Papua New Guinea Law Reports - 1978
[1978] PNGLR 460
SC140
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
CONSTITUTIONAL REFERENCE NO. 1 OF 1978
IN THE MATTER OF A REFERENCE BY ANDREW BRAY CAMERON WILSON A JUSTICE OF THE NATIONAL COURT PURSUANT TO S. 18 OF THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA
AND IN THE MATTER OF THE TRIBUNAL ESTABLISHED UNDER S. 27 OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP
AND IN THE MATTER OF LEO ROBERT MORGAN
Waigani
Prentice CJ Saldanha Andrew JJ
31 October 1978
30 November 1978
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Leadership Code - “Heads of Departments” - Applicability to acting temporary and substantive appointees - Constitution s. 26(1), s. 27[dclxiv]1.
STATE SERVICES - Public service - Leadership Code - “Heads of Departments” - Applicability to acting temporary and substantive appointees - Constitution s. 26(1), s. 27[dclxv]2.
A person appointed by virtue of the powers conferred by s. 193(3) of the Constitution of the Independent State of Papua New Guinea and s. 132 of the Public Service (Interim Arrangements) Act 1973, and all other enabling powers, to fill a vacancy in the office of Secretary, Department of Works and Supply, for a period of six (6) months is a head of Department of the National Public Service within the meaning of s. 26(1) of the Constitution, to whom the provisions of Div. 2 of the Constitution (Leadership Code) apply.
The use of the words “heads of Departments” in s. 26(1)(f) of the Constitution is to be read as encompassing the de facto head, the man at the pinnacle or apex of the Department, and it makes no difference whether the head of a Government Department holds an acting, temporary or substantive appointment: they are all persons to whom the Leadership Code applies.
Reference
This was a reference to the Supreme Court pursuant to s. 18 of the Constitution, which provides that where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal other than the Supreme Court, the Court or Tribunal, shall, ... refer the matter to the Supreme Court. The question was referred by a Judge of the National Court sitting as a Tribunal appointed under s. 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership. The question referred appears at the beginning of the reasons for judgment hereunder.
Counsel
K. B. Egan, to argue the affirmative case.
B. D. Brunton, and J Gawi, to argue the negative case.
Cur. adv. vult.
30 November 1978
PRENTICE CJ SALDANHA ANDREW JJ: Wilson J, a judge of the National Court, has referred to this court pursuant to s. 18(2) of the Constitution, the following two questions:
“1.      Whether a person, appointed by virtue of the powers conferred by s. 193(3) of the Constitution and s. 132 of the Public Service (Interim Arrangements) Act 1973 and all other enabling powers to fill a vacancy in the office of Secretary, Department of Works and Supply, for a period of six (6) months is a head of Department of the National Public Service within the meaning of s. 26(1) of the Constitution to whom the provisions of Div. 2 — Leadership Code apply and is in relation.
2.       Whether the effect of s. 26(4) of the Constitution which provides:
“In the event of a doubt as to whether a person is a person to whom this Division applies, the decision of the Ombudsman Commission is final.”
precludes the National Court from issuing an order nisi for a writ of certiorari to remove into the Supreme Court a certain determination and recommendation made by a Tribunal established under s. 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership.”
The reference came to be made in the following circumstances.
An allegation by the Ombudsman Commission that Leo Morgan, the Secretary of the Department of Works and Supply, had been guilty of misconduct in office was referred to a Tribunal appointed under s. 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership (the Leadership Code).
The Tribunal found that Leo Morgan had been guilty of misconduct in office and recommended that he be dismissed from office.
Mr. Morgan made an application to the National Court for the issue of an order nisi for a writ of certiorari to remove into the Supreme Court the determination and recommendation of the Tribunal with a view to their being quashed.
At the hearing before the Tribunal, counsel for Mr. Morgan raised the preliminary point that the Leadership Code did not apply to him on the ground that he had been appointed only “Acting” Head of a Government department. The Tribunal made the following finding:
“The tribunal is satisfied that the appointment of Mr. Morgan to fill the vacancy in the office of Secretary of the Department of Works and Supply for a period of six months from 11th November, 1977 was a substantive appointment to the office of Departmental Head for that period and that therefore he was from that date onwards subject to the Leadership Code.”
