Marika v Silari [2004] PGNC 30; N2729 (18 October 2004)

N2729

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE IN MADANG]

OS 293 OF 2004

Between:

PAUL MARIKA
(Plaintiff)

And:

CLEMENT SILARI
(First Defendant)

MADANG : SAWONG, J.
2004 : 12th, 15th, 18th OCTOBER

PARLIAMENT – Yawar Local-level Government – Motion of no confidence – validity – sufficiency of vote on – "two-thirds absolute majority" – Local-level Government Administration Act, ss.12 – Constitution, SCH. 1.2 – Definition "absolute majority vote".

The Local-Level Government Administration Act, s.12 (3)(c) provides:

- The head of a Local-level Government elected under Subsection (1) (b) vacates office where –

(a) He ceases to be an elected member;
(b) He is dismissed from office under s.9 or 10; or
(c) He is dismissed from office if the Local-level Government, by a two-thirds absolute majority (including the appointed members), passes a Motion of no confidence in him in accordance with this section.

HELD:

(1) Because s.12 ss 3(c) of the Local-level Government Administration Act specifically require a vote of no confidence to be passed by a two-thirds absolute majority vote, Sch. 1.2 (1)(a) of the National Constitution applied so as to require a vote of no confidence in the Local-level Government to be passed by a two-thirds majority of the number of seats in the Council.

(2) Because the number of seats in the Yawar Local-level Government was 41, a two-thirds absolute majority was 27 votes and a vote of no confidence by 25 members was therefore invalid.

CASES CITED:

The following cases are cited in the judgment:

Hagai Joshua & Gimson Saunu v Eron Meyer, J. Nalau & Mankembu [1988-89] PNGLR 188;
Bobby Kawage v Frank Mondu & Dept. of Eastern Highlands Provincial Govt. & Daulo Local-level Government (Unreported Judgment of the National Court No. N1912).

Counsel:

MR. W. AKUANI, for the Plaintiff
MR. R. WAIPEK, for the First Defendant

18th October, 2004

Introduction

SAWONG, J: The plaintiff seeks declarations and orders by way of Originating Summons in the following terms:

1. The declaration that the election of Mr Clement Silari as president of the Yawar Local Level Government is null and void.
2. An order that Mr Clement Silari be restrained from asserting that he is the president of Yawar Local Level Government and using such status to move into the office after president of Yawar Local Level Government.
   

Facts

The facts are mostly undisputed. The Yawar Local Level Government has a total of 41 seats but one councilor had died leaving a balance of 40 members. The plaintiff, Paul Marika was the president of the Yawar Local Level Government (the Council). On 24th of April 2004, 26 members of the said council petitioned the Chief Executive of the said council to convene a meeting of the council for a no confidence motion in the presidency of the plaintiff.

On 2nd June 2004, the Council had a special meeting at the chambers, Bogia Station, for the purposes of debating the vote of no confidence against the plaintiff. At that meeting 36 councillors were present. The minutes of the meeting showed that the standing orders of the council were suspended as it related to the method of voting in the vote of no confidence. Thereafter there was debate and a vote was taken on the vote of no confidence. The vote was taken by show of hands. Of the 36 members present, 25 members voted in favour of the vote of no confidence, 7 members voted in favour of the plaintiff and four (4) councillors abstained. Thereafter the Council Executive Officer declared the first defendant as duly elected President of the said Council. Subsequently, on the 12th of August 2004, the first defendant was duly sworn in as President of the said Council after he took his declaration of office.

Issues

There are two main issues raised by these events. The first is the question of the validity or otherwise of the no confidence motion, that is, whether the vote of no confidence was in accordance with the s.12 (3) (c) of the Local Level Government Administration Act of 1997 (the Act).

The second issue is whether the "headcount" method used by the members of the Yawar Local-level Government in passing the vote of no confidence in the plaintiff on the 2nd of June, 2004 was in breach of Standing Order number 42 of the Yawar Local-level Government Standing Orders and s.12 (5) of the Act.

Decision

The validity of the no confidence motion and of the voting upon the motion.

The relevant law to be considered is the Organic Law on Provincial and Local-Level Governments (the Organic Law) and the Local-level Government Administration Act of 1997 (the Act). The Organic Law creates all the Provincial Governments and Local-level Governments in the country. The Act, regulates the exercise of powers of all the Local-level Governments in the country, including the power to elect and remove a head of a Local-level Government. The procedure for the election and removal of a head of a Local-level Government is set out under s.12 of the Act. Section 12 of the Act is as follows:

"12. Election of head of a Local-level Government.

(1) The election of the head of a Local-level Government –

• (a) in respect of which a determination has been made under Section234(2) of the Organic Law on National and Local-level Government Elections – shall be in accordance with that Organic Law; and
• (b) in respect of which no such determination has been made – shall, subject to this section, be in accordance with the Standing Orders of the Local-level Government from amongst the elected members of the Local-level Government.
  

