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Papua New Guinea Law Reports |
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
APPLICATION PURSUANT TO SECTION 155(4) OF THE CONSTITUTION
RE: JOHN MUA NILKARE
WAIGANI: AMET CJ; KAPI DCJ; LOS J
24, 25 February and 10 & 15 April 1997
Facts
The applicant was a member of parliament in the 1992 to 1997 Parliament. He was found guilty of 25 counts of misconduct in office by a Leadership Tribunal constituted under the Organic Law on the Duties and Responsibilities of Leadership and was dismissed from office as a Member of Parliament. He applied for and was granted leave by the National Court to apply for judicial review of the Tribunals’s decision. Whilst the application for review was pending in the National Court, he applied to the Supreme Court for it to assume jurisdiction and remove the application into the Supreme Court pursuant to s 155(4) of the Constitution:
"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
Held
We believe the power to fashion a remedial order ‘to do justice in the circumstances of a case’ gives wide discretion to this court. It means, in our view, this court is invested with unfettered discretion to fashion orders that will ‘do justice’ that is that which is just and fair." Per Amet CJ and Los J.
Papua New Guinea cases cited
Application by Posai [1995] PNGLR 300.
Avia Aihi v The State [1981] PNGLR 81.
Central Pomio Logging Corp Pty Ltd v The State [1992] PNGLR 20.
Constitutional Reference No 1 of 1978 [1978] PNGLR 460.
Kekedo v Burns Philp [1988-89] PNGLR 122.
Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80.
PNG v Kapal [1987] PNGLR 417.
Re Moki Nikints [1988-89] PNGLR 164.
Rex Kupu v Demas Doria [1988-89] PNGLR 1.
SCR No 2 of 1981; Re s 19 of the Criminal Code [1982] PNGLR 150.
SCR No. 2 of 1992 [1992] PNGLR 336.
State v Independent Tribunal Re: Moses Sasakila [1976] PNGLR 491.
Other case cited
Associated Provincial Pictures Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223.
Counsel
P Lowing, for the applicant.
P Mogish, for the State.
D Canning, for the Ombudsman Commission.
10 April 1997
AMET CJ. The applicant John Mua Nilkare was a Member of the National Parliament of Papua New Guinea, representing the Gumine Open constituency in the Simbu Province, in the 1992-1997 Parliament. He was found guilty of 25 charges of misconduct in office under the Leadership Code by the Leadership Tribunal and was dismissed from office as a Member of Parliament. He applied for and was granted leave by the National Court to apply for judicial review of the Tribunal’s decision. Whilst the application for review was pending in the National Court, he applied to the Supreme Court for it to assume jurisdiction and remove the application into this Court pursuant to Constitution s 155(4). That application was granted and that is how this application for review has come to this Court from the decision of the Leadership Tribunal, in the first instance.
Section 155(4) of the Constitution provides that:
"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."
Because the initial application before the National Court, for which leave was granted, was for judicial review, the application proceeded before this Court on the same basis as the standard judicial review before the National Court. The grounds advanced by the applicant were thus confined to procedural irregularities and unreasonableness in the decisions arrived at.
I consider however that Section 155(4) as the supreme inherent supervisory jurisdiction of this Court is not limited to orders in the nature of prerogative writs only, but enables this Court, "to make in such circumstances as seem to it proper, such other orders as are necessary to do justice in the circumstances of a particular case."
The twenty-five counts for which he was found guilty could be conveniently divided into six categories for the purposes of this review:
It will be noted by these categorisations that the largest number of charges, except two, are related to the administration and expenditure of Electoral Developmental Funds under four main programmes. The principle policy rationale for the introduction of these different electoral developmental funds, it seems to me, is to enable and facilitate expeditious expenditure on minor developmental programmes in the electorates by the incumbent member of Parliament by overcoming what he perceived to be bureaucratic delay in the delivery of goods and services to the vast majority of grass-roots constituents. I consider therefore that in the consideration of whether or not a leader has infringed any provisions of any guidelines, regulations or rules in relation to the administration and expenditure of such developmental funds, one ought always to bear in mind the primary purposes for the developmental funds. Given this principle policy basis for the appropriation of these funds for implementation and expenditure by the members of Parliament directly in their constituencies, the consideration of whether or not leadership code provisions have been breached in the management and expenditure of these funds in the implementation of projects and services related to the purposes of the programmes, cannot be one of strict liability in a purely technical and legal sense.
On the basis of this policy rationale, it is my view that the liability for breach of the Leadership Code and thus misconduct in office is not to be limited to strict technical non compliance with the letter of rules, guidelines and regulations but rather whether in the final analysis the primary purposes for which the funds were allocated were fulfilled or realised substantially. Viewed from this perspective, the issues would be, in my view, not as much as whether the specific regulatory provisions of administrative guidelines have been strictly complied with but whether the general purpose for which the funds where allocated were achieved or implemented. And ultimately whether the policy basis for which this developmental funds were appropriated by Parliament are substantially fulfilled, that is to say whether the general purposes of developmental programs or projects for the benefit of the public constituents was achieved or developed by the expenditure of the funds.
In the majority of the charges relating to the developmental programme being the MTP, RTAP, LGTG and RADP, it is not in dispute that the funds allocated to the applicant leader were expended on substantially programmed related purposes. It is not in dispute that none of the funds under those programmes were appropriated and expended by the applicant for his personal benefit or purposes. The evidence quite clearly reveals that the purposes to which the funds were expended were public institutional purposes for the benefit of the member’s constituency as well as several other constituencies for the general benefit of the public.
