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Kipo v Maha [1994] PGNC 15; N1252 (18 August 1994)

Unreported National Court Decisions

N1252

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. Central Provincial Government Constitution 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 Mopio v The Speaker of the National 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. A declaration that the meeting convened by the Clerk of the Provincial Assembly on 4th August 1994, unconstitutional for failure to comply or alternatively breached section 17 and 18 (1) (b) of the Central Provincial Constitution and section 7 and 8 of the Standing Orders of the Provincial Assembly.

1A. A declaration 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 and 18 (1) (b) of the Central Provincial Constitution and section 7 and 8 of the Standing Orders of the Provincial Assembly.

2. A declaration that the defendant'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 17 and 18 (1) (b) of the Central Provincial Constitution and section 7 and 8 of the Standing Orders of the Provincial Assembly.

3. An order restraining the defendant from performing any function and duties of Premier of Central Province until the determination of this matter.

4. A declaration 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 what transpired in the chamber of the Provincial Assembly 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. On 14th July 1994 His Honour Mr Justice Sheehan declared null and void the election of the Plaintiff as Premier of Central Province, stating that the election of the Plaintiff as Premier on the 3rd August 1993 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, seventeen 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. On 2nd August 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 of the Province.

4. On 3rd August 1994, the 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. At 10.00 am on the 4th August 1994, the Central Provincial Assembly commenced its meeting. At 10.10 am on the 4th August 1994 the plaintiff was elected unopposed by the Provincial Assembly. The Speaker of the Provincial Assembly declared the plaintiff elected unopposed as Premier of Central Province.

6. At 10.15 am of the 4th August 1994 the Speaker adjourned the Provincial Assembly meeting until further notice.

7. At 10.30am on the 4th August 1994 the Clerk of the Provincial Assembly was summonsed by the defendant to the Assembly hall. There he met and had conference with Adrian Genolagani, Tom Manjin and one Mr Kalu, all staff members of the National Parliament. Whilst the conference was going on, the seventeen members of the defendants group were already seated in their respective seats on the floor of the Assembly. During the conference the Clerk read and showed the three men the minutes of the meeting.

8. After that the Clerk of the Provincial Assembly was advised by the three men to reconvene the meeting, saying that the previous meeting was incomplete.

9. Upon this advise, the Clerk convened another meeting of the Provincial Assembly.

10. The Clerk of the Provincial Assembly chaired this meeting conducted proceedings of the Assembly until it's conclusion at 10.50 am of the 4th August 1994. During this meeting the defendant was elected unopposed as Premier of Central Province. After his election the Provincial Assembly was further adjourned until further notice.

11. On 5th August 1994, the plaintiff commenced legal proceedings in the National Court against the defendant claiming that his election as Premier was unconstitutional.

12. Despite this pending legal proceedings, the Defendant caused another meeting of the Central Provincial Assembly to be convened at 2.00pm on the 8th August 1994. During this meeting through 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 absence of the Speaker. Mr Hakai then proceeded to conduct 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 1A, 2A and 4. Paragraphs 1A and 2A relate to the election of the defendant as premier on 8th August, 1994 and paragraph 4 relates to the election of the plaintiff as premier on 4th August 1994. I will consider the two elections in the order of their appearance in the amended Statement of Claim.

ELECTION OF 8 AUGUST 1994

The plaintiff and his supporters having been absent from the chambers 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. On 8 August 1994 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 in the Assembly Chambers convened at the request of about eighteen (18) Assembly Members. I was given a list of those Members who were present in the Chambers by the Acting Clerk Mr Gavo Gabone. The list numbered eighteen (18) Members. The list is annexed hereto and marked with the letter ‘B’. The Acting Clerk Mr Gavo Gabone was in attendance and co-ordinating the Assembly. The Members present then appointed Mr Ovo Hakai to assume the position of Acting Speaker in the absence of the Speaker. The Acting Speaker then announced that the elections of both Mr Kipo and Mr Maha by the Assembly on 4 August 1994 were both unconstitutional 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. OFFICES OF SPEAKER AND DEPUTY SPEAKER

1. Subject to Section 55 (First Speaker and Deputy Speaker) there shall be offices of Speaker and Deputy Speaker of the Provincial Assembly.

2. The Speaker and Deputy Speaker shall be members of the Assembly, and shall be elected by the Assembly by secret ballot in accordance with the Standing Orders.

3. The Speaker and Deputy Speaker hold office, and their offices become vacant in accordance with an Act of the Assembly and the Standing Orders.

4. Subject to Section 55 (First Speaker and Deputy Speaker), not Executive Member may be the Speaker or Deputy Speaker, and if a Speaker or Deputy Speaker becomes an Executive Member he vacates his office as Speaker or Deputy Speaker, as the case may be.

16A. VACATION OF OFFICE OF SPEAKER AND DEPUTY SPEAKER

The Office of the Speaker or Deputy Speaker, as the case may be, becomes vacant:

1. When the Assembly first sits and elects a New Speaker of Deputy Speaker after a General Provincial Election; or

2. If following the General Provincial Election he ceases or fails to qualify to be a member of the Assembly; or

3. If he ceases to be a member of the Assembly under the constitution and or an Act of the Assembly; or

4. If he resigns by written notice to the Premier; or

5. If the Assembly resolves by absolute majority vote that he be removed from office; or

6. On his death.

17. FUNCTIONS OF SPEAKER AND DEPUTY SPEAKER

1. The Speaker is responsible, subject to and in accordance with this Constitution, an Act of the Assembly and the Standing Orders of the Assembly, for upholding the dignity of the Assembly, maintaining order in it, regulating its proceedings and administrating its affairs, and for controlling the precincts of the Assembly as defined by or under an Act of the Assembly.

