Ipatas v Enga Interim Provincial Government [1996] PGNC 53; N1491 (29 November 1996)

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OS NO 370 OF 1996
PETER IPATAS - Plaintiff
V
ENGA INTERIM PROVINCIAL GOVERNMENT - First Defendant
DANLEY TINDIWI - Second Defendant

CONSTITUTIONAL LAW - Organic Law on Provincial Government and Local Level Government - Election of Deputy Interim Governor and Deputy Interim Deputy Chairman - s. 125 (5A) of OLPG & LLG.

CONSTITUTIONAL LAW - OLPG & LLG Interim Provisions - Standing Orders - Place of holding Assembly meetings - Standing Orders subject to OLPG & LLG. Interim Provisions.

CONSTITUTIONAL LAW - Originating process discretion - O. 4. R 3 (1) & (2) - mode of proceedings appropriate to circumstances.

On an application for declaratory and restraining orders declaring Plaintiff as the properly elected Interim Deputy Governor and Interim Deputy Chairman of Enga Interim Provincial Government:

1. That the Plaintiff was duly elected by the Enga Interim Provincial Assembly on 28th June 1996 as the Interim Deputy Governor of Enga Province and as the Interim Deputy Chairman of the Interim Provincial Assembly of Enga Province and as such continues to hold such offices;

2. That the Standing Orders of an Interim Provincial Government as adopted from the previous Provincial Government are subject to the Interim Provisions of the OLPG & LLG and do not over-ride it;

3. That court has jurisdiction to consider compliance with Constitutional requirements as to convening of meetings of Assembly but not to consider compliance with Standing Orders governing the conduct of such meetings. That is, the decision to hold meetings or decide the procedures and conduct the daily operations of the running of the business of the Interim Assembly is an internal matter, which the Assembly can decide for itself.

Paul Kipo v Rova Maha [1994] (Unreported Judgement) N1252 dated 18th August 1994

Gulf Provincial Government (in suspension) v Minister for Village Services [1994] PNGLR 435

Organic Law on Provincial Government and Local-level Governments of 1995 (as amended)

AKURAM J: The plaintiff is seeking amongst others the following orders by way of an Originating Summons filed on 20th August 1996 that:

1. A declaration that the Second Defendant, Danley Tindiwi, ceases to hold the offices of Interim Deputy Governor of Enga Province and Interim Deputy Chairman of the Interim Provincial Assembly of Enga Province as of 28 June 1996.

2. A declaration that the Plaintiff, Peter Ipatas, was duly elected by the Enga Interim Provincial Assembly on 28 June 1996 as the Interim Deputy Governor of Enga Province and as the Interim Deputy Chairman of the Interim Provincial Assembly of Enga Province and as such continues to hold the two offices.

3. An order that the Second Defendant, Danley Tindiwi be restrained from holding himself out as the Interim Deputy Governor of Enga Province and as Interim Deputy Chairman of the Interim Provincial Assembly of Enga Province.

The facts are discussed in the judgment. However, for an understanding of the events leading to the case, I set out the main events chronologically as follows:

1	4/4/96	Meeting of Interim Provincial Assembly appointing 1st and 2nd of May 1996 as dates for next meeting
2	2/5/96	Meeting of Interim Assembly appointing 30th May 1996 as date for next meeting
3	23/5/96	Circular Instruction No 11/96 by Tindiwi issued to all Assembly members, Chairman of Committees and Acting Administrator on the subjects of PEC and Assembly meetings being deferred this month to July
4.1	30/5/96	Meeting of Assembly held despite above Toksave or Circular No 11/96
4.2	30/5/96	Swearing in of Jacob Kambilyo as Chairman of Health Committee and Ipatas as Chairman of Education Committee
5.1	3/6/96	Termination Notice by Tindiwi to Neakson effective as of 10/6/96
5.2	3/6/96	Letter from Ipatas to Tindiwi advising Tindiwi of Resolution No 23/96 demanding Tindiwi to resign within 14 days from 30/5/96
6	6/6/96	Letter from Acting Administrator to Acting Governor (Tindiwi) that Tindiwi’s dismissal of A Neakson is invalid as Contrary to Public Service Management Act 1996 and Provincial Administrative Staff Act 1986. (S. 19 (2))
7	10/6/96	Termination Notice Served On To Ainu Neakson - Assembly Clerk from Tindiwi
8	25/6/96	Circular Instructions to all Interim Provincial Assembly members through Radio that, “Special Enga Interim Assembly meeting is on 28/6/96”, to be announced on radio on 25th & 26th June 1996, from Ipatas
9	26/6/96	Letter from Tindiwi to Provincial Police Commander Enga that a proposed meeting of Assembly was to be held on 28/6/96 is illegal
10	27/6/96	Letter by Tindiwi to Administrator Talyaga of the unauthorised meeting by Peter Ipatas and provision of vehicles to travel to Hagen

These above I consider to be the main events surrounding the resolution to dismiss Tindiwi out of office and resolution to elect IPATAS into office of Deputy Governor and Deputy Interim Assembly Chairman and PEC Chairman.

