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Miles v Central Provincial Government [2019] PGNC 132; N7853 (13 May 2019)

N7853

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (EP) NO. 2 of 2018

BETWEEN
STANLEY MILES, PATRICK BAWAI & WARI VELE
Plaintiffs

AND
CENTRAL PROVINCIAL GOVERNMENT
First Defendant

AND
DICKSON GUINA – SECRETARY DEPARTMENT OF PROVINCIAL & LOCAL-LEVEL GOVERNMENT AFFAIRS
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Makail, J
2019: 10^th & 13^th May

ELECTIONS – Local-level Government elections – Minister’s directive to Presidents to resign from elective public office to contest General election –Resignation of – Power of

STATUTORY INTERPRETATION – Requirement to resign to seek another elective public office – Expressed statutory provision for Presidents of Local-level Governments to resign to seek another elective public office – Absence of – Reliance on constitutional provisions – Constitution – Section 26(1)(d) & 27(1)&(4)

Cases cited:

Nil

Counsel:
Mr. A. Maribu, for Plaintiffs
Mr. M. Elkui, for First Defendant
No appearance, for Second and Third Defendants

JUDGMENT

13^th May, 2019

1. MAKAIL, J: This case brings up the question on whether Presidents of Local-level Governments who seek another elective public office must resign from office as President to do so. It is an important question because it will have an impact on the coming and future Local-level Government elections and it was expected that the defendants would be represented to assist the Court determine it. Despite this, only the first defendant was represented by its in-house counsel. The second and third defendants did not despite being served the originating process and supporting documents including the notice of trial: see affidavit of service of Malcom Retau filed 30^th April 2018, affidavit of service of plaintiffs’ counsel filed 28^th May 2018 and affidavit of service of plaintiffs’ counsel filed 9^th May 2019.

2. Based on the affidavits tendered by the parties, it is not disputed that the plaintiffs were Presidents of Local-level Governments in Central Province until they resigned pursuant to a directive by the Minister for Inter-Government Relations in a circular dated 28^th March 2017 to contest the General election in 2017. None of them were successful and returned to resume office only to be told that the office was occupied by someone else and turned away. Despite best efforts, they continue to remain out of office.

3. They commenced these proceedings to challenge the validity of the directive by the Minister and assert their right to hold office until the next Local-level Government election which they say will commence soon. They assert that the directive has no foundation in law and that the Minister acted without power to direct them to resign. They say that as elected leaders of the Local-level Government, they were not required to resign but did and now suffer from the illegal directive by the Minister.

4. They seek orders in the nature of declarations to assert their right to the office of President and for the defendants to facilitate their resumption as Presidents of their respective Local-level Governments.

5. While the first defendant does not contest the validity of the directive, it seeks to dismiss the proceedings on the following grounds:

(a) The plaintiffs failed to give notice of claim under Section 5 of the Claims By and Against the State Act, 1996.

(b) It is a wrong party to the proceedings.

(c) The plaintiffs have used a wrong mode of proceedings. They should have commenced an election petition.

(d) Lack of authority and consent by the plaintiffs to commence proceedings.

6. The first ground will be dismissed because the plaintiffs’ lawyers have filed an affidavit of counsel on 18^th April 2019 as proof of service of Section 5 notice on the State by leaving a copy of the letter to the Acting Solicitor General constituting the notice dated 2^nd October 2017 with the Senior Executive Assistant Mrs Betty Makis at the Office of the Solicitor General on 7^th Floor of Sir Buri Kidu Haus on 5^th October 2017 at 2:00 pm.

7. As to the second ground, the first and second defendants are sued in their capacity as implementing agencies of the Minister’s directive. For instance, it is not disputed that pursuant to the directive the first defendant has refused to allow the plaintiffs to resume office.

8. As to the ground on wrong mode of proceedings, the first defendant says that as the Minister’s directive was issued to Presidents and ward members to resign to contest the General election and they did and lost, the proper mode of proceedings to challenge the decision not to allow them to resume office is by way of an election petition.

9. However, according to Part XVIII of the Organic Law on National and Local-level Government Elections, Section 206, the validity of an election or return may be disputed by petition addressed to the National Court. In this case the plaintiffs are not aggrieved by the election or return of the General election but the refusal to allow them to resume office. This ground is misconceived and will be dismissed.

10. Finally, as to the ground on lack of authority and consent, this is not a case where the plaintiffs are suing in their representative capacity and must have the authority and consent of other plaintiffs to commence proceedings but rather they sue in their personal capacity and in a joint proceeding. This ground is misconceived and dismissed.

