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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 283 OF 1994
PAUL KIPO - Plaintiff
And:
ROVA MAHA - Defendant
Waigani
Jalina J
10 August 1994
15 August 1994
18 August 1994
CONSTITUTIONAL LAW - Provincial Government Constitution - Election of Premier - Election conducted on three different occasions - whether first second or third election is valid - Central Provincial Government Constitution s. 17 and 18.
CONSTITUTIONAL LAW - Provincial Government Constitution - Standing Orders - Election of Premier - Procedures in Provincial Assembly Standing Orders not followed - whether non-justiciable. Ce Provincial Government&#ent Contion s. 14 (2).
Cases Cited:
Gulf Provincial Government (In-Suspension) v the Minister for Village Services and the State (OS 212 of 1994)
James Eki Mopihe Sp of the National onal Parliament [1977] PNGLR CR 420
Counsel:
S Soi for Plaintiff
M Koiri for Defendant
18 August 1994
JALINA J: The plaintiff seeks declaratory orders through his Originating Summons as amended by consent of counsel for the defendant on 10 August 1994 as follows:
“1. ;declaratiot that the mthe meeting convened by the Cler Clerk of the Provincial Assembly on 4th August 1994, unconstitutional forure tply oernatively breached section 17 and 18 (1) (b) of the Central Provincialncial Cons Constituttitution and section 7 and 8 of the Standing Orders of the Provincial Assembly.
1A. ټ Aarationation that that the meeting convened by the Clerk of the Provincial Assembly on 8th August 1994, unconstitutional, for failure to comply with or alternatively breached section 17 a (1) f the Central Prol Provincivincial Constitution and section 7 and 8 of the Standing Orders of the Provincial Assembly.
2. A declaration that the denendant's election as Premier of Central Province on 4th August 1994 null and void for failure to comply with or alternatively breached section 17 and 18 (1) (b) of the Central Province Constitution and section 7 and 8 of the Standing Orders of the Central Provincial Assembly.
2A. A declaration that the defendant's election as Premier of Central Province on 8th August 1994, null and void for failure to comply with or alternatively breached section 1718 (1 of tntralincial Constitution and sectisection 7 on 7 and 8and 8 of t of the Standing Orders of the Provincial Assembly.
3. &ـ A60; An orde order restraining the defendant from performing any function and duties of Premier of Central Provincil thermination of this matter.
4. A declareclarationation that the Plaintiff was duly elected as Premier of Central Province by the Central Provincial Assembly on the August 1994.”
Apart from the dispute as to whatspirethe cr of the Provincial Asal Assemblsembly at y at the time the plaintiff was elected premier on 4th August 1994, the history relating to that election and the two subsequent election of the defendant as premier are best described in Mr Soi's submission which I, with respect, adopt with modification to paragraph 12 and deletion of paragraph 13:
“1. &ـ On 14th 14th July July 1994 His Honour Mr Justice Sheehan declared null and void the election of the Plaintiff as Premier of Central Province, stating the eln of the Plaintiff as Premier on the 3rd August 1ust 1993 d993 did not comply with Section 35 (2) of the Central Provincial Government Constitution.
As a result of this declaration the seat of the Premier of Central Province became vacant.
2. On 1st August 1994, sevenmeen members of the Central Provincial Government wrote to the Speaker of the Central Provincial Assembly the Honourable Peter Isoaimo requesting him to convene a meeting of the Provincial Assembly solely for the Assembly to elect a Premier of the Province.
3. &##160; On 2nd August 1994,1994, the Defendant as acting Premier wrote to the Speaker of the Provincial Assembly requesting him to convene a meeting solely for the Assembly to elect a Premier ofProvi/p> <#160; &160; #160; n ; O Augu94,1994, the Sthe Speaker of the Provincial Assembly issued a notice to all members of the Provincial Assembly advising them that he will convene a meeting of the Provincial Assembly at 10.00 am on the 4th August 1994.
5. A0 10. o amhe th Autust 1ust 1994, the Central Provincial Assembly commenced its meeting. At 10.10 am on the 4th Au1ust 1994 the plaintiff was elected unopposed by the Provincial Assembly. The Speaker of the Prial Aial Assembly declared laintiff elected unopposed as Premier of Central Province.
