N9774

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

WS NO. 564 OF 2020

BETWEEN:
JOHN SAMBI in his capacity as former President for Inland Baining Local Level Government
Plaintiff

AND:
THE MINISTER FOR INTER-GOVERNMENT RELATIONS
First Defendant

AND:
WILSON MATAVA in his capacity as Administrator for East New Britain Provincial Government
Second Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Kokopo: Manuhu, J.
2022: 15th, 18th & 22nd July

ELECTIONS – Ministerial Circular Instructions for Presidents to resign to contest in National General Elections – Failure to comply – Plaintiff prevented from resuming office as President – s. 9 & 10 of the Local-level Government Act – s. 30 of the Organic Law on National and Local-level Government – s.50 of the Constitution.

Cases Cited:

OS NO. 646 0f 2017 Daki Mao & Judas Nalau v Sheila Haro & Morobe Provincial Government,
Stanley Miles, Patrick Bawai & Wari Vele v Central Provincial Government & Others (2019) N7853

Counsel:

J. Marubu, for the Plaintiff.
E. Takaboy, for the First and Third Defendant.
N. Yabon, for the Second Defendant.

22nd July, 2022
1.      MANUHU, J:  The plaintiff is claiming damages against the defendants after he was prevented from resuming duties as President of the Inland Baining Local Level Government in 2017.  Before me is the issue of liability.
2.     It is not disputed that the plaintiff was duly elected as President of the Inland Baining Local Level Government.  His term of office was for 5 years from 2013 to 2018.  On the eve of the National General Elections, a Circular Instruction of 28th March 2017 was issued by the Minister for Inter Government Relations which required Presidents to first resign before contesting the 2017 National General Election.  The plaintiff did not resign and contested the National General Elections in 2017.  He lost.  When he attempted to resume office as President of his LLG, he was informed not to return and was locked out of his office purportedly for not resigning as per the Circular Instruction.
3.     The main argument by the plaintiff is that the Circular Instruction was null and void and of no effect.  Therefore, the plaintiff was unlawfully prevented from resuming duties as President.  
4.     In my view, the immediate issue is whether the second defendant’s action in preventing the plaintiff from resuming his office as President was authorized by and in accordance with the law.
5.     Relevantly, Part 5 (FAILURE TO COMPLY) of the Circular Instruction reads:
“Provincial Administrators and District Administrators are to ensure this Circular Instruction is made available to all LLGs in their respective jurisdictions and that all LLG Heads and Members intending to resign for the National Generals resign in compliance with this Circular Instructions.  If received complaints with sufficient evidence of LLG Leaders intending to contest but failing to resign by the given date of resignation and continue occupying office will be dismissed before the issuing of the writs for the 2022 National Elections.
“Leaders who fail to comply with this Circular Instruction will have their non-compliance treated as grounds for dismissal from office invoking Sections 9 and 10 of the Local-level Government Administration Act 1997.” (my underlining)
6.     By invoking sections 9 and 10 of the Act, the Circular Instruction appears to authorise automatic dismissal of a President who fails to resign before standing for elections.  This interpretation is consistent with Part 6 of the Circular Instruction which states that where a leader (President) “is unsuccessful in the National General Elections he/she cannot revert to his/her former elected post/position as he/she would have automatically lost that position upon resignation.”  It is also consistent with the subsequent prevention of the plaintiff to resume duties.
7.     In the circumstances, a number of laws may have been breached when the plaintiff was prevented from resuming duties.  Section 9 of the Local-level Government Act provides:
“9.  DISMISSAL FROM OFFICE OF HEAD OF A LOCAL-LEVEL GOVERNMENT FOR NEGLECT OF DUTY.
(1) Where the Minister, after such inquiry and consultation as he considers appropriate, is of the opinion that the head of a Local-level Government has neglected his duty, he may dismiss the head of the Local-level Government from office.
(2) The Minister shall not dismiss the head of a Local-level Government under Subsection (1) unless he has given to the head of the Local-level Government 21 days’ written notice of his intention to do so and the reasons for so doing.
(3) Within 14 days of the receipt of a notice under Subsection (2) the head of the Local-level Government may reply in writing to the Minister who shall consider the reply and, where appropriate, dismiss him from office.
(4) Where the head of the Local-level Government does not, within 14 days of receipt of a notice under Subsection (2), reply in writing, the Minister shall dismiss him from office.
(5) A dismissal from office under this section–
(a) shall be in writing; and
(b) shall be sent to the person dismissed; and
(c) shall be notified to–
(i) the Local-level Government concerned; and
(ii) in the case of the head of a Local-level Government in respect of which office a determination has been made under Section 234(2) of the Organic Law on National and Local-level Elections–the Electoral Commission.”
Section 10 of the Act provides:
“10.  DISMISSAL FROM OFFICE OF A MEMBER OF A LOCAL-LEVEL GOVERNMENT FOR NEGLECT OF DUTY.
(1) Where the Minister, after such inquiry and consultation as he considers appropriate, is of the opinion that a member of a Local-level Government, other than the head of a Local-level Government, has neglected his duty, he may dismiss that member from office.
(2) The Minister shall not dismiss a member under Subsection (1) unless he has given to the member 21 days’ written notice of his intention to do so and the reasons for so doing.
(3) Within 14 days of the receipt of a notice under Subsection (2), the member may reply in writing to the Minister who shall consider the reply and, where appropriate, dismiss the member from office.
(4) Where the member does not, within 14 days of receipt of a notice under Subsection (2), reply in writing, the Minister shall dismiss him from office.
(5) A dismissal under this section–
(a) shall be in writing; and
(b) shall be sent to the person dismissed; and
(c) shall be notified to–
(i) the head of the Local-level Government concerned; and
(ii) in the case of an elected member, the Electoral Commission; and
(iii) in the case of an appointed member, the organization responsible for the nomination of that member.”

