Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Mango v Muthuvel [2019] PGNC 191; N7916 (27 June 2019)

N7916

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO 401 OF 2019

HON LAWRENCE MANGO MPA,
DEPUTY GOVERNOR, WEST NEW BRITAIN PROVINCE
First Plaintiff

HON JOSEPH LELANG MP,
MEMBER FOR KANDRIAN-GLOUCESTER OPEN
Second Plaintiff

V

HON SASINDRAN MUTHUVEL MP,
MEMBER FOR WEST NEW BRITAIN PROVINCIAL
First Defendant

MARTIN LINGE, DIRECTOR PARLIAMENTARY SERVICES
Second Defendant

HON FRANCIS GALIA MANEKE MP,
MEMBER FOR TALASEA OPEN
Third Defendant

HON JACKSON ENDO MPA, KIMBE TOWN MAYOR
Fourth Defendant

SYDNEY NULI, ACTING DIRECTOR,
PARLIAMENTARY SERVICES
Fifth Defendant

Waigani: Cannings J
2019: 26, 27 June

PROVINCIAL GOVERNMENTS – office of governor – appointment of governor as minister in National Government – vacation of office of governor – whether a governor appointed as a minister continues to hold office and has power to exercise all powers and functions until election of next governor.

PROVINCIAL GOVERNMENTS – office of governor – election of new governor – whether new governor to be elected in accordance with Standing Orders of provincial assembly – whether National Court can determine questions as to compliance with provisions of Standing Orders – whether Standing Orders complied with.

The first defendant was a provincial governor who was appointed a Minister in the National Government. The Organic Law on Provincial Governments and Local-level Governments provides that in such situations the governor has to vacate his office and the provincial assembly has to elect a new governor. Soon after the first defendant was appointed a minister, he announced that he would remain as governor until the election of a new governor. A meeting of the provincial assembly then elected the third defendant as the next governor. The plaintiffs took issue with what happened and commenced proceedings against the defendants seeking declarations and orders that (1) upon his appointment as a minister the first defendant should have ceased forthwith exercising any of the powers, functions and duties as governor, including chairmanship of the provincial assembly, and the first plaintiff, the deputy governor, should have assumed office as acting governor and been able to chair the provincial assembly at which the new governor was elected; and (2) the third defendant was unlawfully elected as governor, contrary to the Standing Orders, as both the first defendant and the first plaintiff were absent from the assembly meeting, and the Standing Orders provided that in such situations the meeting must be adjourned to the next sitting day.

Held:

(1) The first defendant was authorised by Section 19(4) of the Organic Law to continue in office until the election of the next governor; and there being no law providing that the deputy governor would become acting governor, or requiring the first defendant to act in only a caretaker capacity, the first defendant was authorised to perform all the powers, functions, duties and responsibilities of that office, including chairing the meeting of the provincial assembly to elect the next governor.

(2) The election of the third defendant was in violation of the Standing Orders as both the governor and the deputy governor were absent from the meeting, so the meeting should have been adjourned to the next sitting day. Though the Standing Orders were suspended and the members present and voting permitted the fourth defendant to chair the meeting and proceeded to elect the third defendant as governor, the Standing Orders could only be suspended if the meeting were lawfully constituted. As there was no proper chairman, the meeting was unlawfully constituted.

(3) The election of the third defendant was null and void. The first defendant remains as governor until the election of the next governor. Parties bear their own costs.

Cases cited

The following cases are cited in the judgment:

Haiveta v Wingti [1994] PNGLR 160
James Eki Mopio v The Speaker [1977] PNGLR 420
Koroka v Kapal [1985] PNGLR 117
Special Reference by East Sepik Provincial Executive (2011) SC1154

ORIGINATING SUMMONS

This was a trial in which the plaintiffs sought declarations and orders regarding the office of governor of a province.

A J Kumbari, for the Plaintiffs
S Liria, for the Defendants

27^th June, 2019

1. CANNINGS J: The first defendant, Hon Sasindran Muthuvel MP, has been, indisputably, the Governor of West New Britain Province since 2012. He was recently appointed a Minister in the National Government. The Organic Law on Provincial Governments and Local-level Governments provides that in such situations the Governor has to vacate his office and the provincial assembly has to elect a new governor.

2. Soon after he was appointed a Minister, Mr Muthuvel announced publicly that he would remain as governor until the election of a new governor. On 18 June 2019 a meeting of the Provincial Assembly held at Kimbe elected the third defendant, Hon Francis Galia Maneke MP, as the new governor.

3. There are two plaintiffs in this case:

• the first plaintiff, Hon Lawrence Mango MPA, the Deputy Governor ; and
• the second plaintiff, Hon Joseph Lelang MP, the member for Kandrian-Gloucester Open.
  

