Enga Interim Provincial Government v Pyaso [1996] PGNC 32; N1477 (13 September 1996)

Unreported National Court Decisions

N1477

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 330 OF 1996
ENGA INTERIM PROVINCIAL GOVERNMENT - PLAINTIFF
AND
PETER PYASO - FIRST DEFENDANT
FRANK TENGEN - SECOND DEFENDANT
NAH TAU - THIRD DEFENDANT
TUMU AWALI - FOURTH DEFENDANT

Mount Hagen

Akuram J
12-13 September 1996

CONSTITUTIONAL LAW - Organic Law on Provincial Governments and Local-level Governments - Vote of no-confidence in head of Local-level Government - Contrary to Interim provisions of Organic Law - section 125 (1) & (2).

On an application for declaratory and restraining orders:

Held

1. ـ T6e head of a LocalLocal-level Government is selected upon consultation between the Open member and Provincial member in the Province and referred to the National Executive Council who than advises the Head of State to effect appointment as a member of the Interim Provincial Government established under Section 123 - Section 125 (1) & (2).

2. &##160;; W60; Where tere the Organic Law min the Provincial and Local-level Governments imposes a duty or obligation it mustarrie. Thty is under section 125 125 (1) & (2).

Counsel

Mr p>Mr D Coyle for the Applicant/Plaintiff

13 September 1996

AKURAM J:&#16> Th an ex parte applicationation for declaratory and restraining orders against the Four Defendants. The Plaintiff claims in the Originating Summons filed 12ptember 1996 for following orders:

1. & ; De0laration that Baat Balus Pupi is the duly electedident of Kompiam Local Government Council having replaced tced the First Defendant by vote of the said Council on 23 October 1995.

3. <&#160 &#160 Decion that J Pnes Pakio ikio is the duly elected President of Ambum Local Government Council having replaced the Third Defendant by vote of the saincil Augu96.

4.&##160; #160; Decl Detiaratiorathon thon that Yaka Maso is the duly elected President of Wapenamanda Local Government Council having replaced the Fourth Defendant by vote of the said Council on 6 September 1996.

5. & D60; Declaration that, upon removal from their respective positions as Heads of the Local-level Governments referred to in the precedinlarat eachhe FiSeconird and Fourth Defe Defendants ceased to be a member of the Ethe Enga Inga Interinterim Prom Provincial Assembly.

6. ټ D60; Declaration that tho e of the First, Second, Third and Fourth Defendants who were previously members e Enga Interim Provincial Executive Council ceased to be members of the said Executive Coun Council when they ceased to be members of the Enga Interim Provincial Assembly.

7. & O60;r, dendine suit and pand permanently, that the First, Second, Third and Fourth Defendants and each of them be restrained, by themselves and by their respective servants and agents, from pting t as lding themselves lves out tout to be o be members of the Enga Interim Provincial Assembly.

8. ـ O60; Order, pending suit and permanently, that the First, Second, Third and Fourth Defendants and each of them be restrained, by themselvesby thespecservand agents, from purporting tong to act as or holding themselves out to t to be mebe membersmbers of the Enga Interim Provincial Executive Council.

9. ҈ F60; Further or othdr or

10. &#1osts. wevHowever, inr, in his notice of motion filed the same time he moved the court for the following orders:

1. 0;; Ong suit that that the the First, Second, Third and Fourth Deth Defendafendants ants and each of them be restrained, by themselves and by their respective nts aents, purporting to act as or holding themsehemselves lves out tout to be members of the Enga Interim Provincial Assembly.

2. Order pending suit that the First, Second, Third and Fourth Defendants and each of them be restrained, by themselves and by their respective servants and agents, from purporting to act as or holding themselves out to be members of the Enga Interim Provincial Executive Council.

3. &#O60; tder thattime for efor entry of this order, made ex parte in the first instance, be abridged and that this order be entered forthwith.

4. Direct theinanimmoot, n ofce of e of motiomotion andn and supporting affidavit filed in these proceedings be served as soon as possible on all Defendants and the n of m be murtheurnab such dayh day as t as the Cohe Court surt shall hall thinkthink fit.

5. ټ&#F60; errther or otor other orders.