8.     Section 30 of the Organic on Provincial and Local-level Government provides:
“30 VACATION OF OFFICE.
 
(1) Where a member of a Local-level Government–

(a) is disqualified under Section 31; or
(b) becomes permanently incapable of performing his duties; or
(c) dies or resigns his office; or
(d) fails to comply with the provisions of this Organic Law; or
(e) becomes of unsound mind; or
(f) becomes bankrupt, applies to take the benefit of any law for the relief of bankrupt or insolvent debtors, compounds with creditors, or makes an assignment of his remuneration for their benefit; or
(g) is convicted of a criminal offence punishable by law for which a term of imprisonment of not less than three months or death are prescribed as a penalty and as the result of that conviction is sentenced to imprisonment or is under sentence of death, or is under bond to appear for sentence if called on; or
(h) is dismissed from office for misconduct in office; or
(i) is dismissed from office for neglect of duty in accordance with an Act of the Parliament; or
(j) is absent without leave of the Local-level Government during the whole of three consecutive meetings of the Local-level Government, unless the Local-level Government decides to waive this provision upon satisfactory reasons being given,

the member is deemed to have vacated his office and the Minister, acting with, and in accordance with, the advice of the Provincial Executive Council, shall terminate his membership.

(2) Where an office of member of a Local-level Government is vacated in accordance with Subsection (1), the vacancy shall be filled as soon as practicable.

(3) The exercise or performance of a power or function of or by a Local-level Government is not invalidated by reason only of a vacancy in the membership of the Government.”

9.     From the foregoing provisions, neglect of duty is a ground for dismissal (s.30(1)(i) (Organic Law)).  The Minister has the power to dismiss a President only on that ground.  The Minister cannot manufacture grounds for dismissal of a President.  On neglect of duty, the relevant procedures are prescribed in sections 9 and 10 of the Act.  If neglect of duty is the basis for the plaintiff’s dismissal, there is no evidence that the procedures under sections 9 and 10 of the Act were followed.  This means that the plaintiff at the relevant time was still President and was entitled to resume office but he was prevented from doing so.  
10.     Under section 50 of the Constitution, every citizen has the right to stand for public office.  No one has the right to prevent a citizen from exercising that right.  The Minister had no right to hinder the plaintiff from exercising that right.  Failure to resign cannot be regarded as neglect of duty to warrant dismissal from office.  It is not a ground for dismissal under the Organic Law.    
11.     It was argued that the Circular Instruction was intended to prevent abuse of office for political reasons.  This argument is baseless, with due respect.  There is no evidence that the plaintiff abused his office when he contested the elections.  In any case, when he had lost the election, there was no longer any need to be concerned about him abusing his office for political reasons.
12.     In all the circumstances, the Circular Instruction is null and void to the extent that it purported to have the effect of automatically dismissing a President on the ground of failure to resign to stand for elections.  It is also null and void to the extent that it purported to have the effect of imposing a restriction on the right to stand for public office. It is also null and void to the extent that it purported to override the procedures for dismissal for under the Act (and the Organic Law). It is also null and void to the extent that failure to resign to stand for elections is not a ground for dismissal under the Organic Law.  
13.     The validity of the same Circular Instruction was considered in In OS NO. 646 0f 2017 Daki Mao & Judas Nalau v Sheila Haro & Morobe Provincial Government where the Court made the following Orders: 
“1. The Circular issued by the Department of Inter-government Relations Minister requiring Local Level Government Councillors, and Local Level Government Council Presidents to resign before contesting the 2017 National General Election dated 18th March 2017 is null and void.
“2. All Local Level Government Council Presidents…were not required by law to resign to nominate and run for the 2017 National General Elections.”
14.     Also in the case of Stanley Miles, Patrick Bawai & Wari Vele v Central Provincial Government & Others (2019) N7853, where the same legal question arose out of the same Circular Instruction, Makail J ruled in favour of the plaintiff who were Presidents of their respective LLGs, including an order directing the first defendant to allow the plaintiffs to enter their respective offices including Assembly meetings and District Development Authority meetings and to perform their duties and functions as elected Members of the Provincial Assembly.
15.     Clearly, the Organic Law and the Act were virtually ignored and breached by the defendants.  The procedures for dismissal were not followed.  No one is above the law in this country.  A Minister is subject to the laws of this country.  Provincial and District Administrators are subject to the laws of the country.  The defendants have a duty to uphold and apply the laws of the country in the decisions they make.  They have failed that duty.  The Minister for Inter-government Relations and the Administrator for East New Britain effectively unlawfully dismissed the plaintiff from office when he was prevented from resuming his office as President.  The plaintiff has been victimised as a direct consequence of the unconstitutional and unlawful actions of the defendants.  Therefore, the defendants are each and severally liable for their wrongful dismissal of the plaintiff when they prevented him from entering his office.
16.     I find in favour of the plaintiff on the issue of liability.  Damages are to be assessed in due course.
Orders accordingly.
________________________________________________________________
Marubu Lawyers: Lawyer for the Plaintiff:			
Solicitor General: Lawyer for the First & Third Defendants
Inhouse Lawyers: Lawyer for the Second Defendant