6.   At 10.15 amhe th t t994 t994 the Speaker adjourned the Provincial Assembly meetineeting until further notice.
7. 0.30athet4gus Cthethvf cialncial Aial Assembssembly waly was sums summonsemonsed by d by the defendant to the Assembly hall. There he met and had confhrwith n Genni, Tnjin ne Mr, all stal staff meff membersmbers of t of the Nahe Nationational Parliament. Whilst the conference oinggoing on, the seventeeners of the defendants group were already seated in their reir respective seats on the floor of the Assembly. During the conferehe Clead read and showed the three men the minutes of the mthe meeting.
8. & After that th of the Proe Provincial Assembly was advised by the three men to reconvene the meeting, saying ting that the
previous meeting was incomplep> 10. ;e Clerk of k of the Prhe Provincial Assembly chaired this meeting conducted proceedings of the Assembly until it's conclusi
10.5of the 4th August 1994. During meeting the defendafendant was elected unoppunopposed osed as Premier of Central Province. Afte
election the Provincivincial Assembly was further adjourned until further notice. 11. &##160; On 5th Aug994ug994, the piaintiff commenced legal proceedings in the National Court against the defendant dant claiming
that his election as Premieruncontional. 12. & Despite phis phis pendingnding legal proceedings, the, the Defendant caused another meeting of the Central Provincial Assembly
to be convened at 2.00pm on the 8th August 1994. During this meeting throheh the co-ordination of the Acting Clerk Mr Gavo Gabone,
Mr Ovo Hakai was appointed by the Members present to assume the position of Acting Speaker in the absef the Speaker. Mr Hakai then
pred to cond conduct thet the proceedings of the Assembly during which the defendant was elected unopposed as Premier of Central
Province, the second time.” The defendant has conceded that his election during the Provincial Assembly meeting presided by the Clerk of the Provincial Assembly
on 4th August 1994 was ultra vires the powers of the Clerk and as such I grant the orders sought in paragraphs 1 and 2 of the amended
Statement of Claim. That leaves paragraphs 1 a 2A and 4. Paragraphs 1A and late to e to the election of the defendant as premier
on 8th August, 1994 and paragraph 4 rs to the election of the plaintiff as premier on 4th August 1994. I consider ther the two elwo
elections in the order of their appearance in the amended Statement of Claim. ELECTION OF 8 AUGUST 1994 The plaintiff and his supporters having absent from the chambers ofrs of the Provincial Assembly, what actually happened prior to
the election of the defendant as premier on 8th August 1994 are best described in paragraph 7 of the affidavit of Tom Manjin sworn
and filed in this Court on behalf of the defendant on 12 August 1994. “7. ; 8 August 1ust 1994 we94 we were again directed to attend to the Central Provincial Assembly Chambers by the Clerk
of the National Parliament to provide further assistance at a meeting inAssemhambenvened ened at that the reqe request of about eighteen
(18) Assembly Members. I was given a listhose Meme Members who were present in the Chambers by the Acting Clerk Mr Gavo Gabone.
The lisbered eighteen (18) (18) Members. The list is annexedto and marked with the letter ‘B’. The Ache Acting Clerk
Mr Gavo Gabone was in attendance and co-ordinating the Ass.e Members presentesent then appointed Mr Ovo Hakai to assume the position
of Acting Speakereaker in the absence of the Speaker. Actinaker then announcnouncnounced that the elections of both Mr Kipo and Mr
Maha by the Assembly on 4 August 1994 were both unconstinal and as such the Assembly now had before it the business of electing a
Premier.”