The applicant leader was found guilty of misconduct in office under two principle provisions of the Constitution and the Organic Law on Duties and Responsibilities of Leadership (the Organic Law). The principle provision of the Constitution pursuant to which the applicant was found guilty of misconduct is Section 27, the relevant provisions of which are enumerated hereunder.
(1) A person to whom this Division applies has a duty to conduct himself in such 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.
(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 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.
(5) A person to whom this Division applies who -
(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3), is guilty of misconduct in office.
The applicant was also found guilty of misconduct in office pursuant to Organic Law Section 13(a) which provides as follows:
A person to whom this Law applies who -
(a) intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully be applied; or... "
I turn now to deal with the specific counts under each category.
Category Minor Transport Programme (MTP) - Counts 1 to 6
These counts relate to the request for and expenditure of K20,000.00 from the MTP Funds. The applicant was a member of the new government elected into office following the July 1992 General Elections, and he was caretaker Minister for Transport as well as other ministries. He was advised that out of the budgeted appropriation for this programme in 1992 only K600,000.00 was left to be allocated by the new government, the out-going government having allocated and expended most of the funds out of this programme. There was some evidence to suggest that this amount of K600,000.00 had been allocated to members of Parliament in the previous Parliament, but no specific evidence as to which members and in particular as to whether or not those members had been re-elected.
The applicant instructed the Departmental Secretary to make arrangements to allocate K20,000.00 of these remaining funds to his own electorate of Gumine for improvement to roads. The funds were then transferred to the Department of Simbu for administration and subsequently the applicant instructed the Secretary of the Department of Simbu to apply the funds to various projects in his electorate. The projects included the following as are stipulated in Count 3:
K1,000.00 for Gumine Station;
K500.00 for Boromil Community School;
K500.00 for Omkolai High School.
As stipulated in Count 5:
I do not consider that for the applicant leader who was then caretaker Minister for Transport to have instructed the Departmental Secretary to release and commit K20,000.00 from the balance of K600,000.00 remaining in the budgeted funds for this programme for the year, to his own electorate is per se improper. There is no conclusive evidence that these funds were already committed. Indeed the contrary seems to be the fact in that the departmental secretary only reminded that proper procedures be complied with. If the funds were in fact committed to members of the previous Parliament, there is no evidence that these members were returned in the new House. The applicant’s request was subsequently approved by the substantive Minister for Transport, Mr Yaki. It is not wrong in principle for a member of Parliament who is also the minister responsible for a particular programme to request release of funds for projects in his own electorate.
In all these circumstances I consider that the Tribunal had erred in concluding that the direction by the applicant to the departmental secretary offended against provisions of Section 27 such as to amount to misconduct in office.
Similarly, in relation to counts 3 and 5 the applicant has been found guilty of having improperly directed the Secretary of the Department of Simbu to apply the remitted MTP Funds to the various projects in the applicant’s electorate that he had nominated. Again, I cannot conceive how the instructions by the applicant, the Member of Parliament to the Departmental Secretary who is the principal accountable officer to expend the funds to the projects that the Member of Parliament nominates in his electorate can be said to be improper and thus contravene the provisions of Section 27 of the Organic Law to amount to misconduct in office. The funds having been properly allocated and remitted to the provincial department for administration, it is the prerogative of the Member of Parliament for whose electorate the funds were allocated to determine in the appropriate consultative manner with the members of his constituency, appropriate committees and or council to determine the projects to which the funds were to be expended. It is therefore appropriate and necessary that the Member of Parliament instructs or directs the department administering those funds to commit and expend the funds to the project that the member nominates.
I find therefore that the findings and conclusions of the Tribunal in relation to Counts 3 and 5 are similarly wrong and would therefore quash them.
I will deal with Counts 2, 4, 6, 13, 14, 18, 20 and 26 which relate to Section 13(a) of the Organic Law together later under that section.
Category 2 -rural Transport Assistance Programme - (RTAP) Counts 7 to 15.
These counts relate to the allocation of two sums of monies, K200,000.00 initially and K50,000.00 later under the programme for Designated Rural Transport Improvement Projects. The relevant facts relating to the expenditure of these funds are substantially not in dispute. The applicant applied for funds for road maintenance programmes in his Gumine Electorate, which was approved by the Minister for Transport, Mr Yaki. The funds were then transferred to the Department of Simbu. The applicant, Mr Nilkare had held various discussions with representatives of the local council, the Department of Simbu and other relevant persons concerning the possible purchase of equipment to carry out road maintenance in the electorate instead of the usual practice of hiring equipment to carry out road constructions and maintenance which had had the effect of a considerable portion of the amount of money allocated being spent on the hire of plant and equipment. The consensus was reached that the funds would be better spent on purchasing equipment so that the electorate could become self-sufficient and not continually apply funds on the hire of equipment. There were only two suppliers of the equipment then under consideration in Papua New Guinea and Mr Nilkare obtained quotes from both suppliers for the supply of that equipment. Those quotes were forwarded to the Under-Secretary for Finance and Planning together with a copy of the Cash Fund Certificate (CFC) with a request that public tender procedures be waived under the Public Finance (Management) Act to facilitate the expeditious acquisition of the equipment. The evidence also was that the applicant had spoken to the Minister for Transport and asked that he be allowed to use the funds for the purchase of equipment instead of the projects nominated. This request was approved. The equipment then under consideration cost slightly in excess over K250,000.000 and so the applicant in a letter dated 20 July 1993 which thanked Mr Yaki of his approval for the expenditure of the K200,000.00 for the purchase of equipment, also requested an additional K100,000.00 for the purchase of the equipment with the balance to be used to pay operators fuel, lubrications, services and so on.