6. ; C60ts.

The evidencidence that Applicant relied on in support of the applon isd on ffidavit of the Acting Governor, Danleyanley Tind Tindiwi oiwi of the Enga Interim Provincial Government. His evidence iically as foas follows from the affidavit that:

1. ;ټ I60; I am tham the Deputy Governor of Enga Province (the “Province&#82pursuant to section 125 (1) (d) of the Organic Law on ProviProvincial Government and Local-level Government (t8220;Organic Law&#8221av221aving been the person who owho occupied the office of premier of the previous Enga Provincial Government.

2. ;ټ As Depoty Governorernor of the province, I am pres presently acting as Governor of the Province in the absence of the Hon. Jy Bal who een suspended from office pursuant to section 28 of the Organic Law on w on the Dthe Dutiesuties and Responsibilities of leadership.

3. ـ Tte ma sers stated herein rein which are within may personal knowledge are true. The other matters sthereinerein are true to the best of my knowledge, information and belief.

4. ;ټ Each ofch of irst,irst, Second, and Fourth Defendefendants was the Head of a Local-level Government innt in the Province and was, pursuant to se 125 b) ofOrganw, a member of the Enga InterInterim Prim Provincovincial Assembly (the “AssemblyRy”).

5. ټ&#A60; ednexed herethereto and marked with the letters indicated are true copies of the following:

Annexure “A&# - Mi of Mg held 23 October 1995 - Kompiam Local Government Council;

AnnexAnnexure &ure “#8220;B” - Minutes of Meeting held 22 August 1996 - Paiela Hewa Local Government Council;

Annexure “C” - Minutes of Meeting held 16 August 1996 - Ambum Local Government Council;

Annexure “D” - Minutes of Meeting held 6 September 1995 - Wapenamanda Local Government Council.

6. By virtue of oecti4 s 1 12nd 128 of the Organic Law, I am Acting Chairman of the Assembly and of the Enga Interim Provincial Executive Council (the “PEC”). By virtue of s () of rganirganic Law, only a mema member ober of thef the assembly may be a member of the Assembly, and therefore of the PEC.

7. ـ&#1s appears from thom the annexures hereto, each of the the First, Second, Third and Fourth Defendants has been removed as head o releLocall Government and as such each of the Defendants has ceased to be a memb member ofer of the the Assembly.

8. ;ټ Notwithtwithstanditanding the foregoing, since ceasing to be members of the Assembly, the First, Second, Third and Fourfendaave pted to attend and participate in and vote at Assembly meetings and thre threaten aten to coto continue to do so.

9. ـ T60; The assembly proposes to meet next week and the Plaintiff fears that the First, Second, Third and Fourfendants will again purport to attend and participate in and vote at that meeting.

1

10. ; Thentiff seeksseeks to prto preserve the integrity and good order of meetings of the Assembly without resort to physical means to prevent persons who are not rs ofAssemrom interfering with and disrupting theg the busi business ness of such meetings.

The Plaintiff therefore seeks orders pending suit, orders in the terms of the Originating Summons and the Notice of Motion filed. The n why Mr Tindiwi stoodstood in is because the Governor, Mr Jeffrey Balakau has been suspended pursuant to section 28 of the Organic Law on the Duties and Responities of leadership.

The Plaintiff is relying on secn section 125 (1) (b) of the Organic Law on Provincial Governments and Local-level Governments. I se sections 4, 123, 124, 124, 125 and 128 below as they are related in relation to the powers, functions and duties of the Interim Provincial Government. Section) is of applicationation in the present case of “Interim Stage” of the Provincial Governments and Local-level Governments.

“4. &##160;; Applicaplicatio (1) &##160;< Th0; The systeProvincial Gial Governments established by this Organic Law applies to the Governof thionaltal District and the provisions of the the OrganOrganic Law relating to Provincial Governmvernments apply to the National Capital District.

(2) ; For the perioa on and frod from the date of coming into operation of this Organic Law until the date fixed for the return of the writs following the next general election held after the date of coming into operation:

(a) ҈& the syse system ofem of Interim Provincial Governments provided for in Sub-division V1.3.C shall apply; and

(b)ټ&##160; the provisions of the remrinder of this Organic Law shall apply only only to thto the extent necessary to enable the operation of the Interim Provincial Governments in accordance with Sub-division V1.3.C.”