11. Turning to the substantive issue, it is worth noting that the Minister relied on Sections 26(1)(d) and 27(1) and (4) of the Constitution to issue the subject direction and assumed that in the event of resignation, a vacancy is created in the office of President by virtue of Section 30 of the Organic Law on Provincial Governments and Local-level Governments. The plaintiffs submit that these provisions are inapplicable. These provisions confer power on the Ombudsman Commission to ensure that the Presidents and ward members do not breach their duties as elected leaders. The first defendant concedes that the Minister lacked power to direct Presidents and ward members to resign before contesting the General election.

12. Given the concession by the first defendant, one thing must be made clear. Presidents are elected by electors in an election and not appointed. As elected leaders they hold office for the duration of the term of office, in this case, five years. If they seek another elective public office, there is no law expressly prohibiting them from doing so. Nor is there a law expressly requiring them to resign to seek another public office. If they need to be away from office for a long period of time, they may seek leave from the Local-level Government to do that pursuant to Section 30(1)(j) of the Organic Law on Provincial Governments and Local-level Governments. That is an option available which the defendants did not take up and will need no further remarks.

13. However, the Minister relied on the constitutional provisions of Sections 26(1)(d) and 27(1) and (4) as source of power to issue the subject directive. Section 26(1)(d) states that “The provisions of this Division apply to and in relation to - (d) members of Provincial Assemblies and Local-level Governments; and....”

14. Section 27(1) and (4) states:

“27. Responsibilities of office.

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not—

(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or

(b) to demean his office or position; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(3) It is the further duty of a person to whom this Division applies—

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.” (Emphasis added).

15. Putting aside whether the Minister or the second defendant may be considered an “other authority” under Section 27(4) in order to exercise jurisdiction over Presidents of Local-level Governments not to breach their duties as leaders, the issue is whether the Minister can direct them to resign to contest the General election. As to this question, it is clear that Section 27(1) and (4) does not say that a President who seeks another elective public office while in office as President must resign prior to seeking another elective public office. Neither do they say that where a President seeks another elective public office and fails is prohibited from resuming office.

16. It must then be the case that, as the plaintiffs submit, these provisions do not confer power on the Minister or the second defendant to direct Presidents and ward members to resign to seek another elective public office. On the contrary, they confer power on the Ombudsman Commission to ensure that the Presidents and ward members do not breach their duties as elected leaders.

17. It follows that the directive was without foundation in law and the Minister acted beyond his powers to direct the plaintiffs to resign prior to seeking elective public office. On the other hand, each of the plaintiffs was not obliged to resign from the office of President to contest the General election. They have a right to hold office until the next Local-level Government election. As they have been out of office, they further seek an order for loss of salaries and entitlements. The defence did not oppose the relief sought. They are entitled to this relief subject to calculation by the appropriate administrating authority.

18. For the foregoing reasons, except for the order sought in paragraph 2 of the originating summons, orders will be granted in favour of the plaintiffs in the following terms:

(a) A declaration that the plaintiffs are duly elected Local-level Government Presidents as followings:

(i) Stanley Miles, Cloudy Bay Local-level Government in the Central Province;

(ii) Patrick Bawai, Guari Local-level Government in the Central Province;

(iii) Wari Vele, Rigo Coast Local-level Government in the Central Province; and

(iv) that the plaintiffs have not resigned or have they been lawfully removed from elective office, and therefore, remain elected Members of the Central Provincial Assembly.

(b) A declaration that the plaintiffs are Members of the Central Provincial Assembly, and are therefore, entitled to be paid for their salaries and remunerations accordingly.

(c) A declaration that there is no requirement for the plaintiffs to resign from elective office to contest the National General elections in 2017.

(d) A declaration that the actions of the first defendant in preventing the plaintiffs from returning to office and performing their functions as elected Members of their respective Local-level Governments is unlawful and without legal basis.

(e) An order directing the first defendant to allow the plaintiff to enter their respective offices including Assembly meetings and District Development Authority meetings and perform their duties and functions as elected Members of the Provincial Assembly.

(f) An order directing the defendants to pay the plaintiffs’ lost salaries, emoluments and such other financial entitlements back-dated to May 2017.

(g) An order that the first defendant pay the plaintiffs’ legal costs, to be taxed, if not agreed.

(h) Time shall be abridged.

Judgment and orders accordingly.
________________________________________________________________
Valorem Attorneys: Lawyers for Plaintiffs
In-house Counsel : Lawyers for First Defendant