

Section 7- Standing Orders.
(1)	A Provincial Assembly shall make Standing Orders which shall, subject to the Organic Law and this Act, provide for—
(a)	the calling, regulating and conducting of the meetings of the Provincial Assembly and of the Committees of the Provincial Assembly; and
(b)	the authentication of all documents required to be sealed with the seal of the Provincial Assembly; and
(c)	such other matters relative to the procedures of the Provincial Assembly and committees of the Provincial Assembly as are necessary or convenient or as are directed by the Minister.
(2)	The Chairman shall cause a copy of the Standing Orders made by the Provincial Assembly (and of any amendments to the Standing Orders), certified under the hand of the Chairman and the Clerk, to be submitted to the Minister for approval.
(3)	The Minister shall consider Standing Orders (or amendments to Standing Orders) submitted to him and shall—
(a)	approve the Standing Orders or amendments; or
(b)	require changes to be made prior to approval.
(4)	Standing Orders or amendments to Standing Orders shall not have effect until approved by the Minister.
(5)	The Minister may draw up and have published in the National Gazette model Standing Orders, which may be adopted, with or without modification, by a Provincial Assembly.

Section 12 - Meetings of a Provincial Assembly.
(1)	A Provincial Assembly 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 Provincial Assembly shall meet at least once in each period of three months. 
(3)	A Provincial Assembly shall have additional meetings—
(a)	where not less than one third of the total number of members of the Provincial Assembly make written request to the Chairman; or
(b)	where the Chairman gives notification; or
(c)	in accordance with the provisions of an Act of the Parliament or of a provincial law or of the Standing Orders.
(4)	Unless the Minister gives written authority to the contrary a meeting of a Provincial Assembly shall not be held at the same time as a meeting of the Parliament.

SCHEDULE 3

The Hela Provincial Assembly Standing Orders

Section 2 - Interpretation.
“the clerk” means the clerk of the Assembly or if he is absent, the Deputy Clerk; 

Section 3 – Office of the Clerk of the Assembly.
(1)	The Clerk and the Deputy Clerk shall perform the functions conferred on them by this Standing Orders.
(2)	The Clerk shall ensure that -
(a)	Clerical staff; and
(b)	Advisory services for –
(i)	the Chairman;
(ii)	the Committee of the Assembly;
(iii)	the Members of the Assembly; and
(c)	a proper system of recording of the proceedings of the Assembly and its committee; and
(d)	such other facilities and staff, are provided to ensure the efficient operation of the Assembly.
(3)	During a vacancy in the office of the Clerk of the Assembly, all powers, functions and duties of the Clerk, shall be exercised by the Deputy Clerk. 

Section 8 – Removal of Governor and Deputy Governor etc.
(1)	 A motion expressed to be a motion to remove the Provincial Governor or the Deputy Governor, as the case may be, signed by the number of Members of the Assembly, being not less than one quarter of the total number of seats in the Assembly, shall be delivered to the Clerk prior to the meeting of the Assembly.
(2)	On the first day of the meeting of the Assembly, a notice of motion shall be given to the Clerk or the Member proposing the motion.
(3)	After a week from the date on which a notice was given of the motion, the Assembly shall debate the motion and by a two-thirds absolute majority vote, dismiss the Provincial Governor or the Deputy Governor, as the case may be, from office.
(4)	In taking a vote under subsection (3), the Chairman shall direct the Members to divide and move to positions indicated by the Chairman.
(5)	Where a motion under this Standing Order is to be considered by the Assembly – 
(a)	if the Deputy Governor intends to be elected as the Provincial Governor, he shall resign from office by written notice to the Governor; and
(b)	the Assembly shall, prior to dealing with the motion under this Standing Order, elect a Deputy Governor in accordance with Standing Order 5.
(6)	In considering a motion under this Standing Order, if both the Governor and the Deputy Governor are to be removed, the Assembly shall—
(a)	consider the motion to remove the Deputy Governor to proceed the election of the Deputy Governor in accordance with Standing Order 10; and
(b)	after the election of the Deputy Governor, consider the motion to remove the Governor and subject to Standing Order 7, proceed to the election of the Governor in accordance with Standing Order 9.

Section 9 – Election of Provincial Governor.
(1)	Whenever the Provincial Governor vacates his office or is dismissed from office, the Assembly shall, in accordance with Section 21 of the Organic Law on Provincial Governments and Local-Level Governments, elect from amongst the members of the Assembly who are Members of the Parliament or heads of the rural local-level Government or urban local-level Government, as the case may be, as a Provincial Governor.
(2)	When one member is proposed and seconded as the Provincial Governor, the Deputy Chairman shall declare that Member as the Provincial Governor.

Section 11 – Absence of Chairman.
Whenever the Assembly is informed by the Clerk of the absence of the Chairman or that the Chairman is for any reason unable to act, the Deputy Chairman shall perform the duties of the Chairman as the Chairman of the Assembly.

Section 23 – Minutes of Proceedings of the Assembly.
All proceedings of the Assembly shall be recorded by the Clerk and such records constitute the Minute of Proceedings of the Assembly and shall be signed by the Clerk.

Section 25 – Notice Paper.
(1)	Before each Sitting, the Clerk shall deliver to each Member a paper, called a Notice Paper, showing the mater to be brought before the Assembly.
(2)	The Notice Paper shall also show Bills, motions and papers that stand referred to committees, together with notification of the times and places when and where the committees will meet to consider them.

Section 120 -Private Notice of Motion.
(1)	A private notice of motion shall be submitted to the Chairman of the Private Business Committee which shall—
(a)	Meet on each Wednesday during Meeting of Assembly to examine all notices of motion submitted under this Standing Order and to determine whether the term of the motion are of a parochial nature or of a matter of public importance; and
(b)	Determine the order in which notices and orders of the day on the Notice Paper shall be considered on sitting days when private business has precedence.
(2)	The notice must be signed by the Member and seconder
(3)	After determining that a notice of motion –
(a)	is not in order as it is of a parochial nature, the Private Business Committee shall return the notice to the member proposing the motion with a recommendation – 
(i)		that the Member consult with the Minister or authority concerned, or 
(ii)		That the Minister place a question relating to the subject matter on the question paper; or
(iii)	that the Member may otherwise achieve more quickly and effectively the action sought by him through other means; or 
(b)	is in order as it is a matter of public importance, the Private Business Committee shall deliver a copy of its terms to the Clerk.
(4)	For the purpose of this Standing Order, a notice for the removal of the Governor or Deputy Governor given under section 20 of the Organic Law on Provincial Governments and Local-Level Governments, is a private notice of motion and shall have precedence on Private Business day.
(5)	A notice of motion under this Standing Order may be moved by a Member, other than a Chairman of a Committee of the Provincial Executive Council.

Section 121–Reporting of Notices.
On receipt of a notice of motion under Standing Order 119 or 120, the Clerk shall, at the first convenient opportunity, report the terms of the notice of motion to the Assembly.