The office of the Speaker and Deputy Speaker, the vacation of these offices, the functions of the Speaker and Deputy Speaker and the
calling of the meetings of the Provincial Assembly are provided for in Sections 16, 16A, 17 and 18 of the Central Provincial Government
Constitution as follows: “16. &##160; OFFICES OF SPEAKER AKER AND DEPUTY SPEAKER 1. ـ S60; Subject to Section 55 (First Speaker and Deputy Speaker) there shall be offices of Speaker and Deputy Speaker of
the Provincial Assembp> 3. The Speaker and Deppty Sr aker hold office, and their offices become vacant in accordance with an Act of the Assembly and
the Standing Orders. 4. &ـ҈ ct toion 5rst SpeakSpeaker aner and Depd Deputy Suty Speakepeaker), nr), not Executive Member may be the Speaker
or Deputy Speaker, and if a Sp or Deputy Speaker becomes an Executive Member he vacates his office as Speaker or Deputy Suty Speaker,
as the case may be. 16A. VACATION OFCE FI SPEFKER AKER AND DEPUTY SPEAKER The Office of the Speaker or Deputy Speaker, as the case may be, becomes vacant: 1. &##160; W60; When themAssefily sist sits and elects a New Speaker of Deputy Speaker after a General Provincial Election; or 2. ; I60foll wing the General eral Provincial Electi ceas failqualifyalify to b to be a me a member of the Assembly; or 3. ҈ If he ceases to be o be a member o Asseunderconstitution and and or anor an Act Act of the Assembly; or 4. ټ If he resigns by wrby written notice to remie 6.&ـ On his de/p> 17. &160; FUNCTIONS OFKEPEAKER AND DAND DAND DEPUTYEPUTY SPEAKER 1. ;&#peis responsible, subjecubject to and in accordance with this Constitution, ann, an Act Act of thof the Assembly and the
Standing Orders of the Assembly, for uing tgnityhe Asy, maintaining order in it, rit, regulaegulating ting its pits proceedings and
administrating its affairs, and for controlling the precincts of the Assembly as defined by or under an Act of the Assembly. 2. ټ&##160; I60; In the the event of a vacancy in the office of the Speaker, or his absence from the Province, or from the
Assembly and otherwise as determined undeAct of the assembly or the Standing Orders, the Dthe Deputyeputy Speaker has all the rights,
privileges, powers, functions, duties and responsibilities of the Speaker. 3. &##160;; A60Act Act of thef the Assembly or the Standing Orders may provide for other powers, functions, duties and responsibilities
of the Speaker and the Deputy Speaker. Subdivision C ers aocedup> 1 18.. < & LING LING OF MEETINGSTINGS OF THE ASSEMBLY 1. ـ҈ T60; The Asse Assembly shall be called to meet not more than 21 days after: (a) ټ the daye day fixed for the return of tits fgeneral election; or (b) #1660t&#the; the day oday on which the Speaker receives a request in writing to a me from (i)p>(i) &##160; 160; 160; not lnot tess 50an 50% of the members of the Assembly; or (ii) & e Premier.mier. and shall meet not less than once in each period of three months.
2. & Subject toectno, an Act ofct of the Assembly or the Standing Orders mers may maay make provision for the calling of meetings of the Assembly and in respe the bly.&;
t has submitted by Mr SoMr Soi fori for the the PlainPlaintiff tiff that the election of the defendant as premier on 8th August 1994 was in breach of Section 18 of the Provincial Constitution and was therefore null and void as it was clear from the affidavit evidence before this Court (particularly the affidavit of Tom Manjin), that it was the Acting Clerk who convened the meeting of the Provincial Assembly on the direction of three (3) officers from the National Parliament all of whom (including the Acting Clerk) were public servants who had no authority under the Provincial Constitution to convene meetings of the Provincial Assembly.He further submitted that the appointment of Ovo Hakai as Acting Speaker was in breach of Section 17 (2) of the Provincial Constitution and as such was null and void and the election of premier during the meeting presided by the Acting Speaker was also null and void as there was no vacancy in the office of the Speaker. The Speaker Peter Isaim noas not out of the province nor was he unable to perform his duties. All that the Speaker had oone on 4 August was that he adjourned further business ofProvincial Assembly until further notice.
Mr Soi alsi also submitted that the election of the defendant as premier on 8 August was in breach of Section 1ion 18 (1) (b) of the Provincial Constitution as there was no request in writing to the Speaker from at least 50% of the members of the Assembly and as such the election was null and void.
Mr Koiri for the defendant based his submission solely on the affidavit of Tom Manjin sworn and filed in this Court on 12 August and said that the meeting was attended by seventeen (17) members and in the absence of the Speaker, Mr Ovo Hakai, a Member of the Provincial Assembly was elected Acting Speaker for purposes of the business of electing a premier. Whilst Mr Koiri “conceded that there is no evidence before this Court which ascertains the legistimacy and compliance with Standing Orders in respect of the meeting on 8 August 199er than that seventeen (17) members were present at the meee meeting”, at no point in his written submission in respect of the defendant’s election does he assert that the defendant’s election as premier was valid.
