N8370(LT)

PAPUA NEW GUINEA
IN THE CONSTITUTIONAL OFFICE
HOLDERS RIGHTS TRIBUNAL

LT 1 of 2015

REFERENCE BY THE NATIONAL EXECUTIVE COUNCIL
OF A MATTER PURSUANT TO SECTION 5 ORGANIC LAW ON THE GUARANTEE OF THE RIGHTS AND INDEPENDENCE OF CONSTITUTIONAL OFFICE HOLDERS
TO THE TRIBUNAL
APPOINTED UNDER SECTION 4 AND 5 OF THAT LAW
AND
IN THE MATTER OF VELA KONIVARO,
CLERK OF THE NATIONAL PARLIAMENT

THE HONOURABLE JUSTICE DEREK HARTSHORN, ML, CHAIRMAN,
THE HONOURABLE JUSTICE MARTIN IPANG, MEMBER,
THE HONOURABLE JUSTICE SIR KINA BONA, KBE, MEMBER

Waigani:
2015: 3rd, 30th March; 1st April; 4th, 28th May; 13th, 14th, 15th, 20th July; 11th, 12th,         13th, 19th August; 7th, 8th, 9th September; 10th November.
2016: 27th, 28th June, 19th September

CONSTITUTIONAL OFFICE-HOLDERS RIGHTS TRIBUNAL – Organic Law on the Guarantee of Rights and Independence of Constitutional Office-Holders - Jurisdiction –Misbehaviour in office – Appointing Authority – National Executive Council – Removal from Office separate charges – Investigations by Appointing Authority 
PRACTICE AND PROCEDURE – Constitutional Office-holders Rights Tribunal separate from Leadership Tribunal – Charges laid by Appointing Authority – Appointing Authority refer to Chief Justice to appoint Tribunal – Charges relate to removal from office – No Admissions

Cases Cited
Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011

Counsel: 

Mr. S. Soi, for Mr. Konivaro
Mr. P. Kaluwin, for the Appointing Authority 

19th September, 2016

1.      BY THE TRIBUNAL: This is a decision on whether Mr. Vela Konivaro, the Clerk of the National Parliament, has been found guilty of the four charges brought against him for misbehaviour pursuant to s. 7 (b) Organic Law on the Guarantee of the Rights and Independence of Constitutional Office Holders (Organic Law).
Background
2. Mr. Konivaro was appointed as the Clerk of Parliament in May 2013 by the National Executive Council. On 7th August, 2014 he was suspended from office by the Appointing Authority, the National Executive Council (Appointing Authority). The suspension was published in the National Gazette No. G355 on 13th August, 2014.
3. The suspension stemmed from various allegations of improper conduct, mismanagement and other improprieties alleged against him by the Speaker of Parliament, Hon. Theo Zurenuoc MP. The allegations were brought to Mr. Konivaro’s notice by way of a letter dated 9th October, 2013. The letter contained 14 counts or allegations of improper conduct against him. The letter also advised Mr. Konivaro that after consultations with the Prime Minister it was agreed that it would be appropriate that he voluntarily resign as Clerk of Parliament and he was given fourteen days to respond.
4. On19th October, 2013 Mr. Konivaro responded to the allegations with a detailed reply in which he denied all of the allegations.
5. The Appointing Authority in a special meeting held on 7th August, 2014 decided to suspend Mr. Konivaro on full pay and for an investigation to be conducted against him. He was advised about the suspension on 15th August, 2014. Soon after, the Appointing Authority wrote to the Chief Justice and requested him to appoint a Constitutional Office-Holders Tribunal to investigate the allegations under the Organic Law.
6. On 23rd January 2015 the members of this Tribunal being three National Court Judges, were appointed by the Chief Justice pursuant to sections 4 and 5 Organic Law to constitute this Tribunal. The Tribunal commenced its hearings on 3rd March 2015.
7. At the start of the hearings counsel for Mr. Konivaro raised jurisdictional issues which were heard and dismissed. Various interlocutory applications made by Mr. Konivaro during the hearings were also dismissed.
8. In this regard we refer to the following statement by the Supreme Court in Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011 at [150 (b)]:

“After the tribunal has assumed jurisdiction, the tribunal must commence and complete the inquiry. Parties should allow the tribunal to complete the inquiry without unnecessary interference by parties: Paul Pora v Justice Sakora & two others constituting the Leadership Tribunal [1997] PNGLR 1.”
9. Counsel for the Appointing Authority presented a Reference against Mr. Konivaro which contained four charges. They are as follows:

i)	That between the 31st May 2013 and 18th September,2013 the Leader misbehaved in that he knowingly and without lawful authority made amendments to Bills passed by the National Parliament namely the Amendments to Sections 124 and 145 of the Constitution, thereby contravening Section 7 (b) Organic Law.
ii)	That on or about 18th June, 2013 the Leader misbehaved in that he knowingly approved and entered into a contract without authority, worth K2.95 million contrary to Section 47B of the Public Finance (Management) Act, thereby contravening Section 7(b) of the Organic Law.
iii)	That between the 26th July 2013 and the 15th October 2013 the Leader misbehaved in that he failed to distribute K25,000.00 monies in his control drawn from the National Parliament Operating Account to the intended recipients namely the Tauruba Health Centre, Tauruba Primary School and Tauruba Elementary School, thereby contravening Section 7(b) of the Organic Law.
iv)	That on or about the 23rd August, 2013 the Leader misbehaved in that he approved an Organisational and Management Structure in the Parliamentary Services without lawful authority contrary to Section 8(2) of the Parliamentary Services Act 1977, thereby contravening Section 7(b) of the Organic Law.
Consideration
10. In considering the four charges against Mr. Konivaro we are mindful of the statement at [150 (i)] in Re Public Prosecutor (supra) concerning the standard of proof:
“The standard of proof is settled in James Ekip Mopio [1981] PNGLR 416. The Court must be reasonably satisfied as to the truth of the allegations. The standard is above the civil standard but below the criminal standard of proof.”
11. We are also mindful of the Supreme Court’s statements in Re Public Prosecutor (supra) concerning “misbehaviour”. At [63]:

“The ordinary English meaning of the word misconduct has the same meaning as misbehaviour or unacceptable behaviour: see definition of misconduct in Oxford Advanced Learners Dictionary, Sixth Edition.”
Then at [67]:

“The words misbehaviour and inability are not defined by a constitutional law.  They must be given their ordinary meaning.  The ordinary meaning of these two words is beyond doubt.  In the context of leaders and COHs in particular, misbehaviour refers to conduct which may be regarded as wrong and unacceptable and offends against accepted standards of social, moral and ethical behaviour which may be established by practice or convention, or by a Code of Conduct.  The word misconduct in ordinary language has the same meaning as misbehaviour.  Examples of misbehaviour or misconduct include unacceptable conduct in the workplace or outside of the workplace which do not befit the office occupied by a COH and includes unethical behaviour amounting to breach of any Code of Conduct.  Such conduct need not involve an element of corruption or breach of any law as in the case of misconduct in office.  Acts of misbehaviour are many and varied and it is not practical to list them exhaustively.  They would include abusive behaviour and acts of insubordination.”
12. Counsel for the Appointing Authority, called six witnesses. They were called in relation to each of the four charges separately. We will refer to each witness’s evidence as we decide on each charge.
13. Counsel for Mr. Konivaro called two witnesses who gave evidence on oath in the witness box. They were Mr. Konivaro himself and Mr. Richard Whitchurch the Parliamentary Counsel. Witnesses Mr. Kala Aufa, Acting Clerk of Parliament and Mr. Marawa Koroba employed by the Human Resources section had their affidavits tendered. They were then subject to cross-examination. We will also deal with their evidence when discussing each charge.
14. In the first charge Mr. Konivaro is alleged to have amended or made changes to Bills that had come to him before they were to be placed before Parliament for enactment. To prove this allegation Counsel for the Appointing Authority called Mr. Hudson Ramatlap, the Commissioner for Revised Laws. It is his responsibility to prepare Bills which are then passed on to the office of Mr. Konivaro, and then to the Speaker’s office for checking before going before Parliament for consideration and possible enactment by Members of Parliament. It is alleged that before these Bills were placed before Members of Parliament, Mr. Konivaro amended parts of the Bills knowingly and without lawful authority, thereby contravening Section 7 (b) Organic Law.
15. Mr. Ramatlap gave evidence concerning amendments to three Acts requested by the Government. These are s. 273Criminal Code and sections 124 and 145 Constitution concerning votes of no confidence and the calling of Parliament. Mr. Ramatlap discussed these amendments in detail and said some of the wordings were changed by Mr. Konivaro. Mr. Konivaro gave evidence on oath and denied changing any of the proposed Bills that were to be put before Parliament. He said he neither had the time nor the opportunity to do so. He referred to Exhibit MFI 1 and said these were all passed by Parliament and are now laws of Papua New Guinea. He said that no Member of Parliament or anyone else complained of these amendments at that time. The Speaker who gave evidence, also acknowledged that he signed and approved the passing of the amendments in Parliament before they were sent to the Governor-General for certification. The documentary evidence tendered to the Tribunal does not disclose any evidence of amendment or tampering. There does not appear to us to be any evidence that the Bills were tampered with before they were passed and became Acts of Parliament. Further, there had not been any complaints made to the Clerk or Speaker at the time that the Bills were passed. There is no evidence or sufficient evidence for us to be satisfied that the Leader is guilty as alleged.
16. We therefore find Mr. Konivaro not guilty of the first Count.
17. Count Two of the allegations related to the Engagement of a Consultant in breach of the Public Finance (Management) Act. It is alleged that on 18th June, 2013 Mr. Konivaro misbehaved in that he knowingly approved and entered into a contract without authority, worth K2.9 million contrary to s. 47B Public Finance (Management) Act and thereby contravened s. 7(b) Organic Law.
18. A copy of a contract between a Consultant Mr. Joe Kudada and the National Parliament was tendered at the hearing. The contract was executed on 18th June, 2013 and was to be for a period of six years, commencing on 1st May, 2013. The Contract was to run parallel with Mr. Konivaro’s period of appointment as the Clerk of Parliament. From the contract details the remuneration package was as follows:
(a)	consultancy fees of K25,000.00 per month;
(b)	accommodation allowance of K16,000.00 per month;
(c)	paid monthly in advance.