The Minister for Transport, Mr Yaki, only approved K50,000.00 as additional monies and not the K100,000.00 that had been requested.
Counts 7 had alleged that the applicant in writing an official ministerial letter to the Honourable Titus Philemon the then Under Secretary for Finance and Planning, requesting his approval for the waiving of all tendering procedures in relation to the proposed purchase of road making plant and equipment from the K200,000.00 that had been allocated to him was improper in that inadequate and or insufficient grounds existed for the waiving of the tendering procedures and the proposed purchase of the road making plant and equipment was for a purpose to which the said funds could not lawfully be applied, and thus he thereby contravened provisions of Section 27 of the Organic Law as pleaded.
There is no question in my mind that the purchase of plant and equipment for the purposes of up grading and improvement to the roads in the electorate was legitimate rural transport assistance expenditure for the purpose of the programme. There is ample evidence that permission was obtained from the Minister for Transport and that discussion and consultation had taken place with the appropriate representatives of the provincial department and the district of the electorate concerned. Whilst the letter of the guidelines as to the change of scope of a particular designated project may not have been strictly complied with, there is abundant evidence that approvals were properly obtained from the Minister responsible for the administration of these funds as well as approval obtained to acquire the plant and equipment without going to public tender for reasons of expediency.
The finding that the official request to the Under Secretary for Finance and Planning for approval to waive tendering procedures cannot be said to be improper. It is procedurally the correct application to make and the prerogative remains that of the Minister or the Under Secretary for Finance as to whether or not such a request for waiving of tendering procedures would be granted. I cannot understand how the official request per se for the reasons that are adequately in evidence, could possibly be said to be improper. And neither can the purchase of road making plant and equipment be said to be improper. It is to my mind a perfectly legitimate alternative and change of scope if appropriate approvals had been obtained. It is economical, it is practical and in the long term to the considerable advantage and benefit of the members of the public of the constituency. It is a purpose, which to my mind is perfectly lawful to apply the funds to.
I would therefore uphold the appeal against the Tribunal’s determination in respect of this count and quash it.
Count 8 refers to an official letter written by Mr Henry Mokomo, the then First Secretary to the applicant then Minister for Village Services and Provincial Affairs, on 14 July 1993, as a follow-up to the initial letter from the applicant to the Under Secretary for Finance and Planning, renewing the request for the waiving of the tendering procedures in relation to the proposed purchase of road making plant and equipment from the K200,000.00 allocated under the fund. The letter from Mr Mokomo, in paragraph two refers to the enclosure of two quotations as requested by the office of the Under Secretary.
The allegation that the Tribunal had sustained was that that request was improperly made in that it appeared to be motivated by overt political considerations and inadequate and or insufficient grounds for waiving of tendering procedures and furthermore that Mr Nilkare failed to publicly disassociate himself from the actions of Mr Mokomo thus contravening the provisions of Section 27 amounting to misconduct in office.
For similar reasons, I find the allegations, which have been sustained by the Tribunal to be quite without merit. The First Secretary Mr Mokomo is an official on the minister’s staff and the letter is an official follow-up letter, which is quite legitimate and appears to have been in response also to request for the furnishing of quotations from two sources for the purposes of consideration of the request by the Under-Secretary. I consider the basis for this charge to be quite without merit. I do not consider that the actions of an official in the office of the applicant minister to be irregular and improper. For these reasons also then I consider the determination by the Tribunal to be wrong and I quash it.
Count 9 is the allegation that the request by the applicant to the Minister for Transport Mr Yaki on 30 July 1993 for an additional K100,000.00 in ATAP Funds to enable him to purchase the equipment is improper in that it could have resulted in a grossly disproportionate amount of RTAP Funds being allocated to him. The fact was that only K50,000.00 was approved by Minister Yaki toward the acquisition of the plant equipment. Similarly, I do not accept that the formal request per se amounts to an improper request. It is on the face of it a legitimate request for the reasons given. The prerogative remained entirely in the Minister for Transport as to whether or not such request would be granted. In the event only K50,000.00 was granted for the purchase of equipment of which was also approved by the Minister for Transport. Again I find these allegations and the reasoning to be quite misconceived. I quash the Tribunal’s determination accordingly.
Count 11 relates to a further letter dated 4 August 1993 from the applicant Mr Nilkare as Minister for Village Services and Provincial Affairs to the Under Secretary for Finance and Planning, the Honourable Titus Philemon advising that he had been allocated K200,000.00 for road projects in his electorate and requested the Under Secretary to waive the tender procedures in order that the applicant would purchase a front loader and a grader for the road projects. The letter enclosed a copy of the quotation for the two equipments. This request was alleged and determined by the Tribunal to have been improperly made in that inadequate and or insufficient grounds existed for the waiving of tendering procedures and also that the proposed purchase of the road making plant and equipment was for a purpose to which the said funds could not lawfully be applied.
Once again on the face of the letter of request to the Under Secretary, to in his discretion and judgment waive the tendering procedures under Section 40(3)(C) of the Public Finance (Management) Act, in my view, is not improper. It is a request, which is legitimately made, and the kind that is continually made by institutions of government to expedite administrative procedures for acquisition of equipment and capital works. In the end result the discretion and prerogative remained with the Under the Secretary or the Minister for Finance as to whether or not such request would be granted. I consider the charge to be misconceived and without substance and the finding of the Tribunal is consequently erroneous and should be quashed.