1. Whether the Enga Interim Provincial Assembly Meeting of the 28th June 1996 was properly convened under the Organic Law on Provincial Government and Local Level Governments (OLPG & LLG).

2. If yes, was Danley Tindiwi, the Premier of the previous Provincial Government of Enga properly dismissed from the offices of Interim Deputy Governor and Interim Deputy Chairman of Enga Interim Provincial Government and Enga Interim Provincial Assembly.

3. If yes, was Peter Ipatas properly elected into the offices of Interim Deputy Governor and Interim Deputy Chairman of the Interim Provincial Government and Assembly of Enga.

However in the light of the evidence and submissions I have arranged them into three main areas:

(i) Termination of Ainu Neakson as Interim Assembly Clerk and appointing Tipian as Acting Clerk of Assembly, raised by the Defence.

(iii) Henry Waingi’s authority over Ainu Neakson. This issue is raised by the Plaintiff in response to Defence No (i).

(iv) Administrator’s position in relation to recognition or otherwise of Ainu Neakson’s termination.

(ii) Was notice to Tindiwi to resign within 14 days as of 30/5/96 proper and or sufficient notice and be regarded as a vote of no-confidence as under the old system.

(iii) If No 2 is sufficient notice, was Tindiwi’s response a reaction to that notice.

(iv) If No 3 is yes, then was Tindiwi’s response sufficient to have a vote or resolution in his absence.

(v) Are the manner in which the meetings of 30/5/96 and 28/6/96 in compliance with OL on PG & LLG?

(vi) Does the Standing Orders as adopted sufficiently in compliance with OL on PG & LLG Interim Provisions.

Defence Counsel submitted that this action should be by way of Writ of Summons and not by Originating Summons. He argued that the originating Summons process is available only when (a) the sale or principal question at issue is or is likely to be, one of the construction of an Act...or other document, or some other question of law, or (b) in which there is unlikely to be a substantial dispute of fact.

This submission is misconceived because the whole issue and the facts surrounding this case is in fact dealing with the proper interpretation and or application of the Interim provisions of the Organic Law on Provincial Government and Local Level Government. The provisions on Interim Provincial Government are in “Part VI - Facilitative Provisions” and particularly in subdivision 3.C, sections 123 to 132. Section 121 in fact defines “Interim period” to mean:

“The period on and from the date of coming into operation of this Organic Law inrelation to all provinces other than Bougainville Province and the National Capital District until the date fixed for the return of the Writs following the next general election held after the date of coming into operation.”

This means that the only facilitative provisions that operate during the Interim period are those dealing with actions, etc. of the Interim Provincial Government or Interim Provincial Executive Counsel for the purposes of allowing smooth transition from the old Provincial Government system to the new Provincial Government system. Once the Writs following the next general election are returned after coming into operation of the new Organic Law on Provincial Government and Local Level Government. So this case is really disputing the operations of sections 123 to 132, especially 125 and whether the Standing Orders of previous Enga Provincial Government as adopted on 8/8/95 at its first meeting ever apply at all. I am therefore of the view that the Originating Summons process in this proceedings is not an abuse of the process.

The second reason is that O. r. 4 R.3(1) & (2) gives Plaintiff a discretion as to the mode of proceedings appropriate to his circumstances. See NEC & Ors v PEA [1993] PNGLR 264, where it is held:

“An abuse of the process of the court may arise where, in an application for a remedy under O 16 r 1 (1), a party can also obtain a declaration or injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis.”

