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Can Belden Namah be elected provincial Governor of West Sepik Province?

Commentary by Bryan Kramer 

The short answer is Yes?
The only issue is whether or not his appointment followed the strict procedures prescribed by law to make it legal.
I understand many are confused how can the former Opposition Leader and Open Member for Vanimo Green Electorate be appointed Governor a position normally elected by the people.
The people don't technically elect the Provincial Governor but actually elect the Regional or Provincial Member. The misunderstanding lies in the fact most consider the Governor position and Regional Member to be the same, when in fact they aren't.
There are 101 Members of Parliament made up of 89 Open and 22 Regional Members all elected by the people in their electorates to serve their interest or address their concerns in Parliament.
An electorate is an election boundary made up of people who are eligible (registered) voters that live within it. In PNG our Open and Regional Electorate boundaries are the same as our District and Provincial boundaries. Because we live in both in an Open and Province Electorate we vote for both our Open Member as well as our Regional or Provincial Member. The Open Member represents the voters within the District and Regional Member represents the voters throughout the whole Province.
In addition to this role Members of Parliament may also be appointed to hold a number of other positions which include Prime Minister, Deputy Prime Minister, Ministers of Government, Vice Minister, Speaker of Parliament, Leader of Opposition, Deputy Opposition Leader, Chairman of Special Parliamentarian Committees or Provincial Governors etc.
Some positions are only appointed by the majority vote of Parliament example, Prime Minister and Speaker of Parliament positions. Deputy Prime Minister and all Ministerial appointments including , Vice-Ministers are appointed by the Prime Minister. Each position will come with specific responsibilities including perks and privileges which a Member of Parliament has a duty to perform in addition to his role to represent the voters within his electorate.
Provincial Governor's position is typically reserved for Regional Members. Organic Law on Provincial & Local-Level Governments (section 17) states the Member of the National Parliament representing the Provincial Electorate shall be the Provincial Governor. However if a vacancy exists other members of the Provincial Assembly maybe appointed instead.
Provincial Assembly are elected members of Provincial Government
whose are made up of Regional Member, Open Members and Local-level Government Presidents from the Province . Other non-elected members include Provincial Women's and Church Representative who are appointed by Provincial Executive Council or PEC.
Provincial Assembly governs over the affairs of the Province much like a National Government governs the Country. Prime Minister is the head of National Government that makes executive decisions through National Executive Council or NEC chaired by Prime Minister. Other members of the Council include Deputy Prime Minister and 32 other Ministers who are also members of Parliament appointed by Prime Minister. While the Provincial Government makes its Executive decisions through PEC who are made up of Governor, Deputy Governor and other members of Provincial Assembly appointed by the Governor.
While the Prime Minister may be removed or disqualified from office so can Provincial Governor. If a Prime Minister is voted out of office he still remains a Member of Parliament representing the people in his electorate. Regional Member who is sworn in as Provincial Governor may also be voted out or disqualified from the position but still remains Regional Member in Parliament as well as a member of Provincial Assembly.
So how is a Provincial Governor disqualified from office?
Organic Law on Prov&LLG (ss19) states that Regional Member who is appointed to the Provincial Governor position vacates his office if he accepts an appointment to the following positions.
(a) Minister or a Vice-Minister in the National Government; or
(b) Speaker, Deputy Speaker of Parliament; or
(c) Leader or Deputy Leader of Opposition of Parliament
(d) Chairman of Permanent Parliamentary Committee for Public Works or Public Accounts
The reason being that it would be unreasonable to expect a person who is responsible for a Provincial Government to also hold other important positions in the National Government.
Grand Chief Sir Michael Somare who has been the elected Regional Member for East Sepik Province has always vacated the Provincial Governor's position when appointed Prime Minister by Parliament. In 2012 Leo Dion Regional Member for East New Britain Provincial Electorate vacated the Governor's position when he accepted the appointment to be Deputy Prime Minister and Minister for Inter Government Relations. Open Member for Kokopo Ereman Tobaining Jnr was appointed Governor in his place.
A further example in 2011 former Provincial Member and Governor for Madang Sir Arnold Armet resigned as Governor to be appointed Minister for Justice (Attorney General). James Gau Open Member of Rai Coast in Madang was appointed Governor in his place.
A Regional Member appointed Provincial Governor may also be disqualified from the position if he or she is voted out by the Provincial Assembly. Just like the Prime Minister may be voted out by majority vote of Parliament should they lose confidence in his leadership.
