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Papua New Guinea Law Reports |
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
PETER IPATAS
V
ENGA INTERIM PROVINCIAL GOVERNMENT; AND
DANLEY TINDIWI
MOUNT HAGEN: AKURAM J
1, 24 October, 6, 29 November 1996
Facts
Peter Ipatas was elected as the Interim Deputy Governor of Enga Province and the Interim Deputy Chairman of the Enga Interim Provincial Assembly on 28 June 1996 by the Interim Enga Provincial Assembly. The meeting was constituted by 16 of the 21 Interim Provincial Assembly members and held in Mt. Hagen, Western Highlands Province. The meeting was not attended by the current Interim Deputy Governor, Mr Danley Tindiwi and the other Assembly members. Mr Tindiwi refused to vacate his office and positions claiming that the meeting of 28 June 1996, which resulted in his removal, was unconstitutional. Mr Ipatas sought a number of declarations to remove Mr Tindiwi from office.
Held
Cases cited
Gulf Provincial Government (In Suspension) v Minister for Village Services [1994] PNGLR 34.
Hagai Joshua & Or. v Aron Meya & Ors [1988-89] PNGLR 188.
Paul Kipo v Rova Maha (1994) (Unreported) N1252.
Rova Maha v Paul Kipo [1994] PNGLR 441.
Counsel
L Henao, for the plaintiff.
D Coyle & J Bray, for the defendants.
29 November 1996
AKURAM J. The plaintiff is seeking amongst others the following orders by way of an originating summons filed on 20th August 1996 that:
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:
4.1. 30/5/96 Meeting of the Assembly held despite above toksave or Circular No. 11/96.
4.2. 30/5/96 Swearing in of Jacob Kambilyo as the Chairman of the Health Committee and Ipatas as the Chairman of the Education Committee.
5.1. 3/6/96 Termination Notice by Tindiwi to Neakson effective as of the 10th of June 1996.
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 the 30th of May 1996.
I consider the above facts to be the main events surrounding the resolution to dismiss Tindiwi from office and resolution to elect Ipatas as Deputy Governor, Deputy Interim Assembly Chairman and the Deputy PEC Chairman.
The main issues raised in the case are:
However, in the light of the evidence and submissions received and made before me, I have arranged the issues into three main areas: (a) Whether the use of an originating summons is an abuse of the process; (b) What are the peripheral issues; and (c) What are the real issues. The two latter issues are further broken down as follows:
(b) Peripheral Issues raised:
(i) Whether the termination of Ainu Neakson as Interim Assembly Clerk and the appointment of Tipian as Acting Clerk of Assembly valid;
(ii) What was the correct place of holding Assembly meetings;
(iii) Whether Henry Waingi has authority over Ainu Neakson is lawful.
(iv) Whether the Administrator’s acted lawful recognition or otherwise of Ainu Neakson’s termination.
(c) Real Issues:
(i) Whether the meeting of 30/5/96 was properly held.
(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 provincial government system?
(iii) If the answer to (ii) is affirmative, then was Tindiwi’s response a reaction to that notice?
(iv) If the answer to (iii) is affirmative then was Tindiwi’s response sufficient to have a vote or resolution in his absence?
(v) Was the manner in which the meetings of 30/5/96 and 28/6/96 held in compliance with the OLPGLLG?
(vi) Does the Standing Orders as adopted by the Interim Provincial Government comply with Interim Provisions of the OLPGLLG?
(viii) If the answer to (iv) is affirmative then what is the consequence?
The defence counsel has 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 sole 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. The whole issue and the facts surrounding this case are in fact dealing with the proper interpretation and/or application of the Interim Provisions of the OLPGLLG. The provisions on Interim Provincial Government are in Part VI of the OLPGLLG and particularly subdivision 3.C, which contain ss 123 to 132. Section 121 defines "Interim period" to mean:
"The period on and from the date of coming into operation of this Organic Law in relation 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 of the Interim Provincial Government or Interim Provincial Executive Council, 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 OLPGLLG. So this case is really disputing the operations of ss 123 to 132, especially 125 and whether the Standing Orders of the 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 these proceedings is not an abuse of the process.