Count 12 relates to a further letter dated 10th August 1993 by Mr Henry Mokomo the then First Secretary to the office of the applicant as Minister for Village Services and Provincial Affairs. This letter enclosed the relevant documentations pertaining to the application for waiving of tender procedures, including quotes from Morgan Equipment, copy of a letter to Minister for Transport and a copy of the CFC released from the Department of Transport of the applicant’s funds in the amount of K200,000.00. The letter addressed to the Secretary, Department of Finance and Planning concludes that it is hoped that the information would fulfill the requirements from the Department for the processing of the Certificate of Exemption for the Minister for Finance. This correspondence that closed and referred to the appropriate documentations necessary for the consideration of such applications under the relevant provision of the Public Finance (Management) Act, are all to my mind the necessary procedures that needed to be complied with. There is further the evidence of a minute dated 17 August, 1993 from Acting First Assistant Secretary (Public Accounts) B Pokanau to the Under Secretary in relation to this request to waive tender procedures. This minute advised the powers that the Under Secretary had to waive tender procedures under Section 40(3)(C) of the Public Finance (Management) Act. It advised that such power could only be exercised after perusing all of the attached documents.
I conclude similarly that the determination of guilt in relation to this count ought not to stand and I quash it accordingly.
It is worthy to note that on 17 August 1993 the Parliamentary Under Secretary for Finance and Planning the Honourable Titus Philemon did advise the applicant Mr Nilkare referring to the several letters of 14 July and 10 August 1993 that he had considered and approved the purchase of the two plant equipment costing K90,328.00 from Morgan Equipment of Lae, but had not approved the purchase of the Komatsu Dozer costing K160,912.00 because his powers under the provisions of the Act was limited to only K100,000.00 per transaction. The Under Secretary then recommended that Minister Nilkare liaise with Works Supply and Tenders Board.
Count 15 relates to the failure to acquit the advance of the K250,000.00 under the RTAP and the Less Developed Areas Programme (LDAP). Again the expenditure of these funds was by the Provincial Department toward the acquisition of the Plant and Equipment, the records of which are available in the finance division of the provincial department and which were available to the auditors. These were funds that were not personally expended by the leader applicant. Whilst the leader is responsible for expenditure of the funds in the appropriate manner, I do not consider that the omission by him of the detailed acquittal of the major capital expenditure that had been under-taken and effected by the provincial department is such that it amounts to breach of provisions of Section 27 hence a misconduct in office. I therefore conclude that the determination of guilt in respect of this count is also unsupported and should be quashed.
Category 3 - Local Government Tied Grants (LGTG) - Counts 16-21
I consider that these charges relating to the implementation of the new governments policy on Provincial Affairs, as to how the funds are to be allocated and expended are misconceived. In my view, ultimately how the funds are allocated, on what purposes they are expended and to whom they are allocated are matters of political governmental policy that the minister responsible for the administration of the funds has the immediate prerogative to determine.
I do not consider that it was unlawful and improper of the applicant then Minister for Village Services and Provincial Affairs to have instructed the Departmental Secretary to distribute the funds in accordance with the Minister’s directions which were consistent with the policy platform of the party that the Minister represented, on the basis of which his party supported the formation of the government.
I do not consider therefore that it was improper for the appropriate minister to have approved for funding the applications that were submitted to him by other members of Parliament, as indeed is the policy guidelines in respect of such developmental funds. The purposes to which the funds had been expended, most definitely, in my view are purposes to which the funds could lawfully be applied. They are basic capital infrastructure that can only be for the benefit of the local councils who serve the grassroots people. They are substantial capital investment, and there cannot be any possible suggestion that the funds were wrongly applied to the benefit of the individual Member of Parliament. It is similarly not improper or unlawful for the minister responsible for the administration of the particular developmental fund, such as the applicant in this case, to approve funding for a project in his own constituency. The count, which charges this as being improper and thus amounting to a breach of Section 27 to my mind, is also misconceived. Again the expenditure of that fund approved by the applicant minister who is also a Member of Parliament for the construction of a council chamber in his own electorate cannot possibly be a purpose to which the fund could not lawfully be applied. The instruction to the departmental secretary following that policy direction and decision as to the allocation of the funds to the respective district projects, to proceed with the processing of those approved allocation cannot, in my view, be said to be a conduct that amounts to misconduct in office. On the premise that the decisions were consistent with the implementation of the new policy initiative and direction of the government that the applicant’s party is a member of and which policy the applicant’s party had initiated, the allocation of funds and their expenditure on legitimate public purpose capital infrastructure for the benefit of the people cannot be said to be contrary to the best interest of the people of Papua New Guinea.
For these reasons all of the determinations of the Tribunal relating to Counts 16 to 21 are in my view misconceived and cannot be upheld. I therefore quash them all.
Category 4 - Rural Agricultural Development Programme (RADP) - Counts 25 to 27.
Counts 25 in my view are similarly misconceived. There is in my view adequate evidence that the applicant member had requested allocation of funds from this development programme for allocation by him in his electorate towards smallholder agricultural projects. I therefore consider the determination of guilt as being wrong and I quash it.
Counts 26 and 27 are ones that I consider the leader could properly have been found guilty of misconduct in respect of. I consider that unlike the expenditure of other developmental funds toward basically good public purpose capital infrastructure development such as council chambers and plant and equipment for improvement of roads for the long term to be retained by the local government councils, to expend funds obtained for a particular developmental programme on personal debts and other non-developmental programme related expenditure is unlawful even though reimbursement is effected. It is not appropriate and lawful to deposit funds for public programmes into personal account and expend them on personal debts as well as cash advances to other individuals for non-programme related expenses.