Governor also vacates his office if he or she voluntarily resigns; or becomes medically or mentally unfit (sick or ill) to carry-out his official duties; or otherwise disqualified by law or ceases to be a Member of Provincial Assembly or National Parliament.
So how is a Governor voted out or dismissed from Office?
Organic Law on Prov&LLG (ss20) states that the Governor or Deputy Governor maybe voted out of office in the following circumstances;
(1) If they deliberately and persistently frustrate or fail to comply with the resolutions (decisions) of the Provincial Assembly; or
(2) Disobey applicable laws, including the Constitution or Organic Law that applies to the Province; or
(3) Negligent (careless) in exercising their powers or performing their functions, duties and responsibilities; or
(4) Does an act that is or is likely to bring into disrepute or call into question the integrity of their office.
Then the Provincial Assembly may, by a two-thirds absolute majority (more than 66% of its members) vote out the Provincial Governor. However they must follow the strict process, giving notice by motion (formal written notice) signed by 1/4 (one quarter) of the members of Provincial Assembly with no less than one week's notice.
So what happens if there is vacancy in the Governor's position by dismissal or disqualification from office?
Organic Law on Prov&LLG (ss21) states that if a vacancy exists in Provincial Governor's position because of disqualification or dismissal from office the Provincial Assembly shall elect a Member of Parliament who is a member of the Provincial Assembly to the Provincial Governor's position.
If the other Members of Parliament also hold other positions (Minister etc) that would otherwise disqualify them from being Provincial Governor or decline to be Governor then Provincial Assembly may elect a Local-Level President who is a Member of Provincial Assembly to the position of Governor.
So what happens if Regional Member who vacates the Provincial Governor's position to take up an appointment of a Ministerial position but is then sacked or resigns from that position? Do they automatically assume the Governor's position?
The answer is no. They remain a member of the Provincial Assembly for the remaining term in office but may be re-appointed by the Assembly if a vacancy arises.
In the case of West Sepik Provincial Governor Position, the former Regional Member Akmat Mai who was elected at 2012 National General Election was removed from office in November 2013 after National Court voided his election finding him guilty of committing illegal practices during the election. In other words his disqualification took effect when he ceased to be a member of National Parliament. (as per section 19(1)(e))
He then challenged the decision in the Supreme Court seeking a judicial review of the National Court's ruling against him. While his appeal was being determined by Supreme Court a vacancy existed in the Provincial Governor's position. PNG Electoral Commission did not conduct a By-Election for the Regional Seat until the Supreme Court made a decision whether or not to overturn the National Court's ruling or uphold it. The decision was pending for one and half years during that time the Deputy Governor was acting as Governor.
In consideration of the passage of time in January 2015 West Sepik Provincial Assembly then sought to appoint a new Governor that resulted in a dispute and physical confrontation outside the Provincial chambers. In response former Governor Akmat Mai filed an urgent application in the Supreme Court to stay (stop) the members of Provincial Assembly from appointing a new Governor until his Supreme Court matter was first determined. A question arose whether Supreme Court had any such powers because technically there was a vacancy in the Governor's position and there was no legislation (laws) that prohibited the vacancy from being filled, unlike where a Member of Parliament who is convicted of a criminal offence if he appeals his conviction then his disqualification is suspended until his appeal is determined.
E.g Paul Tiesnten MP for Pomio Open was convicted and imprisoned for misappropriation in February 2014. Section 103(3)(e) of Constitution states a Member of Parliament who is convicted (found guilty) of a serious criminal offence is disqualified from office. However Section 103(4) states if he appeals his conviction then his disqualification is suspended and he remains a Member of Parliament until his appeal is determined. So although Tiensten was convicted and sentenced to prison in February 2014 it wasn't until his appeal was dismissed in December 2014 he was disqualified from remaining a Member of Parliament and PNG Electoral Commission announced a By-Election for his seat.
In contrast a person dismissed from office by the Court of Disputed Returns and his election voided there is no legislation (laws) that state their disqualification is suspended pending their appeal.
Due to this legal uncertainty the West Sepik Provincial Assembly decided to wait until the Supreme Court handed down its decision on former Governor's appeal.
On 30th March 2015 Supreme Court dismissed the former Governor Mai's appeal (judicial review) and upheld the National Court's earlier ruling voiding his election. PNG Electoral Commission then announced a By-Election for West Sepik Provincial Seat would be held in May 2015 subject to funding.
The fact that there was no longer any legal issue pending the West Sepik Provincial Assembly (13 members) convened on Wednesday 22nd April 2015 and elected Belden Namah Member of Vanimo Green Open Electorate as the new Provincial Governor for West Sepik Province.