The second reason is that O 4 r 3(1) & (2) gives the plaintiff discretion as to the mode of proceedings appropriate to his circumstances. In NEC & Ors v P.E.A. [1993] PNGLR 264, it was held that:
"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 a 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:
"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 under the heading peripheral 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 or in the Interim provisions of the OLPGLLG as to where the Assembly should hold its meetings. The closest one can get is in Standing Order No. 2 & 17.
Standing Order No. 2 says:
"Calling of Meetings
The speaker shall, by notice given to each Member:
(a) call a meeting of the Assembly within 21 days of the return of the writs for a general election; and
(b) Specify the date and place of the meeting". (Underlining mine).
What this means is that it is in the discretion of the Speaker to appoint the time and place 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 OLPGLLG. Section 125(8) reads:
"The Interim Provincial Government shall determine its own procedures, quorums and number of meetings".
And s 15(2) of the OLPGLLG, although not applicable during the Interim period, further confirms this position. These two sections and the Standing Orders uphold the principle that courts are not to interfere in the internal operations of the Legislature, be it National Parliament or Provincial Assembly as held in the cases of Gulf Provincial Government (in suspension) v Minister for Village Services [1994] PNGLR 435 and Paul Kipo v Rova Maha (1994 Unreported) N1252, and Rova Maha v Paul Kipo [1994] PNGLR 445.
In Rova Maha v Paul Kipo (supra) the Supreme Court held at page 448 that:
"The Standing Orders are the rules made for the regulation 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 always available to the Assembly. The majority rules"
It is not imperative that the Provincial Assembly meeting should take place at a particular place. The OLPGLLG 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 S 136A (Application of Other Laws) would mean subject to the OLPGLLG. Section 136A reads:
"Where -
(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 -
(c) a provision of; or
(d) an office established by or under, the repealed laws,
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 who is the Chairman of the Provincial Assembly, and whatever days or times and place of meetings he determines, is subject to the Interim provisions of the Organic Law. The fact that the current Provincial Government is only an Interim Provincial Government governed only by the Interim provisions under Division 3.C, Part VI of the OLPGLLG, s 125(8) would apply and over-ride Order 17. That is, Order 17 need not be complied with during the Interim period pursuant to s 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 intent and purpose of the Interim provisions of the OLPGLLG (commencing from s 123 to s 132) is not to disturb, interfere or interrupt the smooth flow of the new Provincial Government being established. 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 s 125(5A) on the OLPGLLG later.
The defence has argued that the Clerk of Assembly was terminated as of 10/6/96 by a notice of the 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 the law that governs the termination of the Clerk of Assembly by the Governor. The plaintiff referred me to the Enga Provincial Government, Provincial Administrative Staff Act 1986. The defence argues that that Act is not applicable, but the "Enga Employment Authority (Conditions of Employment) Regulation 1988. The Regulation is authorised by s 25 of the Enga Provincial Government, Provincial Administrative Staff Act 1986. The defence submitted that according to s 23(1) & (2), the Enga Employment Authority shall advise the Provincial Executive Council on positions in the Department of Enga which are controlled and supervised by the PEC. That is why the PEC had passed a resolution to effect the termination of the 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 of 28/6/96.
The Plaintiff on the other hand submits that the Acting Governor had no power to terminate the Clerk of Assembly. So Mr. Neakson was still employed as the Interim Assembly Clerk under the Enga Provincial Government, Provincial Administrative Staff Act 1986. 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 as stated in a letter he wrote in response to the termination notice by Tindiwi 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."
Furthermore, s 69 (2), of that Act reads:
"APPOINTMENTS TO OFFICES IN PROVINCIAL GOVERNMENTS AND LOCAL-LEVEL GOVERNMENTS SECRETARIATS, ETC.
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".
These two sections mean two things.
(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. In the interim period however those officers of a Provincial Secretariat are to be temporarily or casually employed against the positions they hold under the 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 the Enga Gazette.
(2) Only the Administrator has the power to select, appoint, promote, transfer, discipline and terminate staff of a Provincial Government and no one else.
Therefore, the total effect of all these is that Ainu Neakson, the Interim Clerk of Assembly of the Enga Provincial Government, was never terminated as alleged by the 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 on this view by s 129(1) of the OLPGLLG which requires that officers appointed under the repealed laws 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 the 28th of June 1996 was in compliance with the OLPGLLG. The relevant provisions is s 125, especially sub-section (5A) and (8). 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 and adopted the Standing Orders of the previous Provincial Government. The relevant Standing Order is number 17, which I have mentioned above. That should be read in line with s 132 of the OLPGLLG, 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 powers 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 OLPGLLG.
