Namaliu v Haiveta [2004] PGLawRp 31; [2004] PNGLR 218 (29 October 2004)

NATIONAL COURT OF JUSTICE

HON. SIR RABBIE NAMALIU;
HON. IAN LINSTUCKY;
HON. MARTIN AINIL; AND
PANGU PARTY INC;

V

HON. CHRIS HAIVETA

WAIGANI: INJIA DCJ

29 October 2004

ORGANIC LAW – Organic Law on Integrity of Political Parties and Candidates – Registered Political Party – Parliamentary Wing of Political Party – Constitution of Political Party to provide for - Expulsion of member of Political Party – Removal and election of Leader of Political Party – Subject to democratic principles stipulated by Organic Law – Expulsion of members and election of new leader of Parliamentary Wing done contrary to Organic Law and Constitution of Political Party – Decisions declared invalid, void ab initio – Fresh election ordered – Organic Law on Integrity of Political Parties and Candidates, SS.24(7), 62, 25(4;, Organic Law on Integrity of Political Parties and Candidates Regulations (Statutory Instrument No. 1 of 2001), S.13; Constitution of Pangu Pati, SS.13, 38 and 39.

Facts

The first, second, third and fourth plaintiffs ("the Plaintiffs") and the defendant are members in the current term of the National Parliament. They are five of the six members of the Pangu Pati, the fourth plaintiff, ("the Pati"). The 6th Member is the Hon. Conrad Haoda. The Pati is registered under the Organic Law on the Integrity of Political Parties and Candidates ("the Organic Law"). The six members comprise the Parliamentary Wing of the Pati.

The plaintiffs are seeking two principal declaratory orders, firstly, the expulsion of the first, second and third plaintiffs in two separate meetings of the Parliamentary Wing held on 26 November 2002 and 23 February 2004 in two separate meetings both which were chaired by the defendant, be declared null and void ab initio, and secondly, a declaration that the decision of the Parliamentary Wing made in a meeting on 23 February 2004 chaired by the second plaintiff which elected the first plaintiff as the leader of the Parliamentary Wing, replacing the defendant, was duly elected. Both relief are sought under provisions of the Constitution of the Pati.

Held

1. The leadership of the Pati for the current leadership of the Parliament has not yet been settled as required by s.25(4)(d) of the Organic Law and Clause 39.1 of the Constitution of the Pati. Given the unco-operative attitude taken by the defendant and the friction between two factions of the Parliament Wing, the Court intervened to require the meeting to take place in order to ensure that the provisions of the Constitution and the Organic Law referred to are complied with.

2. The meetings of the Parliamentary Wing of the Pangu Pati called by the defendant on 26 November 2002 and 23 February 2004 and the decisions made in these meetings invalid, void ab initio and of no effect whatsoever.

3. The meeting convened and chaired by the second plaintiff on 23 February 2004 and the decision made in that meeting to elect the new Parliamentary Leader in the form of the first plaintiff invalid, void ab initio and of no effect whatsoever. Consequently, I declare the subsequent recognition by the Commission and the Speaker of the National Parliament of the first plaintiff as the leader of the Pangu Pati both invalid, void and of no effects whatsoever.

4. The first, second and third plaintiff remain members of the Pangu Pati's Parliamentary Wing at all times up to this day.

5. The defendant remains the leader of the Pangu Pati at all times up to this present day.

6. All the six members of the Parliamentary Wing of the Pangu Pati shall meet at a venue within the Parliament house on the first day of the next sitting of the Parliament in November 2004 or whenever the Parliament next meets, on a date and time to be fixed by this Court or by agreement between the parties. The only agenda for this meeting shall be, first the removal of the defendant as the Pati Leader, and second if so removed, the election of a new Pati Leader. The decisions to remove the defendant shall also be made by 2/3 of all six (6) Parliamentary members. A decision shall be made by casting of vote. The meeting and decision reached shall be witnessed by the Registrar of Political parties, Mr Paul Bengo and the Clerk of the National Parliament, Mr Ano Pala. The Public Officer of the Pangu Pati, Mr Thomas Taian, shall also attend the meeting and accurately record the Minutes of that meeting and he shall report to this Court on the outcome of that meeting, by filing an affidavit annexing a certified copy of the Minutes of the meeting, within 48 hours from the conclusion of the meeting. The Clerk of the Parliament shall advise the Speaker of the National Parliament on the results of the election and the Speaker shall give effect to the decision of the Parliamentary Wing reached pursuant to this order. In the event that the terms of para 6 (supra) of this order is not complied with for whatever reason, I grant liberty to either party to apply for further orders.

7. Each party shall bear their own costs of these proceedings.

Papua New Guinea cases cited

[no cases cited]

Counsel

L Henao with J Aisi (Jnr), for the plaintiff.
M Wilson, for the defendant.