In the present case, the respondent did not apply for a remedy under O 16 R 1. The only remedy sought was a declaration and, under the Rules, he may choose to proceed by originating summons under O 4 r 3. Our Rules permit such an option. The trial judge distinguished the English rules from our Rules, in that we do not have an equivalent of the English O 5 r 3 (sic). He concluded:

“That rule, it seems to me, points to the obligation to follow (in UK) the O 53 judicial review procedure in the appropriate rights under public law cases. Plainly, the matter now before this Court would be required by O 53 R 1 (1) (B) to be brought by way of judicial review... It may be that an O 4 originated process is intended to allow parties to seek a declaration of law prior to, and to avoid, litigation. But the generality of O 4 r 3 precludes any fixed interpretation that excludes the use of originating process, even when judicial review might be more appropriate. In any case, O 16 r 9 indicates the discretion that remains in the Court to prevent proceedings failing simply because a party adopted an inappropriate procedure.”

This is what the Plaintiff has done here. This argument also fails for this reason.

Although I stated four (4) issues, there are basically two: (i) that of the purported termination of Ainu Neakson as Interim Assembly Clerk; and the other - (ii) Place of Holding Assembly Meetings. I will deal with number (ii) first. There are no provisions in the Standing Orders nor in the Interim provisions of the Organic Law on Provincial Government and Local Level Government as to where the Assembly should hold its meetings. The closest one can get is in Standing Order No 2 & 17.

(a) Call a meeting of the Assembly within 21 days of the return of the writs for a general election; and

What this means is that it is in the discretion of the Speaker to appoint the time and place, etc., for the meeting of the Assembly. It is therefore an internal matter for the Speaker and the assembly to decide. This is further emphasised by Section 125 (8) of the Organic Law on Provincial Government and Local Level Government.

“The Interim Provincial Government shall determine its own procedures, quorums and number of meetings.”

And section 15 (2) of the OLPG & LLG although not applicable during Interim period, furtheron cfirms this which will take effect after general elections in 1997. These two sections and Standing Orders uphold the principle that courts are not to interfere in the internal operations of the Parliament, be it National Parliament or Provincial Assembly as held in the cases of Gulf Provincial Government (insuspension) v. Minister for Village Service [1994] PNGLR 435 and Paul Kipo v Rova Maha (reported judgement) No N1252 [1994], and Rova Maha v Paul Kipo [1994] PNGLR 445.

“The Standing Orders and the rules made for the regulations and control of the business and meetings of the Assembly. They are made by and on the authority of the Assembly itself. Accordingly, where questions arise as to whether the Standing Orders have been complied with or not, the Assembly will decide. Simply put, if the majority of the Assembly is not satisfied that a relevant procedure was followed or that a vote was taken properly, than the majority will ensure that its determination will prevail. That is a solution available to the Assembly. The majority rules...”

So it is not imperative that the Provincial Assembly meeting should take place at a particular place. The OLPG & LLG is silent on this. The same trend is expressed in Standing Order 17 which says that the Assembly shall meet on such days and at such times as the Speaker, subject to the Constitution, may determine. The phrase, “subject to the Constitution”, by virtue of section 136A (Application of Other Laws) would mean subject to the Organic Law on Provincial Government and Local Level Government. Section 136A reads:

(a) Any Organic Law (other than this Organic Law), Act or subordinate enactment; or

(b) Any instrument or document whether made or executed, contains a reference, express or implied, to:

that reference shall, except where the context otherwise requires, be read as a reference to the equivalent provision or office under this Organic Law.” (emphasis added)

Therefore under Standing Order 17, the speaker is the Governor who is the Chairman of the Provincial Assembly and whatever days or times and place of meetings he determine is subject to the Interim provisions of the Organic Law. And because of the fact that current Provincial Government is only an Interim Provincial Government governed only by the Interim provisions under Division 3C of Part VI, section 125 (8) would apply and over-ride Order 17. That is, Order 17 need not be complied with during the Interim period pursuant to section 123 (1) which reads:

“There is established in each province an Interim Provincial Government for the purposes of governing the province in accordance with the provisions of this subdivision for the Interim period.”

This effectively means that for any questions on procedure, quorums and number of meetings, the Interim Provincial Assembly shall determine for and by itself. If the Provincial Assembly decides to ignore the Standing Orders adopted as of 8/8/96, it can do so. The whole intents and purpose of the Interim provisions of the OLPG & LLG commencing from section 123 to section 132 is not to disturb, interfere nor interrupt the smooth flow of the new Provincial Government being established and put into full effect after the next general elections in 1997. In this regard, the Interim provisions of the Organic Law lay down the bare minimum procedures, administrative structure or framework for the interim functioning of the operation of the Provincial Government. I will return to this argument when I deal with section 125 (5A) on the OLPG & LLG later.