(2) A member appointed under Section 29(1)(c) or (d) of the Organic Law is not eligible to be elected as the head of the Local-level Government.

(3) The head of a Local-level Government elected under Subsection (1)(b) vacates office where –

• (a) he ceases to be an elected member; or
• (b) he is dismissed from office under Section 9 or 10; or
• (c) he is dismissed from office if the Local-Level Government, by a two thirds absolute majority (including the appointed members), passes a motion of no confidence in him in accordance with this section. (My emphasis).
  

(4) A motion of no confidence referred to in Subsection (3)(c) -

• (a) is a motion -
  
  • (i) that is expressed to be a motion of no confidence in the head of the Local-level Government; and
  • (ii) of which not less than 14 days’ notice, signed by a number of members of the Local-level Government, being not less than one quarter of the total number of members of the Local-level Government, has been given in accordance with the Standing Orders of the Local-level Government; and
  • (iii) nominates another member of the Local-level Government, who is eligible to be elected head of the Local-level Government, to be the next head of the Local-level Government; and
    
• (b) may not be moved –
  
  • (i) during the period of 18 months following the election of the head of the Local-level Government; or
  • (ii) during the period of six months before the fifth anniversary of the date fixed for the return of the writs of the previous general election of members of Local-level Governments.
    

(5) The procedures for a motion of no confidence referred to in Subsection (3)(c) shall be as set out in the Standing Orders of the Local-level Government."

I do not propose to consider other provisions of s.12 for it is not relevant for the present purposes. For the present purposes, the only relevant provision to be considered is s.12 (3)(c).

By s.12 (3) (c) of the Act, the head of a Local Level Government elected vacates office where "he is dismissed from office if the Local Level Government, by a two-thirds absolute majority (including the appointed members), passes a vote of no confidence in him in accordance with this section". "Section 12 (5) of the Act provides that the procedures for a motion of no confidence referred to in Subsection (3) (c) shall be set out in the standing orders of the Local Level Government."

There is no issue that proper notice had been given for the vote of no confidence. The Executive Officer of the council, who presided over the meeting, found that the council had successfully voted the plaintiff out. In other words, he accepted that the 25 members who voted for the first defendant amounted to two-thirds absolute majority of the 36 members who were present in the chamber and who took part in the vote.

I propose to deal with the first issue first. In my view the first issue involves the consideration of the expression "two-thirds absolute majority".

What does the expression "two-thirds absolute majority" mean. Does this expression mean two-thirds absolute majority of the members then present in the chamber and voting at a particular meeting or, does it mean two-thirds absolute majority of the total number of seats in the council area. On this issue, Mr Akuani, counsel for the plaintiff, submitted that the expression "two-thirds absolute majority" means two-thirds of the total number of seats in the council area and not two-thirds of the members then present in the chamber and voting He relied on the authority of Hagai Joshua v Aaron Meya [1988-89] PNGLR 188 and Bobby Kawage v Frank Mondu & Ors (Unreported Judgment No. N1912).

Mr. Akuani submitted that in the present case, as the said council had 41 seats, the vote of No Confidence was invalid and void because only 25 members voted, which was not two-thirds absolute majority. The two-thirds absolute majority would have been 27 votes, but as only 25 councillors voted in favour, this was in breach of s.12 (3)(c) of the Act.
Mr Akuani has made further submissions in relation to the second issue.

Mr Waipek, counsel for the first defendant submitted that the two-thirds absolute majority requirement under s.12 (3)(c) of the Act means two-thirds of the councillors present in the chamber of the council when the meeting on the 2nd of June, 2004 was held and not by reference to the number of seats of the Council. It was submitted that as 36 councillors attended the meeting on 2nd June, 2004 and 25 members having voted in favour of the motion, this was more than two-thirds of the number of members present at the meeting. Mr Waipek therefore submits that as the motion for dismissal of the plaintiff at the meeting held on 2nd June, 2004 was supported by two-thirds of the members of Yawar Local-level Government, he satisfied the requirements on s.12 (3)(c) of the Act had been complied with. Accordingly the dismissal of the plaintiff as President of the said Council and election of the first defendant as new President for the said Council was valid for all intension and purposes. He too has made submissions on the second issue.

As I have alluded to earlier, for the reasons that will become obvious, later on in my judgment, I do not consider it necessary to consider the second issue.