Mr. Morgan’s appointment was made under s. 132 of the Public Service (Interim Arrangements) Act 1973 (the “Act”) which provides as follows:
“132.   ACTING APPOINTMENTS
(1)      Where a Department (sic) Head is absent from his office or unable to perform the duties of his office, or when there is a vacancy in an office of Departmental Head, the Administrator in Council may if he thinks fit, appoint another officer to act in the place of the officer during his absence or inability, or may appoint another officer to fill the vacancy temporarily.”
Section 132 is headed ACTING APPOINTMENTS, and the notice of Mr. Morgan’s appointment in the National Gazette, No. G92 dated 11th November, 1977, is headed APPOINTMENT OF ACTING DEPARTMENTAL HEAD, presumably following the wording of the heading of s. 132. He was appointed “to fill a vacancy in the office of Secretary, Department of Works and Supply for a period of six months”. However, it is our view that Morgan’s appointment was not an acting appointment. Section 132(1) postulates two contingencies; the first when a Departmental Head is absent from his office because he is on leave or on duty abroad or unable to perform the duties of his office owing to illness, and the second when there is a vacancy that needs to be filled temporarily. In the first case “the Administrator in Council (now the Governor-General) may appoint another officer to act in the place of the officer during his absence or inability”. And in the case of the second contingency, he “may appoint another officer to fill the vacancy temporarily”. (Emphasis ours.) The heading to s. 132 can be ignored. “The heading or head-notes to the various sections of a provision do not form part of the provision”: s. 26(3) of the Interpretation (Interim Provisions) Act 1975. So Mr. Morgan’s appointment, although a temporary appointment, was not an acting appointment and was wrongly described in the Gazette as an APPOINTMENT OF ACTING DEPARTMENTAL HEAD.
In addition to the use of the word “acting” in describing appointments the words “temporary” and “substantive” have also been used: see s. 93(3) of the Constitution. It would appear that permanent appointments to the Civil Service are made under s. 68, appointments on transfer and promotion under s. 45 and acting and temporary appointments under s. 132(1) of the Act. In our view it makes no difference whether the head of a Government Department holds an acting, temporary or substantive appointment. They are all persons to whom the Leadership Code applies.
Section 26(1)(f) of the Constitution provides that the provisions of the Leadership Code apply to “all heads of Departments of the National Public Service”. Here “head” is spelt with a small “h” and “Departments” with a capital “D”. On the other hand the term “Departmental Head” is used throughout the Act with capitals “D” and “H” for the spelling of “Departmental” and “Head” respectively. Obviously the use of the small “h” in spelling “head” and the retention of the capital “D” for “Departments” in s. 26(1)(f) of the Constitution suggests that the word “head” was meant to encompass the de facto head, the man at the pinnacle or apex of the Department, be he acting, temporary or substantive. A look at the description of the persons in s. 26 of the Constitution who are subject to the Leadership Code shows clearly that they are all persons of power and influence. They are persons who are open to the temptation to abuse their powers for oppression of others or for personal gain to themselves, and are more exposed to bribery and corruption. Their responsibilities are described in s. 27 as follows:
“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.
...”
A leader has a duty not to place himself in a position in which he could have a conflict of interests or might be compromised when discharging his duties, not to demean his office or position, not to allow his public official or personal integrity to be called into question, not to endanger or diminish respect for and confidence in the integrity of government and not to use his office for personal gain. And in this connection we consider that the Constitution, insofar as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders, should not be considered a “penal” statute. In requiring a higher standard of behaviour from its leaders than from ordinary citizens, it should not be considered as “penalising” or “punishing” a leader; but as ensuring in the interests of the safety of the people that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders. No citizen need become a “leader”.
In interpreting s. 26(1)(f) of the Constitution one must have regard to the intention and spirit of the Leadership Code and the mischief that is aimed at.
Looked at in this light it makes no difference whether a Departmental Head is one that is acting, temporary or substantive, and for these reasons our answer to question one is “yes”.
In view of the fact that our answer to the first question is in the affirmative we refrain from giving an answer to the second question because it is our view that it is not necessary for the purposes of the application for an order nisi.
Question 1. is answered “Yes”.
Question 2. an answer is considered unnecessary.

[dclxiv]Infra p. 463.
[dclxv]Infra p. 463.