PURPORTED TERMINATION OF CLERK OF ASSEMBLY, AINU NEAKSON BY ACTING GOVERNOR, DANLEY TINDIWI

The defence has argued that the Clerk of Assembly was terminated as of 10/6/96 by a notice of letter dated 3/6/96. Their argument is that the Acting Governor has power to terminate summarily the Clerk of Assembly. The defence did not point to which law governs termination of the Clerk of Assembly by the Governor. Plaintiff referred me to the Enga Provincial Government, Provincial Administrative Staff Act 1986. Defence argues that that Act is not applicable but the “Enga Employment Authority (Conditions of Employment) Regulation 1988 apply which is authorised by section 25 of the Enga Provincial Government, Provincial Administrative Staff Act 1986. Defence submitted that according to section 23 (1) & (2) the Enga Employment Authority shall advise the Provincial Executive Council on positions in the Enga Department which are not in Provincial Secretariat to be controlled and supervised by PEC. That is why the PEC had passed a resolution to effect the termination Notice by Acting Governor to Clerk of Assembly. As a consequence, Ainu Neakson is no longer the Assembly Clerk and therefore not the proper person to take down the minutes of the meeting on 28/6/96.

Plaintiff on the other hand submits that the Acting Governor had no power to terminate Clerk of Assembly. So Mr Neakson was still employed as Interim Assembly Clerk under Enga Provincial Administrative Staff Act of 1988. As of 1st of July 1996, all those employed under this Act, including Mr Neakson were temporarily or casually employed whilst awaiting appointment under the Public Service (Management) Act 1995. Therefore Mr Neakson continued and remained as Interim Assembly Clerk until appointed as Assembly Clerk on 10th September 1996. This was the view held by the Enga Provincial Administrator, Mr Talyaga and stated in a letter he wrote in response to the termination notice by Tindiwi of Ainu Neakson as Assembly Clerk, dated 6/6/96.

Section 82 (2) (Transfer of Officers) of the Public Service (Management) Act, 1995 reads:

“(2) An officer who, immediately before the coming into operation of this Act, was the substantive occupant of an office under the repealed Acts, shall be deemed, on that coming into operation, to have been appointed to the equivalent office under this Act.”

“Appointments to Offices in Provincial Governments and Local-Level Governments Secretariats, etc.

69(2) Procedures for selection, appointment, promotion, transfer, discipline and termination of staff of a Provincial Government and Local Level Government Secretariat are those applicable to officers of the Public Service and shall be administered by the Provincial Administrator.”

(1) That all officers previously employed under the Provincial Government under the Administrative Staff Services Act 1988 are transferred to and appointed under the new Public Services (Management) Act 1995. However, in the interim period those officers of Provincial Secretariat are to be temporarily or casually employed against the positions they hold under old Acts until appointed. This is what actually happened when Ainu Neakson was Interim Clerk of Assembly until his appointment on 10th September 1996 despite being purportedly terminated by Tindiwi and gazetted in Enga Gazette.

(2) Only the Administrator has power to select, appoint, promote, transfer, discipline and terminate Staff of Provincial Government and no one else. Not even the Provincial Governor.

Therefore, the total effect of all these is that Ainu Neakson, the Interim Clerk of Assembly of Enga Provincial Government, was never terminated as alleged by defence. And that any action taken by him during the meeting of 28/6/96 was within his authority to do so. I am further supported in this view by section 129 (1) of the Organic Law on Provincial Government under the laws repealed by section 120 shall continue to provide the same services to the Interim Provincial Government. The whole intention of Parliament is not to interfere in any way, whether administrative, political or otherwise, the smooth flow from the old Provincial Government system to the new Provincial and Local Level Government system.

Having settled the two major peripheral issues, I now come to the main issues. Although I have classed them as three, there is in fact one main issue and the other two are only follow up issues.

The main issue is whether the meeting of 28th June 1996 was properly convened under the Organic Law on Provincial Government and Local Level Governments 1995. The two Subsections of section 125 relevant here are (5A) and (8) of the Organic law. I set them out as follows:

“(5A) An Interim Provincial 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 Interim Deputy Governor and Interim 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).

(8) The Interim Provincial Government shall determine its own procedures, quorums and number of meetings.”

To determine this issue I have to first look at the procedures in calling for meetings of the Interim Provincial Assembly.

Section 125 (8) quoted above is quite clear and says that the Interim Provincial Government shall determine its own procedures, quorums and number of meetings.

