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National Court of Papua New Guinea |
Unreported National Court Decisions
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS NO 370 OF 1996
PETER IPATAS - Plaintiff
V
ENGA INTERIM PROVINCIAL GOVERNMENT - First Defendant
DANLEY TINDIWI - Second Defendant
Mount Hagen
Akuram J
1 October 1996
24 October 1996
6 November 1996
29 November 1996
CONSTITUTIONAL LAW - Organic Law on Provincial Government and Local Level Government - Election of Deputy Interim Governor and Deputy Interim Deputy Chairman - s. 125 (5A) of OLPG & LLG.
CONSTITUTIONAL LAW - OLPG & LLG Interim Provisions - Standing Orders - Place of holding Assembly meetings - Standing Orders subject to OLPG & LLG. Interim Provisiop>
C>CONSTITUTIONAL LAW - Originating process discretion - O. 4. R 3 (1) & (2) - mode of proceedings appropriate to circumstances.
On an application for declaratory andraining orders declaring Plng Plaintiff as the properly elected Interim Deputy Governor and Interim Deputy Chairman of Enga Interim Provincial Government:
Held:
1. &ـ T60; That that the Plaintiff was duly elected by the Enga Interim Provincial Assembly on 28th June 1996 as the Interim Deputy Governor of Enga Province andhe Interim D Cm D Chaiof therim Prim Provincovincial Assembly of Enga Province and as d as such continues to hold such offices;
2. ـhat the Standing ding Orders of an Interim Provincial cial Government as adopted from the previous Provincial Government are subto therim sions of the OLPG & LLG and do not over-ride it;
3. < &160;  a; Thurt hri jurisdictidiction to consider compliance with Constitutional requirements as to convening of meetings of Assembly but not to consider comce wiandiners governhe conduct of such meetings.&ngs. #160; That That is, is, the decision to hold meetings or decide the procedures and conduct the daily operations of the running of the business of the Interim Assembly is an internal matter, which the Assembly can decide fself.
Cases CitedCited:
Paul Kipo v Rova Maha [1994] (Unreported Judgement) N1252 dated 18th August 1994
Rova Maha v Paul Kipo [1994] PNGLR 445
Gulf Provincial Government (in suspension) v Minister for Village Services [1994] PNGLR 435
Hagai Joshua & Ors v Aron Meya & Ors [1988-89] PNGLR 188
Statutes Cited:
Organic Law on Provincial Government and Local-level Governments of 1995 (as amended)
Public Service Management Act 1995 (as amended)
Enga Provincial Government Standing Orders (adopted as of 8/8/95)
Enga Provincial Government, Provincial Administrative Staff Act 1996
Enga Employment Authority (Conditions of Employment) Regulation 1988
National Constitution - S. 133 & 134
Counsel:
Mr L Henao Counsel for Plaintiff
Mr D Coyle & J Bray Counsels for Defendants
29 November 1996
AKURAM J: The plaintiff is ng amng amongst others the following orders by way of an Originating Summons filed on 20th August 1996 that:
1. ҈& A60; A deciodecion that the Second Defendant, Danley Tindiwi, ceases to hoto hold the offices of Interim Deputy Governor of Enga Province and Interiuty Can ofInterim Provincial Assembly of Enga Proa Provincevince as of 28 June 1996.
2. &160; ;ټ A decladeclaration tha Plae Plaintiff, Peter Ipatas, was duly elected by the Enga Interim Provincial Assembly on 28 June 1996 as the Interimty Gor of Province and as the Interim Deputy Chai Chairman rman of the Interim Provincial Assembly ofly of Enga Province and as such continues to hold the two offices.
3. ; A60orde that the Second cond Defendant, Danley Tindiwi be restrained from holding himself out as the Interim Deputy Governor of Enga Province and as Interim Deputy Chairman of the Interim Pcial bly oa Province.