In Joshua (supra), the National Court considered, inter alia, similar expression in the Morobe Provincial Constitution. Section 41 (3) of the said Constitution provided that a vote of no confidence is a vote of the Tutumang that is expressed to be a vote of no confidence passed by a "two-thirds absolute majority vote". There the Morobe Tutumang had a total of 35 seats. A vote of no confidence was given and the Speaker notified the members and set a date for a meeting of the Tutumang to meet and debate and vote on the vote of no confidence. On the day appointed for the meeting, the Premier and 12 other members did not turn up and attended the meeting on the appointed date. Only 22 members turned up. The meeting was then adjourned to the next day. The next day again the Premier and his 12 supporters were again absent. Again, only the 22 members turned up. The meeting did not proceed and was further adjourned to 3:00 pm in the afternoon of that day. Again, the Premier and his supporters did not turn up and only the 22 members were present in the chamber. The Speaker then purportedly suspended the Premier and his supporters. The 22 members then in the chamber, proceeded to debate and voted upon the vote of non confidence and passed it. The Premier and his deputy were purportedly voted out of office and the Tutumang purportedly elected a new Premier and a new Deputy Premier. Joshua then filed a suit seeking declarations that the purported vote of no confidence was void and of no effect. After trial the National Court judge found, inter alia that the vote of no confidence was invalid and void. After discussing other matters, Andrew AJ, discussed the meaning of expression "two-thirds absolute majority". He said at p. 193:

".. There were and are currently 35 seats so that there was a quorum when the vote was taken. But the Morobe Constitution, in the words of s.28 (1), does provide something different than the usual simple majority when it comes to no confidence motions for the words of s.41 (3) require that it be passed by a two-third absolute majority".

An absolute majority vote is defined in the National Constitution by Schedule 1.2:

"Schedule 1.2 Meaning of certain expressions.

1. In this Constitution or an Organic Law "absolute majority vote", in relation to Parliament means –
   
   • (a) If qualified by a certain fraction or percentage, affirmative votes equal to less than that fraction or percentage of the total number of seats in the Parliament .."
     

There he found that 22 votes of no confidence did not amount to two-thirds of the 35 total seats in the Tutumang. He therefore concluded at p. 194:

"It was irrelevant that some members were suspended. There must always be two-thirds majority of the number of seats".

The two-thirds majority of the 35 seats meant that there should have been 23 votes. As there were only 22 votes, the vote of no confidence was declared void.

In, Kawage v Mondu (supra) Kirriwom, J considered the interpretation of s.12 of the Act. In that case, there was a vote of no confidence in the plaintiff, Frank Mondu who was the president of the Daulo Local Level Government. Daulo Local Level Government had 25 seats. All 25 members were present and took part in the vote of no confidence. After all the preliminary matters were completed, the motion was read and voted and a vote by secret ballot was conducted. The result was that the first defendant received 16 votes while the plaintiff received 9 votes. Two-thirds absolute majority would be 16.666 or (17). He distinguished the case of Hagai Joshua and others (supra) and the case before him and held that the two-thirds absolute majority had been satisfied even though the number was 16.

In the present case there are 41 seats in the Yawar Local Level Government. Thus, "two-thirds absolute majority" would mean two-thirds of 41 seats, which would be 27. In the present case it was erroneous to say that it was legitimate to calculate the two-thirds absolute majority from the 36 members who were present in the chamber and who took part in that vote. That is not the proper way to determine the two-thirds absolute majority. The proper way to determine that two-thirds majority vote is by reference to the number of seats in the council area. In the present case as I have alluded to, the number of seats is 41. Thus, two-thirds absolute majority of 41 seats is 27 votes.

Clearly on the evidence only 25 votes voted in favour of the vote of no confidence. This was not a two-thirds absolute majority vote.

Consequently, the vote of no confidence was therefore illegal, invalid and void.

As I have found that the vote of no confidence was illegal, invalid and void, as it was not passed by two-thirds absolute majority, I consider it unnecessary to consider the second issue.

For the reasons outlined, I find that the vote of no confidence passed in the plaintiff, was not passed by a two-thirds absolute majority as required by s.12 (3) (c) of the Act. Accordingly, I propose to order that the election of Clement Silari as president of Yawar Local Level Government on 2nd June 2004, is illegal, null and void. I also propose to make declaration that the purported vote of no confidence in the plaintiff was null and void. I further propose to make a declaration that the plaintiff remains President of Yawar Local Level Government.

I make the following orders.

1. I declare that the vote of no confidence in the plaintiff, Paul Marika on 2nd of June 2004, is null and void.
2. I declare that election of Mr Clement Silari as president of Yawar Local Level Government on 2nd June 2004, is null and void.
3. I declare that the plaintiff, Paul Marika remains the President of the Yawar Local Level Government.
4. The Interim Orders made by this Court on the 19th of August 2004, are absolved.
5. I order that the first defendant pay the plaintiff costs, to be taxed, if not agreed.
   

_______________________________________________________________________
LAWYERS FOR THE PLAINTIFF : AKUANI LAWYERS
LAWYERS FOR THE 1ST DEFENDANT : KUNAI LAWYERS