The evidence is that on the 8th of August 1995, the Enga Interim Provincial Government met for the first time (Exhibit “F”) and adopted the Standing Orders of the previous Provincial Government. The relevant Standing Orders is number 17 which I have mentioned above. But that should be read in line with section 132 of the OLPG & LLG which reads:

(1) Subject to this section, notwithstanding the repeal of the laws referred to in Section 120, the laws of a previous Provincial Government (other than the Constitution of a previous Provincial Government) in force immediately before the coming into operation of this Organic Law shall continue in force up to and including 60 days after the commencement of this Organic Law.

(2) Any reference in laws continued in operation under Subsection (1) to offices or bodies established under the laws repealed by Section 120 shall be read as references to corresponding offices or bodies established under this Organic Law.

(3) An Interim Provincial Government may adopt or re-enact the laws of a previous Provincial Government to the extent that they comply with the provisions of this Organic Law.” (emphasis added)

The defence argued that according to Standing Order 17, only the Governor is entitled to set times, places, and dates of meetings.

The Plaintiff says that the Governor has no power to unilaterally over-rule or make decisions affecting the Interim Assembly. That is he alone cannot decide whether the Assembly should or should not meet nor can he defer the implementation of the Interim Assembly decision to meet. He must exercise the powers in the Standing Orders in accordance with the OLPG & LLG.

I agree with the Plaintiff’s contention but not his argument that the Standing Orders as adopted be followed in accordance with section 125 (8) of OLPG & LLG. I say this for the very reasons I said above and adopt those views in this argument. This is, the intention of the Parliament is to apply, in the Interim period, the provisions of OLPG & LLG under Division 3.C of Part VI (Facilitative Provisions), section 123 to 132 only. Secondly, the decision to hold meetings or decide the procedures and conduct the daily operations of the running of the business of the Interim Assembly is an internal matter. This is an area the courts cannot enter. The only authority that can decide is the Assembly itself. I adopt the principle quoted above in Rova Maha v Paul Kipo [1994] PNGLR 445 at 448 that court has jurisdiction to consider compliance with constitutional requirements as to convening of the meetings of the Provincial Assembly, but not to consider compliance with Standing Orders governing the conduct of such meetings. The Provincial Assembly has jurisdiction to govern its own proceedings. (See also Sections 133 & 134 of National Constitutional). In this case, we have a meeting held on 2nd of May 1996 of the Assembly which set 30th May 1996 as next date of Assembly meeting. On 23/5/96 Mr Tindiwi, the Acting Governor deferred meeting to a later day in July (Exhibit “D”). The Assembly members despite the deferral have convened a meeting on 30th May 1996 whereby Plaintiff was appointed acting Chairman and chaired the meeting according to section 125(5) & (5A). The Assembly then set 28th of June 1996 as next date of meeting to discuss the position of Tindiwi as Deputy Governor in the Provincial Government. There were other matters to be discussed but not stated in circular issued by the Chairman of meeting on 30th May 1996, Peter Ipatas, (Exhibit “G”). This circular specifically says the subject of the meeting is “Special Enga Interim Provincial Assembly Meeting on 27th June 1996” and dated 25th June 1996. There was a letter by Ipatas on 3rd June 1996 to Acting Governor, Danley Tindiwi of the resolution No. 23/96 demanding Acting Governor to resign within 14 days from 30th May 1996. Mr Tindiwi was therefore aware of the meeting of 28th June 1996 as he responded in letters to Provincial Police Commander of Enga on 26th June 1996 asking for assistance to stop unauthorised Assembly meetings (Exhibit “N”) and another letter to the Provincial Administrator, Mr Talyaga on 28th June 1996 to stop P Ipatas from holding such a meeting (Exhibit “M”) and to brief Acting Governor of what is going on between Administrator and Ipatas. I reproduce these letters below respectively:

I have heard that Mr Peter Ipatas has circulated a notice to Enga Assembly Members that a meeting of the Enga Interim Provincial Assembly will be held on the 28th June 1996. I have to advise that Mr Peter Ipatas is not the Acting Governor nor the Acting Deputy Governor according to the Organic Law on Provincial Governments and Local Level Governments. This meeting would be illegal and without my approval.

The Enga Interim Provincial Assembly meeting will be held on the 25th and 26th July 1996. These dates have been set by myself as Acting Governor under the Organic Law on Provincial Governments and Local Level Governments, section 15 (1) and the Assembly Standing Orders, Section 17 (1) (2). Under these laws no one else is authorised to organise dates, times, and venues for Enga Interim Assembly meetings apart from myself.

I have set dates for the Budget priorities Committees meetings (3rd to 12th July) and PEC meetings (17 to 19th July) to finalise and approve the Second Quarter EPG Budget Review. Hence, the Assembly meeting has to take place on the dates aforementioned. I have circulated my notice of meetings to all the Members of the respective committees and Assembly.