4. They are aggrieved by what has happened and commenced proceedings against Mr Muthuvel, Mr Maneke and three other defendants seeking declarations and orders that can be placed into two categories:

(1) that upon his appointment as a Minister the first defendant should have ceased forthwith exercising any of the powers, functions and duties as Governor, including chairmanship of the provincial assembly, and the first plaintiff, the deputy governor, should have assumed office as acting Governor and been able to chair the provincial assembly meeting at which the new governor was elected; and

(2) that the third defendant was unlawfully elected as Governor, contrary to the Standing Orders of the Provincial Assembly, as both the first defendant and the first plaintiff were absent from the assembly meeting, and the Standing Orders provided that in such situations the meeting must be adjourned to the next sitting day.

5. More precisely, the amended originating summons filed on 26 June 2019 seeks relief in the following terms:

1. A DECLARATION ORDER that where a “vacancy” occurs in the office of the Provincial Governor under Section 19(1)(b)(i) of the Organic Law on Provincial Governments & Local Level Governments, the First Defendant shall cease forthwith as at the date of signing of the instrument of appointment as Minister, for exercising any powers, duties and functions related to the office of the Provincial Governor for West New Britain Province.
2. A DECLARATION ORDER that where a “vacancy” occurs in the office of the Provincial Governor under Section 19(1(b)(i) of the Organic Law on Provincial Level & Local Governments, the First Defendant shall cease forthwith as at the date of signing of the instruction of appointment as Minister, from presiding over as “Chairman” of the Provincial Assembly.
3. A DECLARATION ORDER that where a “vacancy” occurs in the office of the Provincial Governor under Section 19(1)(b)(i) of the Organic Law on Provincial Governments & Local Level Governments, the First Plaintiff in his capacity as the Deputy Governor assumes office as Acting Governor and exercises all powers, functions and responsibilities of the office of the provincial Governor including presiding over as “Chairman” of the Provincial Assembly and the Provincial Executive Council.
4. A DECLARATION ORDER that the sitting of the Provincial Assembly on Tuesday 18^th June 2019 “chaired” by the Acting Director for Parliamentary Services Division Mr Sydney Nuli not being a member of the Provincial Assembly was improper and unlawful (illegal) contrary to Section 21(1) & (2) of the Organic Law on Provincial Governments & Local Level Governments, West New Britain Provincial Assembly Standing Orders 1999 (12) and therefore null and void.
5. An ORDER that the purported election of Hon. Francis Galia Maneke, MP as Provincial Governor in the illegal sitting of the Provincial Assembly on Tuesday 18^th June 2019 “chaired” by the Kimbe Town Mayor, Mr Jackson Endo, is improper and unlawful (illegal) contrary to Section 22(1) & (2) of the Organic Law on Provincial Governments & Local Level Governments, West New Britain Provincial Assembly Standing Orders 1999 (12) and therefore null and void.
6. Consequently, an ORDER that such illegal acts, omissions and/or breaches committed by the First and Second Defendants and their servants and agencies are in breach of Sections 21(1) & (2), Section 22(1) & (2) of the Organic Law on Provincial Governments & Local Level Governments, the West New Britain Provincial Assembly Standing Orders 1999 (12) and subsequent Court Orders of 18 June, 2019, thus on the face of the law liable for contempt under Order 14 Rule 42(1) of the National Court Rules.
7. The First Defendants to pay costs of these proceedings.
8. Any other Orders of this Courts thinks appropriate.
   

ISSUES

6. There are two basic issues to be decided:

(1) Should Mr Muthuvel have ceased exercising all of the powers, functions and duties as governor, including chairmanship of the provincial assembly, as soon as he was appointed a minister?

(2) Was Mr Maneke lawfully elected as governor?

1. SHOULD MR MUTHUVEL HAVE CEASED EXERCISING ALL OF THE POWERS, FUNCTIONS AND DUTIES AS GOVERNOR, INCLUDING CHAIRMANSHIP OF THE PROVINCIAL ASSEMBLY, AS SOON AS HE WAS APPOINTED A MINISTER?
   

7. This is a question of law to be determined in accordance with Section 19 (vacation of office of the provincial governor) of the Organic Law, which provides:

(1) If the Provincial Governor—

(a) is dismissed from office in accordance with Section 20; or

(b) is appointed—

(i) a Minister or a Vice-Minister in the National Government; or

(ii) the Speaker or Deputy Speaker of the Parliament; or

(iii) the Leader or Deputy Leader of the Opposition in the Parliament; or

(iv) the Chairman of the Permanent Parliamentary Public Works Committee; or

(v) the Chairman of the Permanent Parliamentary Public Accounts Committee; or

(vi) to an office which has powers and privileges equivalent to those of a Minister; or

(c) resigns his office by written notice to the Minister responsible for provincial government and local-level government matters; or

(d) is, in the opinion of two medical practitioners appointed for the purpose by the National Authority responsible for the registration or licensing of medical practitioners, unfit, by reasons of physical or mental incapacity, to carry out the duties of his office; or

(e) is otherwise disqualified by law or ceases to be a member of the Provincial Assembly or of the National Parliament,

he shall be deemed to have vacated the office of the Governor.