29 October 2004

Injia dcj. The first, second, third and fourth plaintiffs ("the plaintiffs") and the defendant are members in the current term of the National Parliament. They are five of the six members of the Pangu Pati, the fourth plaintiff, ("the Pati"). The 6th Member is the Hon. Conrad Haoda. The Pati is registered under the Organic Law on the Integrity of Political Parties and Candidates ("the Organic Law"). The six members comprise the Parliamentary Wing of the Pati.

The plaintiffs are seeking two principal declaratory orders, firstly, the expulsion of the first, second and third plaintiffs in two separate meetings of the Parliamentary Wing held on 26 November 2002 and 23 February 2004 in two separate meetings both which were chaired by the defendant, be declared null and void ab initio, and secondly, a declaration that the decision of the Parliamentary Wing made in a meeting on 23 February 2004 chaired by the second plaintiff which elected the first plaintiff as the leader of the Parliamentary Wing, replacing the defendant, was duly elected. Both relief are sought under provisions of the Constitution of the Pati.

The evidence before me consists of uncontested affidavit evidence from both parties. In addition, the Registrar of Political parties gave oral evidence after he was summoned by the Court.

There is no dispute that prior to 23 February 2004, the defendant was the Leader of the Pati. There is also no dispute that the second plaintiff was at all material times the Deputy Leader of the Pati representing New Guinea Islands Region. There is also no dispute that prior to 26 November 2002 and 23 February 2004, respectively, the first, second and third plaintiffs were members of the Parliamentary Wing of the Pati.

I accept the position taken by both parties that whilst the Organic Law provides for a general framework for the membership of a Political Party, the removal of a Party Leader and the election of its Leader, it does not provide the procedure for these three things. Instead the Organic Law gives prominence to the Constitution of the Party to make provision for these things.

The general framework for membership and expulsion of a member and the removal of and election of the leader of the Parliamentary Wing is provided in Organic Law, s.24(7) (Membership of Political Parties) which provides:

"A Member of a registered political party who is Member of the Parliament and who has not paid, within the time and in the manner required by the Constitution of that political party, all fees, dues or other payments due by him to the political party may be expelled from the political party if the Constitution so provides, but if not so expelled remains as a member of that political party until –

(a) the end of the life of the Parliament during which the non-payment occurs; or

(b) his resignation from that political party; or

(c) his ceasing to be a Member of the Parliament according to law,

whichever first happens."

Section 62 of the Organic Law is also relevant. It provides:

"Expulsion from registered political party.

(1) A registered political party may, in accordance with its constitution, expel from the party a member of the party (including a member who is a Member of the Parliament) on grounds specified in the constitution of the party.

(2) A Member expelled from a party under Subsection (1) may—

(a) join another registered political party; or

(b) remain independent from any political party."(my underlining)

It is clear from these provisions that the Constitution of a Political party may expel a member of a registered Political party on the grounds of non-payment of fees, etc. Any other grounds for expulsion must be expressly provided for in the Constitution of the Political Party.

Section 25(4) of the Organic Law provides for the election and removal of a Parliamentary Party Leader as follows:

"A Parliamentary Leader referred to in Subsection (1)(d) shall be elected in a democratic manner in accordance with provisions specified in the Constitution of the political party and conforming to the following principles:-

(a) each member of the political party who is a Member of the Parliament has an equal voting right that is exercisable freely; and

(b) subject to reasonable qualification applying to all such members, all such members are eligible to contest the election of the office of Parliamentary Leader; and

(c) reasonable opportunity is given to—

(i) all such members qualified under Paragraph (b) to contest; and

(ii) all such members to vote in,

an election of a Parliamentary Leader; and

(d) the Parliamentary Leader is appointed and is removable by the majority of such members at elections held at fixed periodic intervals and at least once during the life of each Parliament."(my underlining)

It is clear from the above section that the Constitution of the Pati must make provisions for the election or removal of a Pati Leader to be done in a democratic manner. Some of the democratic principles applicable are those prescribed in para. (a) – (d) inclusive. Section 25(4)(c) - (d) is relevant to the present case. That is, the Constitution of a Pati must provide for the Leadership of the Pati to be decided at fixed periodic intervals and at least once during the life of the Parliament; reasonable opportunity must be give to qualified members to stand for the office of Leader and to vote for a candidate of their choice and that any decision made must be made through of an election process, by casting of vote. The issue of removal of the incumbedent leader and election of a new leader, though related matters are treated as separate matters in s.25(4)(d) and they must be determined separately. In a situation where there is an incumbedent leader occupying the position, the "removal" of the incumbedent leader must precede the election of the new leader. It is clear from s.25(4)(d) that the leadership of the Party will be decided at least once during the life of the Parliament. Practically, the leadership question must be dealt with this means immediately after the return of the Writs in a general election or as soon as possible upon commencement of the term or life of the new Parliament.