19. The total package came to K41,000.00 per month. So in a calendar year the Consultant would receive K492,000.00 and for the six year period of the consultancy agreement he would receive a total of K2,952,000.00.
20. Counsel for the Appointing Authority submitted that:

a)	this excessive remuneration of about K2.9 million is in breach of s. 47B Public Finance (Management) Act and that Mr. Konivaro had neither the legal powers nor the authority to enter into such a contract;
b)	under s. 47B Public Finance (Management) Act, Mr. Konivaro is only authorised to pre-commit to expenditure not exceeding K500,000.00 in respect of the procurement of goods and services;
c)	s. 21(5) Parliamentary Service Act 1997 states that tenders shall be invited and contracts let for…….. the supply of works and services, whose estimated cost exceed the prescribed amount of K300,000.00.
d)	Mr. Konivaro misbehaved in approving and executing a contract that he had no authority to execute.
21. Mr. Konivaro submitted that he had the authority to execute the consultancy contract under section 16 Parliamentary Service Act 1997. Section 16 refers to the appointment of Temporary and Casual Employees and is as follows: -

“16. Temporary and casual employees
(1) The Clerk may appoint temporary or casual employees as he thinks necessary for the purpose of the Service.
(2) Employees appointed under subsection (1) shall be employed on such terms and conditions as the Clerk determines.”

22. In our view s. 16 refers to Temporary and Casual employees in the form of secretaries, security personnel and gardeners etc. who are paid an allowance fixed by the Clerk. These are casual labourers who are there for menial employment. We are not of the view that it was the intention that s.16 should be used to facilitate and enter employment contracts for over K300,000.00 or K500,000.00. Such contracts, especially those for consultants in the Public Service, should be approved through the Department of Personal Management. That Department decides the contract, dates and remuneration if the amounts exceed those prescribed in the legislation concerning Parliamentary Services. 
23. Any contract exceeding K300,000.00 must go to the Supply and Tenders Board of the Parliament. Section 21(2) Parliamentary Service Act 1997 allows for the establishment of the Service’s Supply and Tenders Board.
24. If Mr. Konivaro has the legal powers and authority to execute the contract then why was he advised by the Parliamentary Counsel that it was not valid? Was this because Mr. Whitchurch realised that the Leader had exceeded his powers and that he was not entitled to execute the contract as it was? Why was the contract then changed to a period of one year instead of six years and why was the amount of remuneration reduced to K300,000.00 if Mr. Konivaro has the powers and authority that he submits that he has?
25. It is clear from the evidence in our view that Mr. Whitchurch realised that the contract was invalid because it was executed without authority as it exceeded the limits imposed by s. 21(5) Parliamentary Service Act 1997 and s.47B Public (Finance) Management Act. That is why he advised Mr. Konivaro to change the terms and conditions of the contract to come within the requirements of the two sections in the two Acts as outlined above.
26. We are satisfied that Mr. Konivaro engaged in conduct for which he did not have the requisite authority and that this constitutes misbehaviour for the purposes of s. 7(b) Organic Law.
27. Accordingly we find Mr. Konivaro guilty of Allegation 2.
28. Count Three of the Charges relates to a failure to distribute public funds totalling the sum of K25,000.00 and is as follows:

“THAT between the 26th July, 2013 and the 15th October, 2013 the Leader misbehaved IN THAT he failed to distribute Twenty Five Thousand (K25,000.00) monies in his control drawn from the National Parliament Operating Account to the intending recipients namely the Tauruba Health Centre, the Tauruba Primary School and the Tauruba Elementary School.
THEREBY contravening Section 7(b) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office –Holders.”