(2) Where the Provincial Governor is a Member of the National Parliament, other than the Member of the Parliament representing the province, he shall be deemed to have vacated the office of the Governor, if he—

(a) is dismissed from office in accordance with Section 20; or

(b) resigns his office in accordance with Subsection 1(c); or

(c) is, in the opinion of two medical practitioners appointed for the purpose by the National Authority responsible for the registration or licensing of medical practitioners, unfit, by reason of physical or mental incapacity, to carry out the duties of his office; or

(d) is appointed to any of the offices referred to in Subsection (1)(b); or

(e) is otherwise disqualified by law or ceases to be a member of the Provincial Assembly or of the National Parliament.

(3) Where the Provincial Governor vacates his office in accordance with Subsection (1)(b) or (c), or Subsection (2)(a), (b), (c) or (d), he shall continue to hold office as a member of the Assembly, and is eligible to be re-appointed as, but does not automatically become, the Provincial Governor during the balance of his term of office in the Assembly.

(4) Notwithstanding Subsections (1) and (2), the Provincial Governor shall continue in office until the election of the next Provincial Governor.

(5) For the purposes of Subsection (1)(b)(vi), the National Executive Council may determine whether an office is an office to which that subparagraph applies.

8. The plaintiffs argue that Mr Muthuvel should have vacated the office of Governor as soon as he was appointed a Minister on 7 June 2019, because of Section 19(1)(b)(i), which provides:

If the Provincial Governor ... is appointed ... a Minister ... in the National Government ... he shall be deemed to have vacated the office of the Governor.

9. The plaintiffs say that from 7 June onwards, until the election of the next Governor, any powers that Mr Muthuvel had were in a caretaker capacity only, and Mr Mango, as Deputy Governor, became Acting Governor.
10. Having considered the competing arguments of the defendants, I reject the plaintiffs’ arguments. Section 19(4) is clear: though Section 19(1)(b)(i) requires Mr Muthuvel to vacate the office of Governor, he nevertheless remains the Governor until the election of the next Governor.

11. There is no provision for the Deputy Governor assuming the role of Acting Governor. There is no provision for the Governor being a “caretaker” only. Mr Muthuvel was entitled and required to remain as Governor, until the election of the next Governor. He was authorised to perform all the powers, functions, duties and responsibilities of that office, including chairing the meeting of the provincial assembly to elect the next governor.

12. The first category of relief sought by the plaintiffs will be refused.

2 WAS MR MANEKE LAWFULLY ELECTED AS GOVERNOR?

13. There were two meetings of the Provincial Assembly on 18 June, the first started at 10.15 am, the second started at 3.15 pm. It was at the second meeting that Mr Maneke was elected. Neither Mr Muthuvel nor Mr Mango were present and able to chair this meeting. Mr Muthuvel was complying with an interim order of this Court made at Kimbe on the morning of 18 June preventing him from exercising his functions as Governor. Mr Mango was evidently at the National Court in Kimbe as the interim order of that morning was made ex parte and returned for mention at 3.00 pm that day.

14. What happened at the 3.15 pm meeting was that the Standing Orders were suspended and the members present voted that Hon Jackson Endo MPA (the third defendant) take the chair, which he did. Mr Endo then conducted the election and Mr Maneke was elected Governor. This was done in purported compliance with Section 21 (election of the provincial governor in the event of vacancy) of the Organic Law, which states:

(1) Subject to Subsection (3), if the Provincial Governor vacates his office in accordance with Section 19(1), or is dismissed from office in accordance with Section 20, the Provincial Assembly shall, from amongst the members of the Assembly who are Members of the Parliament, elect the Provincial Governor.

(2) Subject to Subsection (3), if the Provincial Governor elected under Subsection (1) vacates his office in accordance with Section 19(2), or is dismissed from office in accordance with Section 20, the Assembly shall elect another Member of the Parliament to be the Provincial Governor.

(3) If—

(a) a vacancy exists in the office the Provincial Governor; and

(b) all of the Members of the Parliament—

(i) are appointed to any of the offices referred to in Section 19(1)(b); or

(ii) are otherwise disqualified by law,

the Assembly shall, from amongst the members referred to in Section 10(3)(b) and (c), elect the Provincial Governor.