The Constitution of a political party is defined in s.2 of the Organic Law as "means the document (by whatever name known) specifying aims of the political party and the manner of governance of the political party." Also, in s.2, a political party is defined as "means an association, party or organization (By whatever name known) having political aims and includes branches and affiliates." A political party is required to be registered with the Registrar of Political Parties under the Organic Law, and it is eligible to be registered if, inter alia, it is incorporated under the Association Incorporation Act (Ch. No. 142)." The rules of the Association made by a the Pati under the Association Incorporation Act may also be the same rules which constitute the Constitution of the Party and it may be submitted to the Registrar of Political parties under s.13 of the Regulations under the Organic Law.

Section 13 of the Organic Law on Integrity of Political Party and Candidates, Statutory Instrument No. 1 of 2001("the Regulation" provides for the Constitution of a Political Party. Section 13(1) and (2)(e), (f) and (4) are relevant and they provide:-

"POLITICAL PARTY CONSTITUTION"

"(2) For the purposes of Subsection (1), the Constitution of a political party shall make provision for the following:-

(e) how the Parliamentary Leader is to be appointed or elected; and

(f) statement that no Member of Parliament may be elected and hold office as Parliamentary Leader of the same party on more than three consecutive occasions; and . . . .

(4) For the purposes of Subsection (2)(e), the Constitution of a political party shall provide that the Parliamentary Leader is to be elected in a manner consistent with the provisions of Section 4(4) (sic s.24(4)) of the Organic Law.(my underlining)

This case involves a dispute between the members of the Parliamentary Wing of the Pati. It is accepted by both parties that apart from the Constitution providing for termination or expulsion of a member of the party and an appeal process, it does not provide for any internal dispute resolution procedure on a dispute over the removal or election of the Leader of the Parliamentary Wing.

There is evidence from Mr Paul Bengo, the Registrar of Political Parties, that the Commission on the Integrity of Political Parties and Candidates established under s.3 of the Organic Law ("the Commission") met and recognized the election of the first plaintiff as the Leader of the party after it was so advised by the first plaintiff. There is also evidence that the Speaker of the Parliament was advised by the first plaintiff of his election and the Speaker recognized his leadership on the floor of Parliament. However Mr Bengo quite clearly said the Commission does not determine leadership issues within a party. The Commission's function is only supervisory and it only recognizes the decision made by the Party under its Constitution. It is the party who advises the Registrar and the Speaker directly of any changes on the Leadership of the party. Therefore, any recognition by the Registrar or the Commission of any member as the elected leader of a Registered Party is not binding and of no effect unless the leader is elected in accordance with the Constitution of the Party. The same applies to the Speaker of the National Parliament.

And so insofar as the process of removal or election of a party leader is concerned, the Organic Law and the Regulation leave it to the Constitution of the party to provide for. That is the reason why the actions of the Commission and the Speaker have not been challenged. In turn, both parties have fought their case on the alleged breach or compliance with the Constitution of the Pati. I accept this position as being inconsistent with the purpose of the provisions of the Organic Law and Regulations I have set out above. I only add that the provisions of the Pati's Constitution must be read subject to s.25(4) of the Organic Law.

At the outset I take it that both parties have accepted the unlimited jurisdiction of this Court to interpret the Constitution, as this Court has power to interpret all subordinate rules and regulations made under an Act of the Parliament. The Constitution of a Party is a sub-ordinate rule made under the Association Incorporation Act or under s.13 of the Regulations. The Constitution of the Pati which was registered with the Registrar of Political Parties, a copy of which is in evidence, is however an old one which pre-dates the Organic Law. It has not been modified to reflect requirements under the Organic Law passed by the National Parliament in 2001, such as the requirements of s.25(4) and s.62 of the Organic Law. Some provisions of the Constitution are in fact vaguely worded and poorly drafted and I am required to interpret what they exactly mean first before I apply those rules. I do appreciate that where there are any anomalies in the provisions of the Constitution, the correct forum for rectifying those anomalies would ordinarily rests with the Pangu Pati itself but I also consider that it squarely falls within this Court's function to interpret the Constitution in order to resolve the dispute.

Two main issues arise for determination in this case. They are:

(1) Whether the first, second and third plaintiffs were validly expelled from the Parliamentary Wing of the Pati in accordance with the Constitution. If they were, then it follows that they were not eligible to engage in the conduct of the business of the Parliamentary Wing of the Pari including the calling of any meetings of the Parliamentary wing. It is undemocratic for a member who has been validly expelled from the Parliamentary Wing of the Pati to continue to hold himself out as being member of the Parliamentary Wing and engage in the Pati's Parliamentary activities. Conversely, if they were not validly expelled under the Constitution of the Pati, they had the right to engage in the Pati's Parliamentary activities and the second issue then arises for consideration.