The provisions of Subsection (2) do not apply in relation to Bougainville Province and the National Capital District.

“28. Abolitionocal-Level Governovernments

Subject to the Constitution, a Local-level Government shall not be abolished or in any way amated ts arall not be altered, without the prior consent of the National Executiveutive Coun Council acil and of the Provincial Assembly.

Subdivision B - Legislative Arm of Local-level Governments

29. Cition of Local-Level Gove Governments

(1) Subject to this Organic Lhw, the members of the legislative arm of a Local-level nmentl conof:(a) &1160;#160; the the head head head of the Local-level Government who shall be elected in accordance with an Act of the Parliament

)ټ&##160; such number of local membrrs, representing local ocal wardswards, ele, elected cted in accordance with an Act of the Parliament; and

(c) ҈& in the the case oase of a Local-level Government in an urban area, three members of whom:

(i) & o60;shae be l representasentative of workers’ organizations nominated by the Papua New Guinea Trade Union Congress; and

(ii) &##160;; one shae shall be l be a representative of employers organizations nominated by the Employers’ Federation; and

(iii) one shall be a reprasent oive of women’s organizations nominated in accordance than Act of the Parliament, appointed by the Local-level Government, and

(Paragraph (c) repealed and replacedmendmo 1 Lp>

(d)&#1d) < &160; ; incthe of a Lo a Local-levl-level Government in a rural area, two members who shall be representatives of women’s organizations nominated in accordance with an Act of the Parliament appointed by the Local-level Government.

(Paragraph (d) added by Amendment No 1 Law)

125. ҈ Composition of Inte Interim Provincial Governments

(1) An Interim Provincivl Goenrnment established under section 123 which succeeds a previous ProvinGovernment shall comprise:

(a) &##160;meml rs oers of the the National Parliament from that province; and

(b) &#1uch number of:

(i

(i) ټ&#m60; rsmbers of thof the previous Provincial Government; or

(ii);ټ&##160;s of Local-level Governments; or

(iii) & p60; p60; prominrom personersons, selected in accordance with Subsection (2) and appointed by the Head of State, acting on the advise of the National Executive Council; and

(Paragraph (b) repealed anlacedmendment No 1 Law1 Law)

)

(ba) one represive tf the urbanurban Local-level Governments, nominated by the Papua New Guinea Urban Authorities Association, appointed by the Head of State, acting on the advice of the National Executive Cl; an

(60; < & thr;e persons:

(i)p>(i) ټ&##160; f60; from a om a list comprising not less than five names of persons submitted by the Provincial Executive Council concerned; and

(ii) ;&#16pointedhe Hdhe He Stat State acting on g on the athe advice of the National Executive Council; and

(d) &#160 pereon occu the e of e of er in the previous Provincial Governmenrnment.

>

(2) ټ Fer thpopurposes ofes of Subsection (1) where

(60;&##160; thbersmof t of t of the prhe prhe previouevious Provincial Government are Heads of Local-level Governments, the Opeber, nsult with the Member mber of Parliament representing the province, shall select such number fror from them the members of the previous Provincial Government to become members of the Interim Provincial Government; and

(Paragraph (a) repealed and replaced by Amendment No 1 Law)

(b) &ـ there aere are no e no Local-level Governments in an open electorate, or part of an open electorate, the Open Member shall, in consultation with the member of the Parliament representing the provincial electorate, select:

(i) &##160; such number from thom the members of the previous Provincial Government; and

(ii) ټ ahy oterr person wion with high standing, from within that open electorate or part of that open electorate as the case may b be ms of nterim Provincial Government; and

(c) t60; there her are Local-ocal-level Governments existing in an open electorate, and the members of the previous Provincial Government are not heads of the Local-level Government, the Opmber , in ltation with the the membemembers ofrs of the Parliament representing the provincial electorate, select such number from amongst the heads of Local-level Governments to be members of the Interim Provincial Government. (emphasis adde>

(3)&#16) ; The member ofPthe Parliamrliament representing the provincial electorate who is not disqualified by virtue of Section 19 be tterimrnor e Pro and Chairman of thof the Interim Provincial Assembly, unlessnless he d he decideecides nots not to take up the position within 21 days from the date of the establishment of the interim provincial Assembly in which case the Assembly shall elect from among the other members of Parliament an Interim Governor of the Province who shall also be the Chairman of the Interim Provincial Assembly.