15. The plaintiffs argue that Mr Endo was not authorised to be chairman of the afternoon meeting of 18 June 2019, as this was not permitted by the Standing Orders of the Provincial Assembly, and this meant that the election of Mr Maneke was unlawful.

16. I have hesitated before determining that argument as the Courts have a traditional reluctance, based in the common law, in being seen to interfere in the internal affairs of a legislative body, which is what a provincial assembly is. That reluctance found expression in PNG in the early years after Independence in James Eki Mopio v The Speaker [1977] PNGLR 420 and Koroka v Kapal [1985] PNGLR 117. As time went on, the judicial supervision of parliaments has increased, as shown by cases such as Haiveta v Wingti [1994] PNGLR 160 and Special Reference by East Sepik Provincial Executive (2011) SC1154.

17. I consulted counsel for the parties on whether I should allow evidence and argument as to the conduct of the proceedings of the Assembly of 18 June 2019, including the question of the alleged breach of the Standing Orders. Neither Mr Kumbari for the plaintiffs nor Mr Liria for the defendants saw any difficulty. And I don’t, on reflection, see any either. I note that in Francis Potape v Philip Undialu (2016) N6405, Makail J decided a case about the governorship of Hela Province by a detailed consideration and application of the Standing Orders of the Provincial Assembly. So I will proceed to determine the arguments on their merits.

18. I find that the election of Mr Maneke was in violation of the Standing Orders as both the Governor (Mr Muthuvel) and the Deputy Governor (Mr Mango) were, in effect, absent from the meeting. The meeting should have been adjourned to the next sitting day, in accordance with Section 12 of the Standing Orders, which states:

(1) Whenever the Assembly is informed by the Clerk of the absence of both the Chairman and the Deputy Chairman, the Clerk shall, subject to any other order of the Assembly, adjourn the Assembly to the next sitting day.

(2) If on the next sitting day under this Standing Order, the Assembly is informed by the Clerk of the absence of both the Chairman and Deputy Chairman, the Assembly shall, subject to any order of the Assembly, appoint a Member amongst their number as an Assistant Chairman to perform the duties of the Chairman for that sitting.

19. Though the Standing Orders were suspended and the members present and voting appointed Mr Endo an Assistant Chairman to chair the meeting, and though this arguably was an “order of the Assembly” for the purposes of Section 12(1), and the Assembly proceeded to elect Mr Maneke as Governor, I find that there is too much room for doubt as to compliance with the Standing Orders. A critical decision was to be made as to who the next Governor should be. Strict compliance with the Standing Orders was required.

20. I find that the Standing Orders were unlawfully suspended, as there was no proper chairman. The meeting should have been adjourned to the next sitting day.

21. Furthermore, common sense, prudence and respect for the National Court (which was sitting on this case at the same time that the Assembly was sitting) required that the Assembly meeting be adjourned, at least to the next sitting day.

22. I find that Mr Maneke was not lawfully elected.

CONCLUSION

23. The first category of relief sought by the plaintiffs will be refused. The second category of relief will be granted. The election of Mr Maneke was unlawful. Mr Muthuvel remains as Governor until the election of the next Governor. Mr Maneke is eligible to contest the election, as is the other Open member, Mr Lelang. The parties will bear their own costs.

ORDER

1. The relief sought in paragraphs 1 to 3 of the amended originating summons filed 24 June 2019 is refused and instead it is declared that notwithstanding his appointment as a Minister in the National Government the first defendant perforce of Section 19(4) of the Organic Law on Provincial Governments and Local-level Governments continues in office as Governor of West New Britain Province until the election of the next Governor and is thereby authorised to perform all the powers, functions, duties and responsibilities of that office, including chairing the meeting of the provincial assembly to elect the next Governor.
   
2. The relief sought in paragraphs 4 to 6 of the amended originating summons is substantially and in principle granted and it is accordingly declared and ordered that: (a) the election on 18 June 2019 of the third defendant as the next Governor is unlawful and null and void; and (b) the first defendant remains in office as Governor until the election of the next Governor; and (c) the West New Britain Provincial Assembly shall proceed forthwith to elect the next Governor as required by and in accordance with Section 21(1) of the Organic Law on Provincial Governments and Local-level Governments, in compliance with the Standing Orders of the West New Britain Provincial Assembly.
   
3. Interim orders made in the course of these proceedings are dissolved.
   
4. The parties shall bear their own costs of the proceedings.
   

Judgment accordingly.
__________________________________________________________
Kumbari & Associates Lawyers: Lawyers for the Plaintiffs
Liria Lawyers: Lawyers for the Defendants