(2) If the first, second and third plaintiffs were not validly expelled and were entitled to participate in the meeting chaired by the second plaintiff on 23 February 2004, the issue is whether the plaintiff was validly elected as the leader of the Parliamentary Wing on 23 February 2004. The related issue is whether the defendant was validly removed as the Party Leader, thus creating a vacancy for a new Parliamentary leader to be elected. These issues are inter-related.

Expulsion

Clause 13 of the Constitution of the Pati provides for expulsion and appeal. It states:

"EXPULSION AND APPEAL

"13.1 Subject to this Clause a member other than (a probationary member), a parliamentary Member or a member of the Central Executive may be expelled by a two-thirds vote of members present and voting at a Branch meeting of the Branch of which he is a member, or by a two-thirds vote of members present and voting at a meeting of the Central Executive.

13.2 Subject to this Clause a Parliamentary member may be expelled by a two-thirds vote of all Parliamentary Members the Parliamentary Member concerned shall not be entitled to vote in relation thereto.

13.3 Subject to this Clause a member of the Central Executive may be expelled by a two-thirds vote of all members of the Central Executive (the member concerned shall not be entitled to vote in relation thereto).

13.4 No member may be expelled under this Clause unless reasonable prior written notice of an intention to expel him, which notice specifies the grounds on which the proposed expulsion is based, has been given to him by the body concerned, and the member has been given a proper opportunity to answer all material allegations against him.

13.5 Any member who is expelled under this Clause may appeal against his expulsion by notice:

(a) if he has been expelled by a branch, to the Central Executive;

(b) if he has been expelled by either the Central Executive or the Parliamentary Member to the council;

and on the hearing of such an appeal the member is entitled to be heard and represented.

13.6 An appeal under sub-clause 13.5 of this Clause shall be determined by simple majority vote."(my underlining)

This provision of the Pati Constitution must be read subject to s.62 of the Organic Law, (supra).

It is not disputed that members of the Parliamentary Wing for the current term of Parliament is six (6) members. They are the first, second and third plaintiff, the defendant and Mr Conrad Haoda, Member for South Fly. Pursuant to Clause 13.2, of the Pati Constitution, the quorum for a meeting to decide on expulsion of a member of Parliament is two thirds (2/3) of all Parliamentary members. Therefore the quorum is four members of Parliament. The decision to expel is discretionary as shown by the use of the word "may" but the 2/3 quorum requirement of members for such meeting is mandatory, as it is the case with any meeting. The decision is by simple majority vote.

The second plaintiff was removed in a meeting held on 26 November 2002 at Parliament Haus (Building Interview Room). The Minutes of the meeting held on 25 November 2002 in evidence chaired by the defendant shows only three members of Parliament attended the meeting. They are the defendant, the Hon. A. Buhupe and the Hon. C. Haoda. Therefore, I find that the meeting lacked quorum.

A quorum for any meeting is a fundamental requirement for the conduct of a valid meeting under the Constitution or Rules of an Incorporated Association. It is a also trite principle of any Constitutional meeting in a Parliamentary democracy such as ours. A meeting which lacks quorum cannot meet and discuss substantive business and make binding decisions and pass resolutions. The meeting lacks authority. It lacks jurisdiction to make any binding decisions or resolutions. Any decision made by a meeting which lacks quorum cannot be valid. They are void ab initio. It follows that the second plaintiff's expulsion was not in accordance with Clause 13.2 of the Constitution. The decision was invalid and void ab initio.

Similarly, the meeting which expelled the first plaintiff and the third plaintiff on 23 February 2004 also lacked quorum. Only two members of Parliament attended this meeting, namely Mr Haoda. Therefore, the expulsion of the first plaintiff and third plaintiff was not done in accordance with Clause 13.2 of the Constitution. The decision is also invalid and void ab initio.

It is at this juncture that the defendant's submission based on Clause 13.5 – 6 is relevant. Mr Wilson for the defendant submits that the plaintiffs failed to appeal against the decision of the Parliamentary caucus to the Council and therefore, the decision to expel them remained valid up to this day. He submits the Court cannot usurp the function of the Council and determine the plaintiffs' applications to declare the expulsion invalid.

In my view, there is a fundamental flaw in the Constitution in relation to the appeal procedure. It is not made clear in the Constitution as to whether the expulsion is from the membership of the Parliamentary Wing or from the membership of the registered Party or both. I take it to mean it relates to both. Under s.24(7) of the Organic Law the member can only be expelled for non-payment of fees, etc. That is not the situation in the present case. They were expelled for other reasons.

Section 62(1) of the Organic Law requires the Constitution of the Pati to specify the grounds for expulsion. The Constitution of the Pati under Clause 13 does not specify such grounds. This is a fundamental flaw in the Constitution. Until such time as the Constitution is amended, a Member should not be expelled for reasons other than for non-payment of fees etc. as provided under s.24(7) of the Organic Law. The Constitution must be modified to bring it in line with the Organic Law on this aspect.