Similarly then to not acquit such expenditure fully is technically in contravention of the relevant financial regulations and thus technically amounts to a misconduct offence. I therefore uphold the determinations of the Tribunal in respect of these two accounts.
Category 5 - Indebtedness - Count 29
In relation to this count I accept the submissions for the applicant that the question of the applicant’s legal liability and indebtedness remained disputed before the Courts and so the conclusion that he was indebted to the two banks is wrong. Furthermore there is no evidence at all to support the allegation that being so possibly indebted placed the applicant in positions in which he had or could have a conflict of interest or might be compromised when discharging his public or official duties. It is possible that to have such a large indebtedness could place a leader in a position where his public or official integrity might be called into question, but without that debt being legally established it cannot in reality be said to have that potential.
I consider that wrong considerations have been applied by the Tribunal to determine the leader applicant was guilty of this charge. I would therefore quash the determination of the Tribunal.
Category 6 - Mr Arabgali - Count 31
I consider that the circumstances giving rise to this letter are such that they do not amount to a contravention of Section 27 of the Constitution to found a determination of misconduct in office. I consider the basis of these charges to be misconceived. The basis of the letter is political are unsubstantiated and the count should be dismissed. I quash the determination of the Tribunal accordingly. The basis of the letter is political. It is written by the party leader for valid reasons. In the end result, the employee was not dismissed.
The determination of the Tribunal should be quashed.
Section 13(a) - Organic Law on Duties and Responsibilities of Leadership (Organic Law)
It was submitted that the applicant had not followed the guidelines in the application of the funds for purposes other than to which they were initially allocated and so the leader was guilty of misconduct in having intentionally applied the funds to purposes to which they could not lawfully be applied in breach of the s 13(a) of the Organic Law.
The Tribunal accepted that proposition in concluding that it was clear on the evidence that the guidelines were not followed in that no proper plans or proposals were submitted and certified and so the leader was guilty of having wrongly and unlawfully applied the funds to the purposes to which they were applied.
It is true that the purposes to which the funds were ultimately applied were not strictly the purposes for which the funds were applied for and allocated, the issue nevertheless still remains as to whether the strict non compliance with the provision of the guidelines could be said to have been unlawful. As I have indicated the purposes to which the funds in all of the seven charges except the expenditure of the RADP Funds were all beneficial public purposes for the benefit of the people generally. The issue therefore is not whether the purposes were for the benefit of the public at large and thus good public purposes, but rather whether by non-strict compliance with the guidelines, the application of the funds could be said to be unlawful. It seems to me that the submission in support of this proposition is a narrow one confined strictly to whether or not the letter of guidelines are followed or not. It would follow that if such guidelines were not followed strictly to the letter then application of funds for purposes, which would nevertheless be good public purpose for the benefit of the public at large, would be still held to be unlawful application. I consider that to be far too narrow a proposition and interpretation of the general scheme of Electoral Development Funds and the policies that found the appropriation of these funds for the benefit of the constituencies to be applied by the Member of Parliament.
I consider primarily that if the purposes to which the funds were legitimately applied in the general spirit of the particular developmental programme are good general public purposes for the benefit of the people, with bona fide good intentions and substantial procedural regularity in the allocation and expenditure of the funds, then it could not be said to be unlawful application for the purposes of the Organic Law.
The most important consideration must be whether or not the purposes to which the leader has applied the funds are good public purposes, which benefit the public constituents and not the leader personally. If the purpose falls within the general guidelines of the particular programme and that substantial bona fide efforts had been made to comply with procedures then again the fact that the strict letter of particular guidelines may not have been complied with, does not render the application of funds to those particular public purposes to be unlawful. Additionally, the applicant leader has taken issue with the legal status of the irrelevant programme guidelines. It has been vigorously contended that the guidelines are precisely what the term implies that is they are merely guidelines only and do not have the force of statue or regulations to have legal status, the non compliance with the provisions of which the application of funds could be said to be unlawful. This to my mind is a valid proposition. The guidelines are mere guidelines promulgated by the National Executive Council to Government and as quite clearly was manifested by this particular government in 1992 in December of that year new programme guidelines were endorsed replacing the previously existing from 1988.
For all these reasons in my view, the Tribunal had erred in concluding that the purposes to which the funds were applied were unlawful and thereby the applicant had been guilty of misconduct in office. I would therefore quash the findings of the Tribunal that the leader was guilty of misconduct in office in respect of counts 2, 4, 6, 13, 14, 18, and 20.
In the final count I quash all the determinations of the Tribunal except in respect of counts 26 and 27.
KAPI DCJ. A leadership tribunal was appointed to hear charges of misconduct in office against Mr Nilkare (hereinafter referred to as the applicant) under the provisions of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). A total of 31 counts of misconduct in office were referred to the Tribunal consisting of Mr Justice Woods, Mr Seri Seneka SPM and Richard Koronai SPM (hereinafter referred to as the Tribunal) for hearing commencing on 31 May 1996. On 27 June 1996 the Tribunal handed down its decision. It found the applicant guilty of counts 1-9, 11-21, 25-27, 29 and 31 and not guilty in respect of counts 10, 22-24, 28 and 30. The Tribunal recommended the dismissal of the applicant from the office of Member of Parliament in respect of all the counts for which he was convicted.