Thep>The fact 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:
| 4/4/96 | Meeting of Interim Provincial Assembly appointing 1st and 2nd of May 1996 as dates for next meeting | |
| 2 | 2/5/96 | Meeting of Interim Assembly appointing 30th May 1996 as date for next meeting |
| 3 | 23/5/96 | Circular Instruction No 11/96 by Tindiwi issued to all Assembly members, Chairman of Committees and Acting Administrator on the subjects
of PEC and Assembly meetings being deferred this month to July |
| 4.1 | 30/5/96 | Meeting of Assembly held despite above Toksave or Circular No 11/96 |
| 4.2 | 30/5/96 | Swearing in of Jacob Kambilyo as Chairman of Health Committee and Ipatas as Chairman of Education Committee |
| 5.1 | 3/6/96 | Termination Notice by Tindiwi to Neakson effective as of 10/6/96 |
| 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 30/5/96 |
| 6 | 6/6/96 | Letter from Acting Administrator to Acting Governor (Tindiwi) that Tindiwi’s dismissal of A Neakson is invalid as Contrary to
Public Service Management Act 1996 and Provincial Administrative Staff Act 1986. (S. 19 (2)) |
| 7 | 10/6/96 | Termination Notice Served On To Ainu Neakson - Assembly Clerk from Tindiwi |
| 8 | 25/6/96 | Circular Instructions to all Interim Provincial Assembly members through Radio that, “Special Enga Interim Assembly meeting
is on 28/6/96”, to be announced on radio on 25th & 26th June 1996, from Ipatas |
| 9 | 26/6/96 | Letter from Tindiwi to Provincial Police Commander Enga that a proposed meeting of Assembly was to be held on 28/6/96 is illegal |
| 10 | 27/6/96 | Letter by Tindiwi to Administrator Talyaga of the unauthorised meeting by Peter Ipatas and provision of vehicles to travel to Hagen |
These above I consider to be the main events surrounding the resolution to dismiss Tindiwi out of office and resolution to elect IPATAS into office of Deputy Governor and Deputy Interim Assembly Chairman and PEC Chairman.
The main issues raised in the case are:
1. & Whether the Enga Interim Prim Provincial Assembly Meeting of the 28th June 1996 was properly convened under the Organic Law on Provincial Government and Local Level Governments (OLPG &aLG).
2.& If y If yes, was, was Danley Tindiwi, the Premier of the previous Provincial Government of Enga properly died fre offof In Deputy Governor and Interim Deputy Chairman of Enga Interim erim ProviProvincialncial Gove Government and Enga Interim Provincial Assembly.
3. &##160;; I60yes, yes, was Pwas Peter Ipatas properly elected into the offices of Interim Deputy Governor and Interim Deputy Chairman of the Interim Provincial Government and Assembly of Enga.
However in the light of the evidence and submissions I have arranged them into three main areas:
(a) erethe uth of en Originatiinating Summons is an abuse of the process;
(b) ҈ The pere peripheral issued; and
(c) ;ټis
(b) & alesrraareraare:
>
(i) Te0; Termination of Neaksoeakson as Interim Assembly Clerk and appointing Tias AcClerkssembly, raised by the Defence.
>
(ii)&(ii) #160;҈ Pl0; Place of Holding Ass mbly meetings, raised by the Defence.
(iii) ; Heningi’8217;s auth authority over Ainu Neakson. This issue is raby the Plae Plaintiff in response to De No (p>
<ـ &##160; Real Issues:
(i) < 160; WhethWhemeer ng of 30of 30/5/96 was properly hep>
(ii) & Was notice to Tindiwi to i to resign within 14 days as s as of 30/5/96 proper and or sufficient n and gardea vote of no-confidence as under th system.
(iii) ټ I2 is suis suff suff sufficienicient nott notice, ice, was Tindiwi’s response a reaction to that notice.
(iv) ; No 3 is yeis yes, the, then was Tindiwi’s response sufficient to have a vote or resolution in his absence.