2. In 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 by or under an Act of the assembly or the Standing Orders, the Deputy Speaker has all the rights, privileges, powers, functions, duties and responsibilities of the Speaker.

3. An Act of the Assembly or the Standing Orders may provide for other powers, functions, duties and responsibilities of the Speaker and the Deputy Speaker.

Subdivision C - Powers and Procedures

18. CALLING OF MEETINGS OF THE ASSEMBLY

1. The Assembly shall be called to meet not more than 21 days after:

(a) the day fixed for the return of the writs for a general election; or

(b) the day on which the Speaker receives a request in writing to call a meeting from:

(i) not less than 50% of the members of the Assembly; or

(ii) the Premier.

and shall meet not less than once in each period of three months.

2. Subject to Subsection (1), an Act of the Assembly or the Standing Orders may make provision for the calling of meetings of the Assembly and in respect of the Assembly.”

It has been submitted by Mr Soi for the Plaintiff 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 Isaimo was not out of the province nor was he unable to perform his duties. All that the Speaker had done on 4 August was that he adjourned further business of the Provincial Assembly until further notice.

Mr Soi also submitted that the election of the defendant as premier on 8 August 1994 was in breach of Section 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 1994 other than that seventeen (17) members were present at the 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 (1) of the 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. Neither the officers from the National Parliament nor the Acting Clerk of the Provincial Assembly had the constitutional basis to instigate and co-ordinate the meetings of the Provincial Assembly.

Thirdly, by virtue of 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 that there 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 some justification for appointing an Acting Speaker. In fact from Annexure “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 Provincial Assembly because on 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 meeting in which the defendant was elected premier obviously appears to have been convened in defiance of that notice. There is also no evidence that Ovo Hakai was the duly elected Deputy Speaker. To the extent that Mr Ovo Hakai's appointment as Acting Speaker was in breach of the Constitution any business over which he presided was a nullity.

Finally, the meeting was not convened at the written request of at least 50% of the members as required by Section 18 (1) (b) of the Constitution. A list of names has been annexed to the affidavit of Tom Manjin but I, with respect, do not accept that it satisfies the requirement of Section 18 (1) (b). From the heading of the list as well as the fact that it contains the names 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 suprising as well as 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 of the 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 on 4th August 1994 as it was done in accordance with Section 17 (1) and 18 (1) (b) of the Provincial Constitution. This, he submitted, was clear from the affidavit of Peter Isoaimo sworn on 5th August and filed herein on 8th August which shows that the meeting of 4th August was called by him (the duly elected Speaker) upon written request of the 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” to the affidavit shows that due notice of the meeting scheduled for 4th August was given to all the members of the Provincial Assembly. Apart from disputing pursuant to the provisions of the Standing Orders as to 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 words, Mr Koiri does not make submissions similar to that made by Mr Soi in respect of the defendant's election as premier on 8th August 1994. All Mr Koiri has done is that he has relied on the Standing Orders and submitted 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. ...

2. There shall be freedom of speech, debate and proceeding in the Assembly, and the exercise of those freedoms shall not be questioned in any court or in any proceedings whatever, (otherwise than in proceedings in the Assembly or before 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 Court is to see that Constitutional procedures are met. It is not open to the Court to question the internal proceedings of Parliament. It cannot investigate the manner in which the Parliament has exercised its function.

...no claim can succeed before a Court which impugns the manner in which the Parliament exercised its function since this would, or might lead to the Courts 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 the Supreme Court, apart from considering Section 142(4) of the National Constitution which related to the election of the Prime Minister after a general election also considered Section 115 (2) of the National Constitution which is in substantially similar terms to Section 14 (2) of the Provincial Constitution. One of the basis of the action by the plaintiff Mr Mopio in that case was that the Speaker had failed to comply with Standing Orders of the National Parliament. In relation to Section 115 (2) of the Constitution the Supreme Court said at p. 422:

“Whilst full recognition is to be given to the autochthonous nature of the Constitution of Papua New Guinea, this passage is helpful in illustrating the meaning of s. 115 (2). It is as follows:

‘Reference was also made to Bradlaugh v Gossett, and it is sufficient to read a short portion of the headnote: ‘The House of Commons is not subject to the control of Her Majesty’s Courts in its administration of that part of the statute law which has relation to its internal procedure only. What is said or done within its walls cannot be inquired into in a court of law...’ There is a clear affirmation of the exclusive right of Parliament to regulate its own internal proceedings.’”

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. Accordingly as the issues before 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 duties of the Speaker, this Court 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. Courts simply have no jurisdiction to investigate the compliance or otherwise with the internal procedures of parliament including compliance with Standing Orders. I am therefore inclined to accept Mr Soi’s submissions and reject Mr Koiri’s submissions on this issue of jurisdiction/justiciability which I do. The law as it stands does not allow me to accept Mr Koiri’s submissions on this aspect unfair and immoral it may appear. Mr Koiri has also not established that the meeting convened by the Speaker on 4th August 1994 was in breach of the Provincial Constitution in the way Mr Soi has shown in respect of the election of the defendant on the same 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: Soi & Associates Lawyers

Lawyers for the defendant: Aisi & Koiri Lawyers