Following his election the Deputy Prime Minister and Minister responsible Provincial & Local-Level Government Affairs Leo Dion announced his office did not recognise Namah's appointment as Provincial Governor. He said he was studying documents alleging that Namah "hijacked and abused the legitimate and democratic process of the election of a provincial governor."
Deputy Governor and acting Governor Paul Nengai had complained in a letter to Dion that there was a total disregard of the legal and proper process of parliamentary election by Namah, who did not have respect and regards for rule and process of law and parliamentary processes.
In the recent case in the dispute over Oro Provincial Governor, Member of Ijivati Open David Arore and Member for Sohoe Open Deliah Gore purportedly lead the motion to vote out Oro Provincial Governor Juff. Juffa challenged his removal in the National Court on the grounds it was unlawful.
In the end National Court Justice Kandakasi ruled that the purported meeting of the Oro Provincial Assembly convened by David Arore, Member for Ijivitari together with certain other persons including a number of LLG presidents on 28 October 2014 attempting to remove Juffa, as Governor was illegal. Because they breached strict requirements on removal of a provincial governor prescribed by the Organic Law on Provincial and Local Level Governments, the Provincial Governments Administration Act and the Standing Orders of the Oro Provincial Assembly. The Court found that Arore was not a member of Provincial Assembly because he was yet to be properly sworn in at Provincial Assembly meeting and further he had not attended any meetings of the Oro Provincial Assembly since the 2012 National General Elections.
So the central issue whether Belden Namah is legitimately appointed Governor of West Sepik Province will come down to whether the West Sepik Provincial Assembly complied with the strict requirements prescribed by the Organic Law on Provincial and Local Level Governments (ss.21) electing the Provincial Governor in the event of a vacancy.
The specific issues that will be considered are;
(1) Was Namah a member of Provincial Assembly when he was appointed Governor. In that was he previously properly sworn in at a Provincial Assembly meeting and did he attend subsequent meetings thereafter.
(2) Was due and proper notice of the meeting given to other members of the Assembly to elect a new Governor.
(3) Did the meeting comply with the standing orders of Provincial Assembly (meeting protocols) including the appointment of chairman in the absence of the Acting and Deputy Governor.
(4) Was there sufficient quorum (more than 50% of Provincial Assembly Members in attendance)
(5) Did the majority of the Provincial Assembly vote in favour of Namah as Provincial Governor.
(6) Did the members vote at their own free will or were they induced or intimidated during the process.
If the answer to any of the above questions are in the negative (no) then Namah's election to Governor if challenged in Court may be deemed illegal and to no legal effect as was the case in Oro Provincial Governor's dispute.
Assuming Namah's election as Provincial Governor complied with the strict requirements prescribed by the Organic Law and his election was lawful, the next issue is what will happen following the election of a new Regional Member in the coming By-Election for West Sepik Provincial Seat?
The law is not clear on this issue, it is only clear when a Provincial Governor vacates his office because he is voted out or takes up an Ministerial appointment etc or he voluntarily resigns from being Governor then he continues to hold office as a member of the Assembly. He is eligible to be re-appointed as, but does not automatically become, the Provincial Governor during the balance of his term of office in the Assembly. (ss 19(3))
In principle if he made the decision to vacate his office or was lawfully voted out it would be unjust for him to be automatically re-appointed to the position he willingly gave up in first place unless the members decided to vote him back in.
However the law does not state what happens in the event a new Governor is appointed after the former is removed from office and following a By-Election a new Regional Member is elected.
Does he automatically assume the position of Provincial Governor by relying on Section 17 of Organic Law or does the incumbent (Namah) continue on as Governor as no vacancy exists.
In such circumstances its referred to as a gap in the law. Where the legislature who drafted the Organic Law did not anticipate such circumstances would arise and failed to make provision (laws) for it.
If Namah decides to vacate Governor's position after the election of the new Regional Governor of West Sepik Province there will be no issue.
However if chooses to continue in office then the new Regional Member has one of two options
(1) If he or she has the majority support of the Members of Provincial Assembly then move a motion to vote out Namah and be appointed to the position; or
(2) Take the matter to Court seeking declaratory orders that Namah vacate the office.
In my opinion the National Court may exercise its inherit powers under Section 155(4) of Constitution to do justice in the circumstances and rule that new Regional Member by right (section 17) assumes the position of Governor taking into account he/she did not voluntarily vacate the seat in the first place. Namah would not be prejudice (greatly affected) by the decision taking into account he is an Open Member and not Regional Member.

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