In my view, the appeal provision in Clause 13.5 of the Constitution refers to matters of discretion such as the decision based on the grounds of expulsion. In such cases, the Pati Council would be the best judge. In the present case, the defendant was removed on grounds other than for non-payment of fees, etc. But given the flaw in the Constitution it would not serve its intended purpose to subject them to an appeal process which is fundamentally flawed.

The matter is properly before this Court. On issues of procedural requirements under the Constitution going to jurisdiction and observance of principles of democracy embodied in Organic Law s.25(4) and Clause 13.2 and 13.1 – 13.6 of the Constitution, such as the case here, the Plaintiffs are entitled to seek redress from the Court, to ensure compliance with the Constitution of the Pati, the Organic Law and the Regulations.

On the second issue of whether the first plaintiff was duly elected the Parliamentary Pati Leader, the relevant provisions of the Constitution are Clause 38.1 and Clause 39. They provide:

"38.1 The Parliamentary Wing shall elect from its own ranks a Parliamentary Leader who is qualified, capable and has demonstrated potential leadership quality and ability to lead, who shall hold office at the pleasure of the Parliamentary Wing. . . . .

"GENERAL PROCEDURES OF PARLIAMENTARY WING

"39.1 The Parliamentary Wing shall meet at least once during each meeting of the National Parliament at a time and place nominated by the Parliamentary Leader, or in his absence by the Deputy leader, provided that a quarter of the members of the Parliamentary Wing may convene a meeting by reasonable written notice to all members of the Parliamentary Wing.

39.2 A quorum of a meeting of the Parliamentary Wing shall be one half of the members present.

39.3 The procedure at meeting of the Parliamentary Wing shall be as determined by the Parliamentary Wing shall be determined by the Parliamentary Wing provided that it is not inconsistent with this Constitution.

39.4 Members of the parliamentary Wing are bound to act in accordance with decisions of a meeting of the parliamentary Wing except where an issue has been declared as non-Pati issue by the Parliamentary Wing.

39.5 Subject to this Constitution, decisions of the Parliamentary Wing shall be determined by simple majority.

39.6 The Parliamentary Wing shall determine the Pati's manner of voting on any motion or bill before the National Parliament."(my underlining)

The above provisions only relate to the election of a new leader of the Pati. There is no provision in the Pati's Constitution for the "removal" of an incumbedent Pati leader either after a general election or during the life of a Parliament as required by s.25(4)(d) of the Organic Law. This is a another fundamental flaw in the Pati's Constitution which must be addressed by the Pati in the future. In the absence of such provisions, I will interpret and apply s.24(5) of the Organic Law to the facts of the present case.

The undisputed facts which give rise to this issue are as follows. On 23 February 2004, two meetings of the Parliamentary caucus took place at about the same time. One took place at Section 6 Lot 7, Davetari Drive, Port Moresby, which is described in the Minutes as the "officially registered Location of the Pangu Pati." This meeting was convened and chaired by the defendant. In attendance was Conrad Haoda, MP for South Fly, who was the only other Member of Parliament. The only major decision made in that meeting was the expulsion of the first and third plaintiffs. I have already found this meeting to have lacked quorum and any decision made null and void ab initio.

On the same day the other meeting was held at the National Parliament Building Interview Room at 11a.m. This meeting was called by the second defendant. The Four members of Parliament were in attendance and they are the four plaintiffs.

A number of inter-related questions arise in relation to the meetings chaired by the second plaintiff. The first question is whether notice of the meeting and the agenda for the meeting was validly given in accordance with the Constitution and s.25(4)(c) of the Organic Law. The second question is whether this meeting had the required quorum. The third question is whether the Leader of the defendant was validly removed as a leader of the Pati in accordance with Clause 38 and 39 of the Constitution and s.25(4)(c) of the Organic Law. The final question is whether in the new leader, the first plaintiff was validly elected to fill the vacancy so created by the removal of the defendant, in accordance with the Constitution. These questions can be dealt with together.

As I have already said, the Constitution in Clause 38 and 39 provide for the election of the leader of the Pati but there is no provision for removal of a Pati Leader. The significance of this lack of provision is that it contravenes s.25(4)(d) of the Organic Law. As the Minutes of the meeting of 23 February 2004 chaired by the second plaintiff will show, the lack of provision may have been the reason for that meeting not addressing its mind to the issue of removal of the Defendant first before the election of the new Leader took place.