(v) ҈ Are thee the manner in whhch the meetings of 30/5/96 and 28/6/96 in compliance with OL on PG & LLG?
(vi) ـ Does the Stan Standing Orders as adopted sufficiently in compliance with OL o&Interim Provisionisions.
(vii) If No 6 is in affirmative what is the consequence.
DISCUSSION OF THUES
(a) ټ Abuse of Process
Defence Counsel submitted that this action d be y of of Summ Summons aons and nond not by Originating Summons. He argued that the originating Summons process is available only when (a) the sale 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,b) in which there is unlikenlikely to be a substantial dispute of fact.
This submission is misconceived because the whole issue and the facts surrounding this case is in fact dealing with the proper interpretation and or application of the Interim provisions of the Organic Law on Provincial Government and Local Level Government. The provisionInterim ProviProvincial Government are in “Part VI - Facilitative Provisions” and particularly in subdivision 3.C, sections 123 to 132. Sectio in fefines “I220;Interim period” to mean:
“The period on and from the date of coming into operation of Organic Law inrelation to all provinces other than Bougainville Province and the National onal 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, etc. of the Interim Provincial Government or Interim Provincial Executive Counsel for the purposes of allowing smooth transition from the old Provincial Government system to the new Provincial Government system. Once the Writs fong the nehe next general election are returned after coming into operation of the new Organic Law on Provincial Government and Local Level Government. So case ally disputing theg the operations of sections 123 to 3 to 132, especially 125 and whether the Standing Orders of previous Enga ncial Government as adopted on 8/8/95 at its first meeting ever apply at all. I am tham therefo the view view that the Originating Summons process in this proceedings is not an abuse of the process.
The second reason is that O. r. 4 R.3(1) & (2es Plaintiff a discretion as to the mode of proceedings apps appropriate to his circumstances. EC & Ors v PEA [1993] 993] PNGLR 264, where it is held:
“An abuse of the process of the court may arise where, in an application for a remedy uO 16 r 1 (1), a party can also obtain a declaration or inju injunction but does not do so and, subsequently, applies to obtain such an order by way of writ or originating summons in a separate proceeding. That would be an at to avoo avoid the requirements under O 16 and would, as well, constitute multiplicity of proceedings. It is not wise to indiche the circumstances that mount to abuse of the process of the court. This can can be develop a on a case by case basis.”
In the present cahe respondent did not apply for a remedy under O 16 R 1.. The onmedy sought was a de a declaration and, under the Rules, hechoose to proceed by originriginating summons under O 4 r 3. Our Rulrmit such an optionption. The tjudge distinguishe Enhe English rules from our Ruur Rules, in that we do not have an equivalent of the English O 5 r 3 (sic). Hcluded:
&#That itt it seems to me, me, points to the obligation to follow (iow (in UK) the O 53 judicial review procedure in the appropriate rights unublic law cases. Plainly, the m now before fore this this Court would be required by O 53 R 1 (1) (B) to be brought by way of judicial review... It may be thaO 4 originateinated process is intended to allow parties to seek a declaration of law prior to, and to avoid, litigation. But tnerality of O 4 r 3 pr 3 precludes any fixed interpretation that excludes the use of originating process, even when judicial review might be more appropriate. y case, O 16 r 9 indicatescates the discretion that remains in the Court to prevent proceedings failing simply because a party adopted an inappropriate procedure.”
This is what thintiff has done here. #160; Thisment also fails fils for this reason.
(b) ҈&<; P60; Peripheripheral Issues
Although I stated four (4) issues, there are basically two: (i) that of the purported termination of Ainu Neaksonnteriemblyk; and the other - (ii) Place of Holdinolding Assg Assemblyembly Meetings. I will deal with numii) fii) first. There are no prons in the the Standing Orders nor in the Interim provisions of the Organic Law on Provincial Government and Local Level Gment where the Assembly should hold its meetings.. The closest an get is in S in Stan Standing Order No 2 & 17.