When I consider the matter in light of the affidavit evidence before me, I have no doubts in my mind that all the steps taken in the election of the defendant as premier on 8 August, 1994 were in breach of the Provincial Constitution.
Firstly, I cannot find any provisions in the Central Provincial Government Constitution that authorise the involvement of the Clerk of the National Parliament and his officers in the conduct of meetings or otherwise of the Provincial Assembly.
Secondly, I cannot find any provision in the Provincial Constitution that empowers the Clerk or the Acting Clerk of the Provincial Assembly to attend and co-ordinate the meetings of the Provincial Assembly. Under Section 17 (1the Cone Constitution it is the Speaker who is responsible for upholding the dignity of the Assembly, maintaining order in it, regulating its proceedings and administering its affairs. Nr thecers from the Nate Nate National Parliament nor the Acting Clerk of the Provincial Assembly had the constitutional basis to inst and co-ordinate the meetings of the Provincial Assembly.
Thirdly, by virtue of Sect Section 17 (2) of the Provincial Constitution, the Deputy Speaker performs the functions duties and responsibilities of the Speaker in the event of a vacancy in the office of Speaker, in his absence from the Province or from the Assembly. There is no evidence therethere was a vacancy in the office of Speaker nor is there any evidence that the Speaker was absent from the Province or from the Assembly so as to provide justification for appointing an Acting Speaker. In f In fact fnnexure R “A” to the Speaker, Peter Isoaimo’s affidavit sworn on 9th August 1994 it appears that he was available in the Province as well as within the precints of the Proal Assembly because on 8th 8th August 1994 he issued a notice to all members of the Provincial Assembly informing them that he was the only one empowered under Section 17 and 18 of the Constitution to call meetings of the Provincial Assembly. The meetinghich the defendefendant was elected premier obviously appears to have been convened in defiance of that notice. There is ao evi that Ovo HOvo Hakai was the duly elected Deputy Speaker. To thent that Mr t Mr Ovo Ovo Hakai's appointment as Acting Spewas in breach of the Constitution any business over which he presided was a nullity.
Finally, the meeting was not convenethe written request of at l at least 50% of the members as required by Section 18 (1) (b) of the Constitution. A list of names een annexennexed to the affidavit of Tom Manjin but I, with respect, do not accept that it satisfies the requirement of Section ) (b). From the heading of the asst as well as the fact that it contains the names ofes of the plaintiff and others who appear to be his supporters all of whom have been crossed out, indicates that it is the list of Members of the Central Provincial Assembly. Neither does it contain any signatures nor was it attached to a formal letter to the Speaker requesting a meeting of the Provincial Assembly. It is suprias well as inte interesting to note that the defendant having complied with Section 18 (1) (b) when he made a written request to the Speaker on 2nd August to convene the meeting which resulted in the election of the plaintiff as premier overlooked the same requirements in respect of his own election.
The end result of the above is that the meeting convened by the Acting clerk, the meeting presided by the Acting Speaker and the election of the defendant as premier on 8th August 1994 are declared null and void. In fact the election e defe defendant as premier was void ab initio.
ELECTION OF 4TH AUGUST 1994
It has been submitted by Mr Soi for the plaintiff that his client was duly elected as premier o August 1994 as it was done done in accordance with Section 17 (1) and 18 (1) (b) of the Provincial Constitution. This, he subm, was clear fear from the affidavit of Peter Isoaimo sworn on 5th August and filed herein on 8th August which shows that the meeof 4th August was called by him (the duly elected Speaker) upon written request of the defe defendant and seventeen (17) others which was more than 50% of the members as required by Section 18(1)(b) of the Provincial Constitution. Annexure “B”heo the affidavit shows that due notice of the meeting scheduled for 4th August was given to all the members of the Provincial Aly. Apart from disputing pursuant to the provisions of the Standing Orders as to what what actually happened during the proceedings inside the chamber of the Provincial Assembly, the defendant does not allege through affidavits filed on his behalf nor does Mr Koiri for the defendant contend that the meeting convened by the Speaker was in breach of the Constitution. In other wordsKoiri does noes not make submissions similar to that made by Mr Soi in respect of the defendant's election as premier on 8th Aug994. All Mr Koiri has done is that he has relied on the Standing Orders and submitteditted that one of the paramount requirement of democracy was the need for a free and fair conduct in the Provincial Assembly where members should be given a right to be heard particularily in deliberations on such important matters as election of a premier.