On the question of notice of this meeting, Clause 39.1 is important. It is not clear as to what it means by ¼ of the members may convene a meeting by giving reasonable written notice. Does that mean say in this case, 1 – 2 members give written notice of the meeting? Accepting this to be so, notice of this meeting was given by Mr Linstucky on 3 February 2004. It was also signed by Mr Aini and Mr Buhupe and Sir Rabbie Namaliu. This notice complied with the notice and numerical member requirement in Clause 39.1.

On the issue of whether the defendant was "absent" thereby allowing the second plaintiff to convene the meeting, Mr Wilson, when pressed by the Court was unable to give a precise definition of the phrase "in his absence". He submitted the defendant was not absent from the National Capital, that in fact he had called the meeting of the Parliamentary wing to take place on the same day, and therefore, Mr Linstucky could not have validly called for the meeting under Clause 39.1.

Mr Aisa also was unable to give a precise definition of this phrase either. He submitted the defendant was absent because a number of letters written to him by the members of Parliamentary wing to convene a meeting received no response from him. This shows he was absent. For this reason, the second plaintiff was entitled to call the meeting. He was not present at the very time and place at Parliament House where he scheduled the meeting to take place when the rest of the members were there. This confirms he was absent.

In my view, both parties have read the phrase "in his absence"in Clause 39.1 in isolation to the first part of Clause 39.1. Under the first part, the Parliamentary wing is required to meet at least once "during each meeting of the National Parliament." It implies that members of the Parliamentary Wing will be present and in attendance at or in the precincts of the National Parliament House when the Parliament meets. This is because the Parliament house is the normal and perhaps the only operating base or place of business for members of the Parliament when the Parliament meets. The first part of this clause shows that a meeting of the Parliamentary wing will coincide with the meeting of the Parliament, when all the Parliamentary members are expected to be in attendance. This makes practical sense because members come from different parts of PNG and a meeting should be convened in the Parliament premises when they are all expected to be present and attending the meeting of Parliament. It is also intended that the Parliamentary Wing will normally meet at the Parliament house. If the leader of the Pati is completely absent from the National Parliament when Parliament meets, then the Deputy Leader may call the meeting. I do not think "in his absence" means he is "absent", or not present at or in attendance at the time and place the meeting is convened by the Pati Leader or his Deputy. The phrase means a total absence of the leader from the Parliament for duration of the meeting of the Parliament.

In the present case, it is not clear from the evidence if the Parliament was meeting on or about 23 February 2004 but it is clear that the defendant was present in, at around the Parliament house in the National Capital District, that he was conducting the Parliamentary business of the Pati, and that he gave notice of the meeting to take place on the same day, at 10 a.m. but at a different location outside the Parliament house, namely at Section 62 Lot 7 Davatari Drive, Port Moresby. This is confirmed by Mr Linstucky in his letter to the defendant dated 3 February 2004 where he states:

"We concur with the Acting Leader's calling of the Parliamentary Wing meeting on 23 February 2004. Despite the failure of providing a venue and date for the meeting, we presume that the meeting will be held at the Parliament House Bottom Ground Level conference room commencing at 11.00a.m.. . . ."

"In accordance with section 39.1 of the Pati constitution, this letter also serves as formal notice of meeting of the Parliamentary Wing, in the event that you are absent, to be convened on Monday 23 February 2004 at the Parliament House Bottom Ground Level conference room commencing at 11.00a.m, as already agreed with at least four members of the Parliamentary Wing to primarily determine the Leadership of the Pangu Pati and other pertinent issues. We formally propose that the agenda should include:

(1) Election of Parliamentary Leader and Deputies

(2) Pati's nominees for Ministerial portfolio(s)

(3) Pati's nominees for Parliamentary Chairmanship(s)

(4) Pati's Financial Report (1992 – 2003)

(5) Six (6) By-Elections

Do note that these five agenda items are now also proposed for the Parliamentary Wing meeting called by the Acting Leader on 23 February 2004 and would appreciate if you would confirm their inclusion on the agenda no later than Monday 16 February 2004, thereby giving reasonable time for all Members to fully appraise themselves on all issues for informed deliberations at the meeting proper."

I am satisfied from the above evidence that the defendant as the leader of the Pati was present and not absent from Parliament house. Indeed, the defendant was present at the Parliament house at the relevant time and gave notice previously that the meeting would be held presumably at the Parliament house as suggested by the second plaintiff in his letter to the defendant. Going by the Minutes of the two meetings which took place on 23 February 2004, it is clear that, all the six members of the Pati were present at Parliament house because all of them chose to attend either meeting but at different locations in the National Capital. For this reason, I find that the second plaintiff contravened Clause 39.1 of the Constitution by convening the meeting on his own.

On the other hand, the defendant also contravened Clause 39.1 of the Constitution in removing the venue to an outside location. Although the members were expecting the meeting called by the defendant to take place at the Parliament house, he later changed the venue to a different location.