Standing Order No 2 says:
“Calling of Meetings
The speaker shall, by notice given to each Member:
(a)ټ Call Call a meeting of the Assembly within 21 days of the return of the writs for a general election; and
(b) ټ Specifyecify the date and place of the meeting.” (Uining mine)
What What this means is that iin the discretion of the Speaker to appoint the time and place, etc., for the meeting of thof the Assembly. Itherefore an internal m fl m for the Speaker and the ashe assembly to decide. This is further emsed by S by Section 125 (8) of the Organic Law on Provinciaernment and Local Level Government.
Section 125 (8) (8) reads:
“The Interim Provincial Government shall determin own procedures, quorums anms and number of meetings.”
And section 15 (2) of the OLPG & LLG although not applicable during Interim period, furtheron cfirms this which will take effect after general elections in 1997. These two sections anndingnding Orders uphold the principle that courts are not to interfere in the internal operations of the Parliament, be it NatiParliament or Provincial Assembly as held in the cases of Gulf Provincial Government (insusinsuspension) v. Minister for Village Service [1994] PNGLR 435 and Paul Kipo v Rova Maha (reported judgement) No N1252 [1994], 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 and the rules made for the regulations and control of the business and meetings of the Assembly. They ade by and on the aute authority of the Assembly itself. Accord, where questions arns arise as to whether the Standing Orders have been complied with or nhe Assembly will decide. Simply put,he majority rity rity 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 available to the Assembly. The majoritys...”
So it is not imperative that the Provincial Assembly meeting should place at a particular place. The OLmp; LLG is silent onnt on this. The same trme 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. hrase220;subject to the Cohe Constitution”, by virtueirtue of section 136A (Application of Other Laws) would mean subject to thanic Law on Provincial Government and Local Level Government. Sn 136A reads:
:“Where:
(a) &##160;; Any Orgy Organic Lnic Law (other than this Organic Law), Act or subordinate enactment; or
(b) ټ&#Any iment ornt cumdocument whether made or executed, contains a reference, express or s or impliimplied, to:
(c) & rovisf; oo
(d)p>(d) &#an office established byed byed by or u or under, the repealed laws,
that ence , exchere the context otherwise requires, be read as a reference to the equi equivalenvalent prot provision or office under this Organic Law.” (ems added)
Therefoerefore under Standing Order 17, the speaker is the Governor who is the Chairman of the Provincial Assembd whatever days or times and place of meetings he determine is subject to the Interim proviprovisions of the Organic Law. And be of the fact that cuat current Provincial Government is only an Interim Provincial Government governed only by the Interim provs under Division 3C of Part VI, section 125 (8) would apply and over-ride Order 17. T60; That ider 17 need notd not be complied with during the Interim period pursuant to section 123 (1) which reads:
“There is established in each province an im Provincial Government for the purposes of governing the 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 intents andose oose of the Interim provisions of the OLPG & LLG coing from section 123 to section 132 is not to disturb, inte interfere nor interrupt the smooth flow of the new Provincial Government established and put into fnto full effect after the next general elections in 1997. In this re the Interim prom provisions of the Organic Law lay down the bare minimum procedures, administrative structure or framework for the interim functioning of the oion of the Provincial Government. I will return to thto this argument when I deal with section 125 (5A) on the OLPG & LLG later.