29. The facts relating to this charge were that on 26th July, 2013 at a party at Mr. Konivaro’s village to celebrate his appointment as the Clerk of Parliament, the Speaker who was invited as the Guest of Honour, made a commitment of K25, 000.00 to the abovenamed recipients. Mr. Konivaro claims that at the same time he also made a commitment of K20,000.00.
30. Mr. Basil Kambuliagen was called as a witness and gave evidence that at that time he was the Executive Officer to Mr. Konivaro. He said that on 31st July, 2013 he collected a cheque valued at K45,000.00 from the Accounts of the National Parliament. The cheque was made out to him in his name and for him to cash it and then pass it on to Mr. Konivaro who would then pass it on to the Tuaruba village people as per the Speaker’s commitment made on 26th July, 2013 at Tauruba village. He further stated that he cashed the cheque and gave all the cash totalling K45,000.00 to Mr. Konivaro. He did not know what happened to the cash until 15th October, 2013 when Mr. Konivaro gave him K45,000.00 in cash and instructed him to deposit the cash into the National Parliament Operating Account. He said he deposited the K45,000.00 cash into the abovementioned account as instructed.
31. In his affidavit Basil Kambuliagen attached as Exhibit “A” the following documents:
•	Minute to Clerk of Parliament
•	Requisition for Expenditure – Tauruba Health Centre (K10,000.00), Tauruba Primary School(K10,000.00), Tauruba Elementary School (K5,000.00) – Total of K25,000.00
•	General Expenses Form – Speakers Commitment (Health Centre) – K10,000.00
•	General Expenses Form – Speakers Commitment (Primary School) – K10,000.00
•	General Expenses Form – Speakers Commitment (Elementary School) – K5,000.00
     Exhibit “B” is the deposit slip of K45,000. 00
32. From the evidence of Mr. Whitchurch, he stated that Mr. Konivaro is able to make commitments in his own right as the Clerk of Parliament. Mr. Whitchurch however, could not refer to any legislation that permitted this. He only supported his statement by stating that other Clerks of Parliament had done it before. Whether other Clerks of Parliament had done it before does not justify Mr. Konivaro making commitments to be paid for out of Parliament funds. Parliamentary funds are public funds and must be treated as such. They are not to be spent at the whim of Mr. Konivaro merely because others had engaged in such behaviour in earlier times.
33. Further, documents outlined in Exhibit “A” from the Affidavit of Basil Kambuliagen only relate to the commitments made by the Speaker to the value of K25,000.00. The question to be asked is why was the cheque made payable to the witness valued at K45,000.00? There was no documentation in relation to the preparation of a cheque valued at K45,000.00. 
34. From the evidence, the extra K20,000.00 was from instructions given by Mr. Konivaro. If as Mr. Konivaro claims and as Mr. Whitchurch supports, that he had a legal right to make such a commitment, why was this not documented in Exhibit “A”? 
35. Moreover, Mr. Konivaro’s evidence is that the cash of K45,000.00 was kept in his draw for two and a half months. If as he claims that the payments could not be made because schools and a health centre at Tauruba village had no bank accounts and that there were arguments between the villagers as to who was to receive the money and how to spend it, why did he not advise the Speaker and return the money immediately. It is the case that it was only when the investigation against Mr. Konivaro was instigated and a letter asking him to resign was sent to him on 9th October, 2013 that he gave the cash to his Executive officer to deposit it on 15th October, 2013. We do not believe that the cash of K45,000.00 sat in his office drawer for two and a half months. We are of the view that the money was used for his own purposes and that was why it took him time to replace it. If the money was in the draw he would have deposited it immediately when he received the letter of resignation. It took him six days after receiving the letter to deposit the cash. In our view Mr. Konivaro used the cash for his own purposes and only repaid it when he realised it was being investigated. In any event we are of the view that he failed to distribute public funds.
36. We are satisfied that Mr. Konivaro engaged in conduct that was wrong and unacceptable and which does not befit an office occupied by a Constitutional Office Holder. This constitutes misbehaviour for the purposes of s. 7(b) Organic Law.
37. Accordingly we find the Leader guilty of allegation 3.
38. Allegation 4 states: 
“THAT on or about the 23rd August, 2013 the Leader misbehaved
 IN THAT he approved an Organisational and Management Structure in the Parliamentary Services without lawful authority contrary to Section 8(2) of the Parliamentary Services Act 1977.
THEREBY contravening Section 7(b) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-Holders.”
39. In this allegation it was stated that the Leader decided, whether with or without the Speakers endorsement, to embark on a restructure of the whole Organisation and Management Structure of the Parliamentary Services. Thus on the 27th August, 2013 he sent out a circular instruction entitled “APPROVED ORGANISATIONAL and MANAGEMENT STRUCTURE – PARLIAMENTARY SERVICES” to the Acting Deputy Clerk, all Divisional Heads and Officers of the Parliamentary Services. In the circular he stated that:
This circular instruction is intended to inform all staff of the APPROVED revised organisation and management structure of the Parliamentary Services. Please note the following:
A.	I have exercised my authority as the Administrative Head of the Parliamentary Services to review and approvethe revised organisation and management structure on the 23rd August, 2013 and that has become effective as of the date of the new structure implementation.
B.	It is also important to note that my approval of the new organisation and management structure and the new Parliamentary pay structure supersedes the existing Parliamentary Services structure including the Public Service pay structure.
40. A copy of the above circular was dropped off at the Speaker’s residence on the eve of his departure to India and South Africa. On or about 9th September upon his return Mr. Konivaro received a letter from the Parliamentary Counsel, Mr. Whitchurch advising the Leader that he did not have the authority to approve the structure. (Exhibit 1). On the same date Mr. Konivaro rescinded his decision of 27th August 2013.
41. On the 10th September 2013, the Speaker sent out a circular instruction advising Mr. Konivaro to rescind his decision and for all Divisional heads and all officers of the Parliamentary Services not to effect the changes until a legitimate approval is given by him. (Exhibit K).
42. Section 8 Parliamentary Service Act 1997 says as follows:

“8.	Creation of offices.

(1)	This Section does not apply to the office of the Clerk.
(2)	The Speaker, on a recommendation of the Clerk and subject to any general directions from the Head of State, acting on advice, may—
(a)	create such number of offices in the Service to ensure the efficient operation of the Service; and
(b)	abolish, reclassify and change the designation of offices in the Service.”
43. Reading from the above it is quite clear that it is the Speaker who has the authority to create, abolish or reclassify the designation of offices from the recommendation of the Clerk.
44. In this case Mr. Konivaro did revise and make changes to the existing Organisational and Management Structure with the assistance of the Divisional Heads. But instead of referring the draft to the Speaker as recommendations for the Speaker’s approval and implementation, Mr. Konivaro went ahead and instructed everyone to implement the new structure as approved by him on 23rd August, 2013. On 9th September, 2013 however, upon being advised by Mr. Whitchurch that he did not have the requisite authority he rescinded the approval instructions. Counsel for Mr. Konivaro submitted that Mr. Konivaro has the authority as the Administrative Head of the Parliamentary Services to review and approve the revised Organisational and Management Structure. We disagree. It is clear in our view that Mr. Konivaro rescinded his decision as he realised he did not have the requisite authority. Mr. Konivaro is a lawyer by profession and should know what is expected of him, of his powers and authority and the extent of those powers. It was only fortunate for him that others realised his errors and advised him accordingly.
46. It is our view that the actions of Mr Konivaro did breach Section 8(2) Parliamentary Services Act. Further, we are satisfied that Mr. Konivaro engaged in conduct for which he did not have the requisite authority and that this constitutes misbehaviour for the purposes of s. 7 (b) Organic Law.
47. We therefore find Mr. Konivaro guilty of Allegation 4.
48. Counsel for Mr. Konivaro in his submissions gave a detailed argument about the definitions of the terms “misbehaviour” and “misconduct” and argued that the decision in the Supreme Court case of Re Public Prosecutor(supra)must be challenged as it does not give a true and proper meaning to the term “misbehave” as is required in this case.
49. It is not for this Tribunal to challenge a decision of the Supreme Court. This Tribunal is bound to follow the decisions of a Superior Court.
50. Further, as Re Public Prosecutor (supra) has dealt with the question of how “misbehaviour” is to be interpreted, we reject the submission that this Tribunal should refer this matter on that issue to the Supreme Court for a further interpretation as submitted.
Summary of Findings
51. In respect of the four charges of misbehaviour brought by the Appointing Authority against Mr. Konivaro the Tribunal finds Mr. Konivaro:
a)	not guilty of the first charge;
b)	guilty of the second, third and fourth charges of misbehaviour.
52. Prior to considering whether Mr. Konivaro should be removed from office the Tribunal will provide an opportunity for further submissions and/or evidence.
________________________________________________________________
Office of the Public Prosecutor:		 Lawyers for the Appointing Authority                 
Soi and Associate Lawyers: 		Lawyers for Vela Konivaro