Subsequently, the applicant sought leave to apply to the National Court for judicial review of the Tribunal's findings and recommendations under O 16 r 3 of the National Court Rules. On 18 November 1996, the National Court granted leave and the substantive application was set down for hearing in April 1997 in the National Court.
Subsequently, lawyers for the applicant filed a motion in the Supreme Court on 25 November 1996 for an order to remove the judicial review proceedings in the National Court into the Supreme Court. The Court (Los, Jalina and Andrew, JJ) made an order on 17 December 1996 to remove the National Court proceedings into the Supreme Court. This is how this matter has come before us for hearing.
At the hearing, I raised the issue of whether this Court has jurisdiction to hear the matter in view of the fact that the National Court has granted leave for judicial review and that as far as we were aware those proceedings were still on foot in the National Court. This issue was not pursued any further in view of the fact that counsel for the respondents did not raise any objection to the jurisdiction of this Court in hearing the matter.
However, I should point out that this case is not to be taken as a precedent in the future for transferring matters which have been commenced in the National Court and are still pending there. The manner in which this case has come before us raises important jurisdictional issues, which must be addressed if this issue arises again in another case.
For the purposes of the matter now before us all parties were agreed that the original jurisdiction of the Court in this matter is given by s 155(4) of the Constitution. The powers given under this provision maybe categorised in two parts. The first part is "..inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs.." and the second part is "such other orders as are necessary to do justice in the circumstances of a particular case." The nature of the power in the first part is determined by reference to "orders in the nature of prerogative writs". This can only be a reference to the prerogative writs in common law. It means that in determining orders under the first part of s 155(4), the Court will be guided primarily by the principles of common law.
The applicant seeks an order in the nature of certiorari to quash the decision of the Tribunal. In particular, counsel for the applicant has attacked the validity of findings of guilt by the Tribunal on the basis that the Tribunal made a number of errors going to jurisdiction. For this proposition counsel for the applicant relied on Associated Provincial Picture Ltd v Wednesbury Corporation [1947] EWCA Civ 1; [1948] 1 KB 223. The same principles have been applied in this jurisdiction (see PNG v Kapal [1987] PNGLR 417; Kekedo v Burns Philip [1988-89] PNGLR 122. Counsel for the respondents did not contest the application of these principles.
Detailed submissions were made in respect of the errors made by the Tribunal in respect of each of the counts. I will return to the consideration of these submissions later in the judgment. At this stage I want to identify and summarise the nature of each of the grounds, which are alleged to be in error.
The first of these grounds may be briefly described as factual matters, which were either in evidence or referred to by the Tribunal but that the Tribunal failed to give any consideration or weight to them.
The second category of grounds may be said to follow from the first ground, namely, a failure by the Tribunal to balance all the relevant matters or gave inadequate justification or reasoning for the conclusions reached.
These two grounds will be dealt with more specifically in relation each of the counts later in the judgment.
The third category of grounds may be described as errors committed by the Tribunal with regard to questions of law. This can be dealt with in two parts. The first relate to counts, which were brought under s 13 of the OLDRL. Counsel for the applicant submitted that two elements need to be satisfied under this provision: (a) intention (mens rea) on the part of the leader to apply the funds for a purpose which is not lawful and (b) in so far as breach of NEC Guidelines are alleged, these guidelines must have the force of law.
Section 13 is in the following terms:
"13. Misappropriation of funds of Papua New Guinea.
A person to whom this law applies who-
(a) intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully be applied; or
(b) intentionally agrees to any such application of any such moneys, is guilty of misconduct in office."
This provision has not received judicial consideration in this jurisdiction. The essential elements of this offence are as follows: (1) that there is money or a fund under the control of Papua New Guinea; (2) that this money was intended for a lawful purpose; and (3) that a leader intentionally applies the money or the fund to a purpose, which is not lawful.
The question is what is a lawful purpose? The word "lawful" has been used in other legislation. In Summary Offences Act (Ch 240) s 20 provides: "A person who without lawful excuse, is in, on or adjacent to any premises is guilty of an offence" (emphasis added). In Rex Kupu v Demas Doria [1988-89] PNGLR 1, the National Court interpreted "lawful excuse" to mean an excuse allowed or permitted by the civil or criminal law or any combination of the two.
In Re Moki Nikints [1988-89] PNGLR 164, the Court considered s 42(5) of the Constitution where a Judge is satisfied that the imprisonment of a person is not "lawful", he may order release of the person. The Court was concerned with a complaint that the respondent encouraged the complainant's wife to leave him and live with another man. A Village Court Magistrate ordered the respondent to pay compensation and on the same day ordered the respondent to be imprisoned for failing to pay the compensation. The Court found that the Village Court failed to comply with the provisions of Adultery and Enticement Act 1988 and this rendered the order for imprisonment "unlawful" under s 42 of the Constitution.
These cases show that the words "lawful" or "unlawful" have been interpreted to mean lawful or unlawful in the strict legal sense.
Furthermore, the word ‘law’ has been used throughout the Constitution and this has been defined to mean law in the technical sense (see definition of "law" in Sch. 2.2 of the Constitution).
I am of the opinion that the use of the word "lawfully" in s 13 (a) of OLDRL imports the notion that the purpose for the money must be set out or required by law.
In the present case, the purpose, which is alleged to be lawful, is set out in the Guidelines prescribed by the National Executive Council for the distribution of MTP and RTAP funds. Counsel for the applicant submitted that these guidelines do not have the force of law. They are simply bureaucratic or administrative guidelines reflecting the political aspirations of the government in power. They therefore do not have the force of law.