PURPORTED TERMINATION OF CLERK OF ASSEMBLY, AINU NEAKSON BY ACTING GOVERNOR, DANLEY TINDIWI
The defens argued that the Clerk of k of Assembly was terminated as of 10/6/96 by a notice of letter dated 3/6/96. Their argument is tha Acti Acting Governor has power to terminate summarily the Clerk of Assembly. The defence did nint to whto which law goverrmination of the Clerk of Assembly by the Governor. Plaintiff referr to the Enhe Enga Enga Provincial Government, Provincial Adtrative Staff Act 1986. Defence arguat that Act Act Act is not applicable but the “Enga Employment Authority (ConditionEmployment) Regulation 1988 1988 apply which is authorised by section 25 of the Enga Provincial Government, Provincial Administrative Staff Act 1986. Defence submithat accordinording to section 23 (1) & (2) the Enga Employment Authority shall advise the Provincial Executive Council on positions in the Enga Department which are not in Provincial Secretariat to be controlled and supervised by PEC. That is why the ad passed ssed a resolution to effect the termination Notice by Acting Governor to Clerk of Assembly. As a consequence, Ainu Ne kson is no longer the Assembly Clerk and therefore not the proper person to take down the minutes of the meeting on 28/6/96.
Plaintiff on the other hand submits that the Acting Governor had no power to terminate Clerk of Assembly. So Mr Neakson wall employeployed as Interim Assembly Clerk under Enga Provincial Administrative Staff Act of 1988. 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 cont nued and remained as Interim Assembly Clerk until appointed as Assembly Clerk on 10th September 1996. This was the view held b Ethe Enga Provincial Admintor, Mr Talyaga and stated in a letter he wrote in responseponse to the termination notice by Tindiwi of Ainu Neakson as Assembly Cleated 6/6/96.
Section 82 (2) (Transfer of Officers) ors) of the Public Service (Management) Act, 1995 reads:
“(2) An officer who, immediatefy 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, section 69 (2), of that Act reads:
“Appointments to Offices in Provincial Governments and Local-Level Governments Secretariats, etc.
69(2) dures for selection, appoiappointment, promotion, transfer, discipline and termination of staff of a Provincial Government and Local Level Government Secretariat are those applicable to office the Public Service and shad shall be administered by the Provincial Administrator.”
These two sections mean two things:
(1) ҈ alat ffi officers pers 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. However, in the in period riod those officers of Provincial Secretariat are to be temporarily or casually employed against the positions they holdr old Acts until appointed. Thiwhat actually happened ened when Ainu Neakson was Inte Interim Clerk of Assembly until his appointment on 10th September 1996 despite being purportedly terminated by Tindiwi and gazetted in Enga Gazette.
(2) ҈& Only thly the Admi Administrator has power to select, appoint, promote, transfer, discipline and terminate Staff of ProvinGover and no one else. Not even the ncial Governovernor.
Therefore, the tthe total otal effect of all these is that Ainu Neakson, the Interim Clerk of Assembly of Enga Provincial Government, was never terminated as alleged by defence. And that any actiken by hiby him during the meeting of 28/6/96 was within his authority to do so. I am further sted in this this view by se 129 (1) of the Organic Law on Provincial Government under the laws repealed by section 120n 120 shall continue to provide the same ses to the Interim Provincial Government. The whole inle intenti Parf 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 Levelrnment system.
HavinHaving settled the two major peripheral issues, I now come to the main issues. Although I have classem asem as three, there is in fact one main issue and the other two are only follow up issues.
The main issue is whether eeting of 28th June 1996 was properly convened under the Organic Law on Provincial Governmeernment and Local Level Governments 1995. The two Subsections of section 125 relevant here are (5A) and (8) of the Organic law. I sem out as follows:
“(5A) An Interim Proal Assembly mbly may, by a two-thirds absolute majority vote, resolve that the Premier of tevious Provincial Government shall not continue to hold thed 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).
(Sub-section (5A) added by Amendment No 1 Law).
(8) The Interim Provincoal Gmeernment shall determine its own procedures, quorums and number of meetings.”
To determine this issue I have to first look at rocedin ca for ngs o Interim Provincialncial Asse Assembly.mbly.
Se
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 (Exhibit “F”) and adopted the Standing Orders of the previous Provincial Government. The relevannding Orders isrs is number 17 which I have mentioned above. But should be read in line line with section 132 of the OLPG & LLG which reads:
“132. Adoption omer Pcial and OLher Laer Laws
(1) ;ټ Subjectbject to thto this section, ion, notwithstanding the repeal of the lawerredn Section 120, the laws of a previous Provincial Government (other than the ConstConstitutiitution 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) &  refyrencerence in lain 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 correspondificesodiesblishedished unde under thir this Organic Law.