I agree with the plaintiff’s contention, but not his argument that the Standing Orders as adopted be followed in accordance with s 125(8) of OLPGLLG. I say this for the very reasons said above and adopt those views in this argument. This is, the intention of the Parliament is to apply, in the Interim period, the relevant provisions of the OLPGLLG. In this instance ss 123 to 132 located under Division 3.C of Part VI. Second, the decision to hold meetings or decide the procedures and conduct the daily 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 (supra) that the court has jurisdiction to consider compliance with constitutional requirements as to the 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 ss 133 & 134 of the Constitution). In this case, we have a meeting held on the 2nd of May 1996 whereas the Assembly set the 30th of May 1996 as next date of the Assembly meeting. On 23/5/96 Mr Tindiwi, the Acting Governor deferred the meeting to a later day in July. The Assembly members despite the deferral convened a meeting on 30th of May 1996 whereby the plaintiff was appointed acting Chairman and chaired the meeting according to s 125(5) & (5A). The Assembly then set 28th of June 1996 as the next date of its 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 the circular issued by the Chairman on 30th May 1996, Mr Peter Ipatas. 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. On 3rd June 1996 Ipatas wrote to the Acting Governor, Danley Tindiwi informing him of the Assembly resolution which called for the resignation of the Acting Governor within 14 days from 30th May 1996. Mr Tindiwi was therefore aware of the meeting of 28th June 1996. He responded in letters to the Provincial Police Commander of Enga on 26th June 1996 asking for assistance to stop unauthorised Assembly meetings and another letter to the Provincial Administrator, Mr Talyaga on 28th June 1996 to (i) stop Ipatas from holding such a meeting and (ii) brief him of what was going on between the Administrator and Ipatas. I reproduce these letters below respectively.
Provincial Police Commander
Provincial Police Headquarters
P.O. Box 128
WABAG EP
Dear Sir,
POLICE ASSISTANCE TO STOP UNAUTHORISED ASSEMBLY MEETINGS
I have heard that Mr Peter Ipatas has circulated a notice to the 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 neither 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 of 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 the 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 the 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 any selfish power-hungry individuals do not unduly disturb peace and stability, which we have enjoyed so far.
For your compliance please.
HON DANLEY TINDIWI MPA
Acting Governor
cc: Provincial Administrator
Enga Interim Provincial Assembly Members
Assistant Police Commissioner, Highlands Command
Dear Mr Talyaga,
UNAUTHORISED ASSEMBLY MEETING BY MR PETER IPATAS
I am advised lately that Mr Peter Ipatas has brought a lot of the Council Presidents to Mt 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.
You are now instructed to:
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.
For your compliance please.
HON. DANELY TINDIWI MPA
Acting Governor
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. There were 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).
Section 125(5A) of the OLPGLLG was added by Amendment No. 1 of 1995 or 1996. It was an addition to subsection 5 dealing with the Premier of the previous Provincial Government. If the premier of the previous Provincial Government does not decide to be the Deputy Governor and Deputy Chairman of the 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 provision did not provide for a situation as in this case where the Assembly wants to remove the Deputy Governor, which it is intended to solve. Section 125(5A) requires that the 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 the Interim Deputy Governor and Interim Deputy Chairman. 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 in the case of Hagai Joshua and Or v Aron Meya and Ors [1988-89] PNGLR 188, where the Morobe Provincial Constitution provided for votes of no-confidence and procedures to be followed. In that case section 28(1) of the Morobe Provincial 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 intent and purposes 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 OLPGLLG.
Applying s 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 the Deputy Governor out of office. The same numbers voted by a resolution to vote into office Peter Ipatas as Deputy Governor. That vote had more than two-thirds of the Assembly members and or majority of the Assembly members present.
For the above reasons, I find that the meeting of 30th May 1996 and the meeting of 28th June 1996 were proper. I also find that the voting out of office of the Deputy Governor, D. Tindiwi and subsequent voting of Peter Ipatas as Deputy Governor were proper.
I therefore, make the following declarations:
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.
Lawyer for the plaintiff: Henao Lawyers.
Lawyer for the defendant: Pato Lawyers.
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