During the hearing, counsel for the respondent was asked to show or to trace the origins of the Guidelines in order to demonstrate whether the power to make them can have force of law. She was unable to point to any statutory provision, which may form the basis of the Guidelines. In absence of such a basis, I find that the Guidelines in question do not have the force of law.
It would follow from this conclusion that where funds are applied to purposes outside the Guidelines, this cannot amount to applying money to "a purpose to which it cannot be lawfully be applied" under s 13 (a) of OLDRL.
I have already indicated that s 13 (a) expressly requires intention on the part of the leader when applying the funds. That is to say the leader knows the purpose for the funds under the law but deliberately or intentionally apply the funds to a purpose outside the law.
In the second part which deal with questions of law, several counts allege misconduct in office pursuant to s 27(1)(a)(b)(c) and (d); s 27(2); s 27 (3)(a) and (b); s 27(5) (b) of the Constitution. Counsel for both parties did not make detailed submissions with respect to the elements of misconduct in office under this provision. Counsel for the applicant in response to a question from the bench simply responded that mens rea also applies to misconduct in office under s 27 of the Constitution.
In interpreting s 26(1)(f) of the Constitution the Supreme Court said in Constitutional Reference No. 1 of 1978 [1978] PNGLR 460 at 464:
"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."
Before I turn to the interpretation of the provision, it is worthwhile to make reference to the CPC Report, which set out the underlying philosophy and the purpose of the Leadership Code. I refer to and adopt in particular paragraphs 1, 3, 4, 6, 9, 10, 11, 16 of Chapter 3 of Final Report of the Constitutional Planning Committee 1974.
Much of what has been expressed by the CPC in the report is reflected in s 27 of the Constitution. Section 27 is concerned with responsibilities and conduct of leaders. Subsection (1) deals with the "duty to conduct himself in such a way, both in his public or official life and his private life". This relates to (1) conduct generally and (2) in his association with other persons. The nature of conduct, which may result in misconduct, are itemised in s 27(1)(a) - (d). Such conduct includes behaviour on the part of the leader where there may be a conflict of interest or where the leader's position may be compromised (s 27(1)(a)).
The other three types of conduct (s 27(1)(b) to (d)) are expressed in very wide and general terms. It is incapable of precise definition. In fact any kind of definition is likely to fall short of what this provision was intended to cover. These provisions cast a very wide net to catch all kinds of conduct by leaders. One thing is clear; it is the public perception of the leader, which is the dominant theme. Section 27(2) speaks about "doubt in the public mind". When a leader demeans his office or his integrity is called into question this will diminish the respect for and confidence of government.
What then are proper standards of conduct? I have no doubt that laws of this country in themselves set a standard of conduct. Where a leader breaches or ignores any law of Papua New Guinea, he is likely to breach s 27(1)(b) to (d) of the Constitution. If a leader is convicted of an offence in relation to his office or position or in relation to the performance of his functions, s 27(5) specifically lists this as misconduct in office.
Standards of conduct by leaders may also be found in any policy directions or guidelines that may be established by appropriate lawful authorities. In the present case Guidelines have been determined by the National Executive Council for the allocation of various funds. The standard of conduct of leaders will be determined by the principles set out in these Guidelines.
In addition there are fundamental moral and ethical standards by which the community is guided. I have no doubt that when the Constitutional framers adopted the Preamble; they made an important statement about the standards of conduct:
"WE, THE PEOPLE OF PAPUA NEW GUINEA-
....
We pledge ourselves to guard and pass on to those who come after us our noble traditions and the Christian principles that are ours now."
The Preamble refers to the noble traditions of our ancestors and the Christian principles. Such principles include decency, honesty, integrity, transparency, accountability and the like. These principles will be taken into account in determining whether the conduct of leaders amount to misconduct in office under s 27 of the Constitution.
Section 27(2) deals with a particular conduct, namely, use of office for personal gain and is to be read together with subsection (1).
Subsection (3) deals with conduct of family members and others who are connected with the leader. If conduct of such people gets out of hand then the leader must publicly disassociate him from such persons.
Subsection (4) is not applicable in this case.
I have already stated that where a leader is convicted of an offence in respect of his office or position or in relation to the performance of his functions that is misconduct (s 27(5)).
Section 13(a) Offences - Unlawful Application
The applicant was found guilty of counts 2, 4, 6, 13, 14, 18, 20 and 26, which were based on s 13(a). The Tribunal failed to adequately define the elements of the offence under s 13(a) of OLDRL. I have held that the purpose for applying the money under this provision must be required by law. In respect of all these counts, the purpose for the money in question was set out in Guidelines, which do not have the status of law. It would follow from this conclusion that convictions in respect of these counts were wrong in law and therefore unreasonable. I would quash these convictions. It is not necessary to consider other submissions in relation these counts.
Section 27 Offences
Counts 1, 3 and 5
Counts 1, 3 and 5 may be considered together as they involve the subject of the same funds which were directed to be used "for Gumine roads".
Count 1 charged that the applicant improperly directed Mr Amini to make arrangements to immediately release K20,000.00 from MTP funds for 1992 for "Gumine roads". In order for the applicant to be found guilty of this count, the prosecutor had to prove that the said amount of money was allocated for a particular purpose and that the applicant improperly directed that the money to be used for another purpose. For the purpose of applying s 27, the purpose of the money need not be set out in law. It is sufficient that the purpose is set out in Guidelines approved by the National Executive Council. It may be accepted for the purpose of this count that the amount of K60,000.00 under the Minor Transport Program had not been allocated to any project. The question is whether the direction to release K20,000.00 from this fund for Gumine Roads was improper. When considering this issue it is relevant to bear in mind that the applicant made this request as caretaker Minister for Transport after the general elections in July 1992. It is important also to take into account that the Hon. Mr Roy Yaki was appointed the Minister for Transport and that on 24 July 1992 he gave approval for the funds to be allocated as requested. In the circumstances the direction to release the funds cannot amount to misconduct and therefore the conviction by the Tribunal is unreasonable. I would quash the conviction in respect of this count.