Mr Soi has submitted in regard to the defendant's contention based on the alleged failure to comply with Standing Orders that the question of compliance with Standing Orders was non-justiciable. He relied on Section 14 (2) of the Provincial Constitution which provides:
“14. PRIVILEGES ETC. OF MEMBERS
1. ; .60
.2. ҈; T60; There sere shall be free freedom of speech, debate and proceeding in the Assembly, and the exercise of those freedoms shall not be questioned in ourt any edings whatever, (otherwise than than in p in proceedings in the Assembly or before fore a committee of the Assembly).”
He also referred me to a number of cases particularly Gulf Provincial Government (In-Suspension) v the Minister for Village Services and the State (OS 212 of 1994) where Sheehan J said:
“This Court has no jurisdiction to consider the merits or otherwise of the report or the adequacy of debate on it. All that is open to the Ciurt is to see that Constitutional procedures are met. It is non to the Court to t to question the internal proceedings of Parliament. It cannot investigate tnnemanner in which theiamen exercised its futs function.
...no claim can succeed before a Court which impugns tgns the manner in which the Parliament exed its function since this would, or might lead to the CourtCourts being obliged to rule and be in conflict on issues which are the prerogative of Parliament and on issue which Parliament has already made a determination.”
There is also the case of James Eki Mopio v The Speaker of the National Parliament [1977] PNGLR CR 420 which Mr Soi did not refer to. In that case tpreme Court,ourt, apart from considering Section 142(4) of the National Constitution which related to the election of the Prime ter after a general election also considered Section 115 (2) of the National Constitution wion which is in substantially similar terms to Section 14 (2) of the Provincial Constitution. One ofbasis of the action tion by the plaintiff Mr Mopio in that case was that the Speaker had failed to comply with Standing Orders of the National Parliament. In ron to Section 115 (2) (2) e Constitution the Supreme reme Court said at p. 422:
“Whilst full recognition is to be given to the autochthonous naturthe Constitution of Papua New Guinea, this passage is helpfhelpful in illustrating the meaning of s. 115 (2). It is as follows:
‘#8216;Reference was also made to Bradlaugh v Gossett, and it is sufficient to read a short portion of the headnote: he House of Commons is not subject to the control of Her Majesty’s Courts in its admi administration of that part of the statute law which has relation to its internal procedure only. Ws said or done within itsn its walls cannot be inquired into in a court of law...’ There clear affirmation ofon of the exclusive right of Parliament to regulate its own internal prings.’”
>
The Supreme Court went on to say at p. 423:
“These are matters which concern the conduct of the business of the Parliament and its procedure. According the issues beforbefore the Court involve the question whether that procedure has been complied with, and also the exercise of the freedom of proceedings of Parliament and the functions and duof the Speaker, this Court ourt has no jurisdiction to entertain the case now before it.”
The law on the question of whether or not Courts have jurisdiction to scrutinize compliance with internal procedures of Parliament (whether National or Provincial) in the course of the conduct of its parliamentary business appears now to be well settled in this jurisdiction. Courmply have no jurisdictsdiction to investigate the compliance or otherwise with the internal procedures of parliament including cance with Standing Orders. I amefore inclined to acce accept Mr Soi’s submissioissions and reject Mr Koiri’s submissions on this issue of jurisdiction/justiciability which I do. aw as it stands does not anot allow me to accept Mr Koiri’s submissions on this aspect unfair and immoral it may appear. iri has also not establishblished that the meeting convenedhe Speaker on 4th August 19st 1994 was in breach of the Provincial Constitution in the way Mr Soi has shown in respect of the electiothe defendant on the same dame date.
The end result of all these is that I declare the plaintiff duly elected as Premier of the Central Province on 4th August, 1994.
Costs are awarded in favour of the plaintiff to be taxed if not agreed.
Lawyers for the plaintiff: Smp; Associates Lawyers
Lawyers for the defendant: Aamp; Koiri Lawyers
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