(4) &##160;he tent vent that that the other Members of Parliament referred to in Subsection (3) are disqualified by virtue of section 19 or are otherwise unwilling or unable to take up the position of Interim Governor and Chairman of the Interim Provincial Assembly, the members of the Interim Provincial Assembly shall elect from among their members referred to in Subsection (1) (b), an Interim Governor of the province who shall also be the Chairman of the Interim Provincial Assembly.

(5) Subjectuto Stisec(5An the, the Premier of the previous Provincial Government shall become the Interim Deputy Governor of the Province and the Interim Deputy Chairman unless he decides not to be a member within 21 days from the date of establishment of the Interim Provincial Assembly in which case, the Interim Provincial Government shall elect the Interim Deputy Governor of the Province who shall also be the Interim Deputy Chairman, from amongst the members referred to in Subsection (1) (b).

(Subsection (5) amended by Amendment No 1 Law)

(5A) ҈ An Interim Provincivincial Assembly may, by a two-thirds absolute majority vote, resolve that the premier of the previous Provincial Government shall not continue to hold the offices of Im Deputy Governor and InterInterim Deputy Chairman and where an Interim Provincial Assembly so resolves the premier ceases to hold such offices and the Interim Provincial Assembly shall elect an Interim Deputy Governor, who shall be Interim Deputy Chairman, from amongst the members referred to in Subsection (1) (b).

(Subsection (5A) added by Amendment No 1 Law)

(6) &##160; The tote total numb r oferembers of an Interim Provincial Government shall not exceed the total membership of revious Provincial Government.

(7) The remuneration, pon, privileges and other benefits of office of the members of the Interim Government shall be as determined by the Salaries and Remuneration Commission.

(8) 䃘&#1he In Provincialncial GoverGovernmentnment shal shall determine its own procedures, quorums and number of meetings.

(9) &#1he Meober e thliaarnt rent representing the provincial elel electorate who holds a position mentioned in section 19 (1) (b) may resiat pon to e therim Governor and Chairman of an Interim Provincial Governmentnment.

.

(

(SubseSubsection (10) repealed by Amendment No 1 Law)

128. &#1nterivincial cial Executxecutive Council

(1) ـ An Interim Provincivincial Executive Council shall consist of:

(a) the Interim Chairmad; an

(b) ـ&#1he puty Chairman;rman; and

(c) &1160;#160;&#160 &#160 Chairman oh of t of the pere permanent committees of therim Pcial tive Council; and

(d) ـ&#1ot lnot lnot less less tess than two Open Members who are not disq disqualified under Section 19 (1) (b) elected by the IntProvi Assembly.

(Subsection) (1) repealed and replaced by Amendment No 1 Law)

(2) An Interim PcivinExel tiveutive Council shall exercise and perform all the powers and functions of the Provincial Executive Councier thganic

)ټ For the purposes of Subsectioection (2)n (2), the, the Inte Interim Crim Chairman and the Interim Deputy Chairman shall exercise and perform all the powers and functions of the Governor and Deputy Governor, respectively.

(Subsection (3) repealed and replaced by Amendment No 1 Law)”

The Applicant/Plaintiff is relying on section 125 (1) (b) in that only a person that is a member of the previous Provincial Government or a head of the Local-level Government or prominent person selected in accordance with subsection 2 and appointed by the Head of State, acting on advice by the National Executive Council, can be a member of the Interim Provincial Government established under section 123 which succeeded a previous Provincial Government.

He says that the four defendants in this proceedings have on various dates during various meetings of the respective Local-level Governments have been voted out of the office by the head of their respective Local-level Governments, and therefore are not eligible to be members of the Interim Provincial Government Assembly and its Executive Council.