(3) ;ټ An Inte Interim Prim 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.&# phasis added)
)T
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 power to unilaterally over-rule or make decisions affecting the Interim Assembly. That is he alone cannot e cide 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 dance with the OLPG & Lmp; LLG.
I agree with the Plaintiff’s contention but not his argument that the Standing Orderadopted be followed in accordance with section 125 (8) of O of OLPG & LLG. I say this for try reasonsasons I said above and adopt those views in this argument. This is, the intention of the Parliament is to apply, in the Interim period, the provs of OLPG & LLG under Division 3.C of Part VI (Facilitailitative Provisions), section 123 to 132 only. Secondly, the decisi holdimeetings or decide thde the procedures and conduct the daily operations of the running of the business of the Interim Assembly internal matter. This is an are courts cann cannot enter. The authority tity that caat can decide is the Assembly itself. I the principle quoted abed above in Rova Maha v Paul Kipo [1994] PNGLR 445 at 448 that court has jurisdiction to consider cance constitutional real requirements as to convening of the meetings of the Provincial Assemblyembly, but not to consider compliance with Standing Orders governing the conduct of such meetings. Tovincial Assembly has jurs jurisdiction to govern its own proceedings. (See also Sections 133 &13p; 134 of National Constitutional). In this case, we have a mgeting held on 2nd of 996 of the Assembly which sich set 30th May 1996 as next date of Assembly meeting. On 23/5/96 Mr Tindiwi,Acti Acting Governor deferreting to a later day in July (Exhibit “D”).. The Ass members despite thte the deferral have convened a meeting th May 1996 whereby Plaintiff was appointed acting Chairmanirman and chaired the meeting according to section 125(5) & (5A).  Assembly then set 28th of h of June 1996 as next date of meeting to discuss the position of Tindiwi as Deputy Governor in the Provincial Government. There werer matters to be o be discussed but not stated in circular issued by the Chairman of meeting on 30th May 1996, Peter Ipatas, (Exhibit “G”). This cir specifically says says the subject of the meeting is “Special Enga Interim Provincial Assembly Meeting on 27th June 1996” and dated 25th June 1996. There was a letter by Ipon 3rd June 1996 to Acting ting Governor, Danley Tindiwi of the resolution No. 23/96 demanding Acting Governor to resign within 14 daom 30th May 1996. Mr Tindiwi warefore aware ware of the meeting of 28th June 1996 as 6 as he responded in letters to Provincial Police Commander of Enga on 26th June 1996 asking for assistance to stop unauthorised Assembly meetings (Exhibit “N”) and another letter to the Provincial Administrator, Mr Talyaga on 28th June 1996 to stop P Ipatas from holding such a meeting (Exhibit “M”) and to brief Acting Governor of what is going on between Administrator and Ipatas. I reproduce theseers belowbelow respectively:
Provincial Police Commander
Provincial Police Headquarters
PO Box 128
WEP
Dear Sir,
Police Assistance to Stop Unauthorised Assembly Meetings
>
I have heard that Mr Peter Ipatas has circulated a notice to Enga Assembly Members that a meeting of the Enga Interim Provincial Assembly will be held on the 28th June 1996. I have to advise Mr Peter eter Ipatas is not 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 July 1996. Thetes have been set by m by m as Acting Governor under the Organic Law on Provincial Govl Governments and Local Level Governments, section 15 (1) and the Assemblyding Orders, Section 17 (1) (2). Under these laws no s no one else is authorised to organise dates, times, and venues for Enga Interim Assembly meetings apart from myself.