In the final analysis, both meetings were convened in contravention of Clause 39.1. I find the notice of meeting given by the second plaintiff to be not in accordance with Clause 39.1 and therefore invalid. Likewise, the defendant's sudden change of venue to a location outside the Parliament house, without prior notice to members contravened Clause 39.1 of the Constitution.

On the question of quorum for the meeting called by the second plaintiff, Clause 39.2 is applicable. As I indicated during submissions, this clause is badly drafted. I take "Parliamentary Will" to mean "Parliamentary Wing." Clause 39.2 also does not say what it means by "one half of the members present." Does it mean only ½ of those who attend the meeting and are physically present can constitute a quorum? But this doesn't make sense. It does however make sense when read together with the first part of Clause 39.2. It must mean ½ of the members of the Pati present and in attendance when the Parliament meets. In the present case, all six members were present at Parliament house. The quorum required for meeting was therefore three members. The meeting called by the defendant lacked quorum whereas the meeting called by the second plaintiff had the quorum.

On the question of the decision made in the two meetings, the meeting called by the second plaintiff gave notice of the agenda for election of the Pati Leader of the Pati's Parliamentary Wing. However, there was no express mention of the removal of the defendant as the leader in this notice. Taking the matter of "election" and "removal"as required by s.25(4)(d) of the Organic Law, both decisions must be based in accordance with democratic principles.

It is only logical and democratic and consistent with s.25(4)(d) of the Organic Law that in a situation where the position of the leader of the Pati is occupied by a Member, his "removal" must be decided first. If he is so removed, then it is open for the position of the new leader to be decided upon. The process and method of decision-making is by "election"and "vote", as prescribed by Clause 38.1 of the Constitution and s.25(4)(ii) of the Organic Law. Therefore, when notice of the meeting is given under Clause 39.1, it should have expressly stated the agenda of the meeting to include "removal" and/or "election" of the leader of the Pati's Parliamentary Wing. For this reason, I accept Mr Wilson's submission that the second plaintiff's notice was defective in that it was only for election of a leader and not removal of defendant as the Pati leader.

Was there a resolution reached as to the removal of the defendant as the incumbedent leader followed by the election of the new leader? The minutes of the meeting show that although the position of the defendant as an effective Pati Leader in the 2002 elections was discussed, there is no record of a decision being made, by vote, to remove him as the Leader. No motion was put and no vote was taken to remove him as the leader of the party. This is contrary to s.25(4)(c)(ii) and s.25(4)(d) of the Organic Law and Clause 38.1 of the Constitution which says there must be a decision made by election, by "vote". It is also undemocratic to elect a new leader of the Pati without validly removing the incumbedent Pati Leader, for two persons cannot occupy the same position. The

Minutes clearly show no such decision was made. The pertinent parts of the Minutes reproduced below clearly show this. It states:

"Election of Parliamentary Leader and Deputy Parliamentary Leader.

"The Chairman called for comments from Members before the meeting proceeded with the election. The Chairman started by reiterating that the reasons for change of Leadership was first discussed on or about October 1997 at Port Moresby and since than, several attempts over nearly seven (7) years have been made to change the Leader but were always thwarted.

"The Member for Telefomin in his comments stated that change is imminent and necessary as the current A/Leader had demonstrated dishonesty, lacked credibility and the performance at the 2002 Elections showed clearly that he lost the support of the people."The Member for Kavieng in his comments also restated the reasons for a change. He said the current leadership lost the support of the Pangu Pati Members, even other Members of Parliament and also many supporters of the Pati throughout the country.

"The Member for Kokopo reiterated the sentiments expressed by the Member for Telefomin and the Member for Kavieng. He continued by saying that the A/Leader had taken the Pati to two (2) elections and the results were very disappointing and if the Parliamentary Wing allowed him to continue there may be no Pati after the 2007 National Elections.

"He further stated that the Pati lost a lot of support and especially credibility during his ten (10) year tenure and the many supporters continuously and consistently called for his removal if the Pati was to survive. The other reason is that many Branch Operations no longer existed and this failure lay directly with the Parliamentary Leader and the National Executives of the Pati. Therefore, given all these reasons the current Leadership must change as part of the re-building process.

"The chairman after listening to comments from the Members, then called for nominations. The Member for Telefomin nominated the Member for Kokopo and since there were no other nominations the Member for Kavieng moved that the nomination be closed and seconded by the Member for Telefomin. The motion was carried.

The Chairman then asked for a motion to determine the Leadership thus:-

"Motion is that the Member for Kokopo be endorsed as the new Parliamentary Leader of the Pangu Pati.

"Moved by Member for Telefomin.

"Seconded by Member for Kavieng.

"Member for Kokopo accepted the nomination willingly.

"The motion was carried.