What section 125 (1) (b) (ii) is saying is that once the head of a Local-level Government is selected in accordance with subsection (2) the National Executive Council will then have to advise the Head of State to effect the appoint as a member of the Interim Provincial Government established under Section 123.

It is therefore subsection 2 that has to be looked at closely. The drafting of that stionction is so poorly done that I find it very difficult to interpret its meaning, purpose or intention. However, my percn of n be n be in the following terms:

(2) & For the pure purposes of s of subsection (1) (b), where:(a) ҈ eme ms oers of the the previous Provincial Government are here heads of Local-level Governments, the ond prial ms of National Parliament are to consult and shall select such member from the members of thof the pree previousvious Provincial Government to be members of the Interim Provincial Government.

(b) ټ&#and if d if no Loco Local-level Government is in an electorate, the open and provincial members shall consult and select as in 1 (b) (i), (ii) & (iii).

(c) ҈ ther Larel-ocal-leal-levellevel Government members of Local-level Government are not members of the Provincial Government then, the and pcial rs of Parliament are to consult and select such member amongst the head head of L of Local-ocal-level Government to be members of Interim Provincial Government.

So subsection 2 (a) says that if the members of the previous Provincial Government are members of the Local-level Government, they cannot be members of the Interim Provincial Government unless selected by the open and Provincial members of the National Parliament upon consultation.

Subsection 2 (b) says if there were no Local-level Government in the electorate then the open and provincial members of Parliament must consult and select:

(i) ҈& a60;mbemember from from the previous Provincial Government; and

(ii) proy nentipe withe elete tote to be in the Interim Provincial Government.

Subsection 2 (c) (c) says says if thif there is in existence Local-level Gover in actorand th prevmember of Provinciaincial Govl Governmeernment isnt is head head of Local-level Government, the open and Provincial members are to consult and select such member from amongst the heads of Local-level Government to be member of the Provincial Government.

His Honour Woods J in OS 446/95 Peter Pyaso v Balus Pupi and Kompiam Local Government Council was not faced with the problem I am faced with in that he was reviewing the manner in which Peter Pyaso was voted out. In doo he did not have to e to look at section 125 (1) & (2) situation, that is why he held that the vote of no-confidence in Peter Pyaso was proper and so the nesident voted into the office replacing Peter Pyaso was cors correct. In the present case, I amdasked to make certain declarations based on such votes of no-confidence on the four defendants voting them out of the office. ing so, I have to be sied sied that section 125 (1) & (2) procedures are properly erly followed. As I have attempted to set out the meaning of those tbsections above, I am not satisfied that subsection (1) (b)) (b) nor is subsection 2 are fully complied with.

Subsection (2) sut the procedure of selection of heads of Local-level GoverGovernment to be members of the Interim Provincial Assemblies. Under law, only two peopleeople are empowered to say who should be members of the Interim Assembly. that is done, than theedureedure under subsection (1) is to be followed. That is, some one in tterinterim Assembssembly of the Interim Provincial Governmetablished under section 123 is to advise the National ExecuExecutive Council who then advises the Head of State to appoint the selectuncillor of the Local-levellevel Government to be a member of the Interim Assembly. There is noence before thie this court that National Executive Council has been advised nor the Head of the State has made the following people to be members of the Interiembly:

1. ҈& P60;s alus alus Puus Pupi;

2. Aiyala Wapa;

3.n Yanes Pakio; <#14.& Yako M/po,

r

I therefore refuse the Application sought in this proceedings. To make such decions is tois to go against the provisions of Section 125 (1) & (2) which comes under Division VI. 3.C dealing with Interim Provincial Assembly under the OrgLaw on Provincial Governments and Local-level Governments.&nts. Where the Organic Law on Provincial and Local-level Government imposes a duty or obligation it must be carried out. Here in my, section 125 (125 (1) and (2) imposes a duty on the Open Ms and Provincial members of Parliament to consult with each each other and than to advise the NEC who then advise the Head of State te appointments for membershbership of the Interim Provincial Government. It is not the functionhe Cthe Court to interfere with the functions of the National Members of Parliament, the NEC and the Head of State in carrying out their duties. However, s are bound to ento ensure that the letter of the law is adis adhered to.

Lawyer for the Applicant/Plaintiff: Pato Lawyers