I have set dates for the Budget priorities Committees meetings (3rd to 12th and PEC meetings (17 to 19to 19th July) to finalise and approve the Second Quarter EPG Budget Review. Hence, the Assembly meetasg has to take place on the dates aforementioned. I have circu my notice of e of meetings to all the Members of the respe committees and Assembly.
You are therefore instructed to ensure that this unauthorithorised meeting does not take place and tnauthorised persons do not not convene any such meetings. Thiso that peace and stabistability which we have enjoyed so far do not get unduly disturbed by any selfish power-hungry individuals.
For your compliance please.
HON DANLEY TINDIWI M>
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 Mount Hagen to hold an Assembly meeting without my knowledge. I understandbeing the Admi 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:
1. &##160;; I60ediamediately wely write to Mr Peter Ipatas to call off such a meeting forthwith; and
2. Brief me in person.00 pay ashat is going on between you and Mr Ipat Ipatas inas in my G my Government.
Your failure to do these two (2) things will mean ddienc insunatiolawfutructnd I will will have have to t to take aake appropppropriateriate 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 2une 1996, Mr N Mr Neakson checked the Assembly Hall and found that it was locked. This is quiterstandable inle in view of the tone of the above two letters and also the two factions existing at the time - one supporting Tinand another supporting Ipatas, according to the evidence in this case.
This explainslains why the meeting was held at Malya Hostel. These are the brief leadileading 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. Thee matters of internal onal operation of the Assembly (See M Rova v P Kipo (Supra) and cited at pages 10 and 11 of this judgment.
Section 125 (5A) of OLPG; LLG was added by amendment No 1 Law. It was an addi addition bs subsection 5 dealing with the Premier of the previous Provincial Government and says if the premier of previous Provincial Government does not decide to be the Deputy Governor and Deputy Chn of Interim Assembly withiwithin 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 did not provide for a situation as in this case where the Assembly wants to remove the Deputy Governor which section 125 (5A) is intended to solve. Sect25 (5A) requires that that the Assembly may, by a two-thirdolute majority vote, resolvesolve that the Premier of previous Provincial Government shall not continue to hold offices of Interim DeGovernor and Interim Deputyeputy Chairman and...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). Thisation should be distinistinguished from the situation with the case of HAGAI Joshua and Or v Aron Meya and Ors [1988-89] PNGLR 188 where the Provincial Contion ded for votes of no-confidence and procedures to s to be fobe followed. In that case section 28of ) of Morobe Constitution did not provide for the meaning of “two-thirds” and so the court applied schedule 1.2 (1) (a) of the National Constitutid said two-thirds must mean two-thirds of the seats in the the Provincial Assembly. In this cas I have said abid above, the intents and purpose of the National Parliament is not to apply the rigid rules and procedures until after the Interim Provincial Gment has smoothly moved onto the full Provincial Governmentnment status under the provisions of the OLPG & LLG.
Applying section 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-thiould be 14 members.bers. The me of 28th June 1996 h996 had 16 of those members who were present and voted unanimously to vote Deputy Governor out of office and the same numbers voted by resolution to vote into office of PetATAS as Deputy Governor.r. Tote had more than two-thio-thirds of either of Assembly members and or majority of Assembly members present.
For the above reasons I find that the meeting of 30th May 1996 was proper and also the meeting of 28th June 1996. I also find that the votitg out of office of Deputy Governor, D Tindiwi and subsequent voting of Peter IPATAS as Deputy Governor were proper.
I therefore make following declarations:
1. ـ That tai Plaintiff, Peter eter Ipatas, was duly elected by the Enga Interim Provincial Assembly on 28th June 1996 as the Interim Deputy Governor of Engvinceas therim y Chairman of the Interim Prom Provincivincial Asal Assemblsembly of Enga Province and as such continues to hold such offices.
2. ـ T6at the cost be inbe 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 too.
Lawyer for the Plaintiff: Henao Lawyers
Lawyer for the Defendant: Pato Lawyers
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URL: http://www.paclii.org/pg/cases/PGNC/1996/53.html