"The Chairman asked the newly elected Parliamentary Leader to say a few words. The new parliamentary leader thanked the Caucus for their support and said that he is humble by the honour and that he will do his best to rebuild the Pati. But reiterating that it won't be a easy task. The rebuilding of the Pati to its former glory as the political icon would be paramount. He then suggested that the current Chairman remain to Chair the meeting – the Chairman agreed to do gladly."

In my opinion, even if the second meeting was validly convened and chaired by the second plaintiff with the required quorum, the decision reached to elect the new Parliamentary Leader in the first plaintiff was done without removing the incumbedent leader of the defendant, by vote. Therefore the first plaintiff's election is to a position for which there was no vacancy. The decision is invalid, void ab initio and of no effect whatsoever. In the alternative, even if such a decision was made, such decision was not made by a vote taken and recorded. Therefore the decision is invalid, void and of no effect whatsoever for this reason as well.

Having reached the above conclusion, it is not necessary to consider other procedural issues on the calling of the two meetings on 23 February 2004 addressed at length by both counsel.

It is clear to me from the evidence that the Leadership of the Pati for the current leadership of the Parliament has not yet been settled as required by s.25(4)(d) of the Organic Law and Clause 39.1 of the Constitution of the Pati. A review of the defendant's position as the Pati leader and the possible election of a new leader after the last 2002 general elections is overdue. The Organic Law s.25(4)(c) and (d) requires the leadership issues of removal and /or election of the Pati Leader to be decided immediately or as soon as possible after a General Election and in a democratic manner. In my view that issue must now be addressed properly by the Parliamentary Wing. It is not my desire to step into the defendant's shoes to require a meeting to be conducted to decide this issue, and to fix the agenda for this political meeting, but given the unco-operative attitude taken by the Defendant and the friction between two factions of the Parliament Wing, this Court must unfortunately, as of necessity, intervene to require the meeting to take place in order to ensure that the provisions of the Constitution and the Organic Law referred to are complied with.

Before I make the formal orders, I wish to say something about the fundamental flaws and anomalies in the Constitution of the Pangu Pati I have referred to in my judgment. The Constitution of the Pati plays a pivotal role in the Political Party System under the Organic Law, in the area of membership of the Pati and election of the Pati Leader of the Parliamentary Wing of a Political Party. The Pati Constitution however pre-dates the Organic Law and the evidence is that it has not been modified to conform to the general framework on these matters set out by the Organic Law. There is an urgent need for the Pangu Pati to amend or modify the Constitution. This also goes for any other Political Party in the current Parliament whose Constitution pre-dates the Organic Law and has not been modified.

I make the following orders:-

1. The meetings of the Parliamentary Wing of the Pangu Pati called by the defendant on 26 November 2002 and 23 February 2004 and the decisions made in these meetings invalid, void ab initio and of no effect whatsoever.

2. I declare the Meeting convened and chaired by the second plaintiff on 23 February 2004 and the decision made in that meeting to elect the new Parliamentary Leader in the form of the first plaintiff invalid, void ab initio and of no effect whatsoever.

3. Consequently, I declare the subsequent recognition by the Commission and the Speaker of the National Parliament of the first plaintiff as the leader of the Pangu Pati both invalid, void and of no effects whatsoever.

4. I declare the first, second and third plaintiff remain members of the Pangu Pati's Parliamentary Wing at all times up to this day.

5. I declare the defendant remains the leader of the Pangu Pati at all times up to this present day.

6. I order all the six members of the Parliamentary Wing of the Pangu Pati shall meet at a venue within the Parliament house on the first day of the next sitting of the Parliament in November 2004 or whenever the Parliament next meets, on a date and time to be fixed by this Court or by agreement between the parties. The only agenda for this meeting shall be, first the removal of the defendant as the Pati Leader, and second if so removed, the election of a new Pati Leader. The decisions to remove the defendant shall also be made by 2/3 of all six (6) Parliamentary members. A decision shall be made by casting of vote. The meeting and decision reached shall be witnessed by the Registrar of Political parties, Mr Paul Bengo and the Clerk of the National Parliament, Mr Ano Pala. The Public Officer of the Pangu Pati, Mr Thomas Taian, shall also attend the meeting and accurately record the Minutes of that meeting and he shall report to this Court on the outcome of that meeting, by filing an affidavit annexing a certified copy of the Minutes of the meeting, within 48 hours from the conclusion of the meeting. The Clerk of the Parliament shall advise the Speaker of the National Parliament on the results of the election and the Speaker shall give effect to the decision of the Parliamentary Wing reached pursuant to this order.

7. In the event that the terms of para 6 (supra) of this order is not complied with for whatever reason, I grant liberty to either party to apply for further orders.

On the question of costs, it is fair to say that both parties have won on the two main issues. Therefore it would not be fair to penalize any party with costs. I order that each party shall bear their own costs of these proceedings.

Lawyer for the plaintiffs: Henao Lawyers.
Lawyer for the defendant: Warner Shand Lawyers.