You are therefore instructed to ensure that this unauthorised meeting does not take place and that unauthorised persons do not convene any such meetings. This is so that peace and stability which we have enjoyed so far do not get unduly disturbed by any selfish power-hungry individuals.

I am advised lately that Mr Peter Ipatas has brought a lot of the Council Presidents to Mount Hagen to hold an Assembly meeting without my knowledge. I understand you being the Administrator have provided vehicles to transport the members down but you have failed to advise me of such a meeting.

1. Immediately write to Mr Peter Ipatas to call off such a meeting forthwith; and

2. Brief me in person at 4.00 pm today as to what is going on between you and Mr Ipatas in my Government.

Your failure to do these two (2) things will mean disobedience and insubordination to lawful instruction and I will have to take appropriate actions where necessary.

So Mr Tindiwi was well aware that there was going to be a meeting on the 28th June 1996. However on 28th June 1996, Mr Neakson checked the Assembly Hall and found that it was locked. This is quite understandable in view of the tone of the above two letters and also the two factions existing at the time - one supporting Tindiwi and another supporting Ipatas, according to the evidence in this case.

This explains why the meeting was held at Malya Hostel. These are the brief facts leading to the meeting of 28th June 1996.

As to what happened in the meeting, how it was conducted and minutes taken and later produced is not for this court to venture into. These are matters of internal operation of the Assembly (See M Rova v P Kipo (Supra) and cited at pages 10 and 11 of this judgment.

Section 125 (5A) of OLPG & LLG was added by amendment No 1 Law. It was an addition to subsection 5 dealing with the Premier of the previous Provincial Government and says if the premier of previous Provincial Government does not decide to be the Deputy Governor and Deputy Chairman of Interim Assembly within 21 days from the date of the establishment of the Interim Provincial Assembly the Interim Provincial Government shall elect the Deputy Governor from amongst the members referred to in subsection 1(b) who shall also be the Deputy Chairman of the Assembly. This did not provide for a situation as in this case where the Assembly wants to remove the Deputy Governor which section 125 (5A) is intended to solve. Section 125 (5A) requires that the Assembly may, by a two-thirds absolute majority vote, resolve that the Premier of previous Provincial Government shall not continue to hold offices of Interim Deputy Governor and Interim Deputy Chairman and...the Interim Provincial Assembly shall elect the Interim Deputy Governor who shall be Interim Deputy Chairman, from amongst the members referred to in subsection (1) (b). This situation should be distinguished from the situation with the case of HAGAI Joshua and Or v Aron Meya and Ors [1988-89] PNGLR 188 where the Provincial Constitution provided for votes of no-confidence and procedures to be followed. In that case section 28 (1) of Morobe Constitution did not provide for the meaning of “two-thirds” and so the court applied schedule 1.2 (1) (a) of the National Constitution and said two-thirds must mean two-thirds of the seats in the Provincial Assembly. In this case, as I have said above, the intents and purpose of the National Parliament is not to apply the rigid rules and procedures until after the Interim Provincial Government has smoothly moved onto the full Provincial Government status under the provisions of the OLPG & LLG.

Applying section 125 (5A) to the facts of this case, at the time of the meeting of 28th June 1996, there were only 21 Interim Provincial Government members. Two-thirds would be 14 members. The meeting of 28th June 1996 had 16 of those members who were present and voted unanimously to vote Deputy Governor out of office and the same numbers voted by resolution to vote into office of Peter IPATAS as Deputy Governor. That vote had more than two-thirds of either of Assembly members and or majority of Assembly members present.

For the above reasons I find that the meeting of 30th May 1996 was proper and also the meeting of 28th June 1996. I also find that the voting out of office of Deputy Governor, D Tindiwi and subsequent voting of Peter IPATAS as Deputy Governor were proper.

1. That the Plaintiff, Peter Ipatas, was duly elected by the Enga Interim Provincial Assembly on 28th June 1996 as the Interim Deputy Governor of Enga Province and as the Interim Deputy Chairman of the Interim Provincial Assembly of Enga Province and as such continues to hold such offices.

2. That the cost be in the cause and if not agreed to be taxed by the Registrar.

I do not grant the other two orders sought by the Plaintiff as the above order sufficiently caters for them too.

National Court of Papua New Guinea

Ipatas v Enga Interim Provincial Government [1996] PGNC 53; N1491 (29 November 1996)