Count 3 alleges that the applicant improperly directed the Secretary of the Department of Simbu to apply MTP funds (a) K5,000.00 be given to District Manager in Gumine for the cost of repairs to the official motor vehicle (b) K2000.00 for Independence celebrations (K1000.000 to Gumine station, K500.00 to Bormil Community School and K500.00 to Omkolai High School). I find that the applicant was well aware that the money was for Gumine roads. I do not find that the three purposes come within the purpose of construction of Gumine Roads. The use of public funds for unauthorised purposes would certainly raise the applicants official integrity to be called into question and would demean his position. I would uphold the conviction in respect of this count.
Count 5 alleges that the applicant improperly directed Secretary of Department of Simbu to apply MTP funds to unauthorised purposes, namely, K500.00 to Spakui Community School and K3000.00 to Sina District for independence celebrations. I would uphold this conviction on the same basis as in count 3.
Counts 7, 8, 9, 11, 12, 15
These counts may be dealt with together. They deal with the amount of money allocated to the applicant under the Rural Transport Assistance Program. An amount of K250,000.00 was allocated to the applicant for the following projects:
Total Allocation K250,000.00
Count 7 alleges that the applicant improperly made a request to the Hon Titus Philemon, the then Under-Secretary, Ministry of Finance and Planning requesting his approval for the wavering of all tendering procedures in relation to a proposed purchase of road making plant and equipment from K200,000.00 allocated under RTAP. There is nothing improper about requesting to waive the requirements for tendering process. The fact that an application does not have a proper basis is of itself not improper. However, if the application contains any misleading or untruth statement, which may be intended to induce the approval, this would result in misconduct. The question is whether there is any such statement in the application. In absence of such evidence there can be no misconduct within the meaning of s 27. I would quash the conviction in respect of this count.
Count 8 is based on the fact that the letter requesting wavering of tendering process is improper. However, as I have held there was no misconduct in count 7 I would quash this conviction on the same basis.
Count 9 alleges that the applicant requested additional sum of K100,000 for RTAP funds to enable him to purchase a Komatsu model D65E12 tracked dozer costing K160,912.00 and a Komatsu model WA250 rubber tyred loader costing K90,328.00. It is alleged that this amounted to misconduct in that it would have amounted to disproportionate allocation to the applicant and that this was a request for which there had been no public tender or wavering of such tender in accordance with the law. A mere request for additional funds cannot of itself amount to misconduct within the meaning of s 27. There is no suggestion that the applicant made any misrepresentation in making the request for additional funds. It is up to the appropriate authority to reject or approve any such request. Such authority may consider whether or not there has been any tender or whether these additional funds may result in disproportionate allocation. In absence of any misrepresentation, a request for additional funds simply cannot amount to misconduct in office. I would quash the conviction in respect of this count.
Count 11 alleges that the applicant made an improper request of the Hon Titus Philemon, the then Under-Secretary, Ministry of Finance and Planning requesting wavering tendering procedures in respect of purchase of one Komatsu D65E12 tracked dozer costing K160,912.00 and one Komatsu model WA250 rubber tyred loader, costing K90,328.00. Whether or not such an application is approved is a matter for the approving authority. The fact that the application was made without any proper basis cannot result in misconduct provided there is no misrepresentation in the application. I would quash the conviction in respect of this count.
Count 12 alleges that the applicant failed to disassociate himself from the act of his associate Mr Henry Mokomo who followed up a letter of the applicant, which requested to waive the tender procedures. The letter by the applicant was the subject of count 7. I have already held that there was no misconduct in making this request. I would quash the conviction in respect of this count.
Count 15 alleges that the applicant failed to acquit the advance of K250,000.00 under RTAP and LDAP. This is not a question of whether or not there is a legal obligation to acquit the funds. It was accepted by counsel for the applicant that the only requirement to acquit relates only to the question of whether the leader may get advance for the following year. Inherent in this requirement is that if money is not properly acquitted not only that the leader does not get further advances but also that reflects the inability of the leader to handle public money. That in my view would give rise to questions demeaning the office of the leader or the integrity of the leader may be called into question. I would uphold the conviction in respect of this count.
Counts 16, 17, 19 and 21
These counts may be dealt with together as they deal with the question of allocation and use of Local Government Tied Grants. It is not disputed that an amount of K1.286 million was appropriated for LGTG in the 1992 National Budget. It is also not disputed that this fund was to be distributed proportionately to the eighty-nine open electorates throughout Papua New Guinea. It is also not disputed that when the applicant came to office in July 1992 some of this money had already been distributed during the life of the previous Parliament. That an amount of K413,500 was yet to be distributed to 63 open electorates throughout Papua New Guinea. It is alleged that when the applicant got this information he then approved certain amount to his electorate and to three others members of the Parliament.
Count 16 alleges that the applicant unlawfully directed the Secretary of the Department of Village Services and Provincial Affairs to distribute the remainder of LGTG funds in accordance with his discretion. The question raised by this count relates to a question of law; who has the discretion to approve funds for distribution? To my mind the answer to that question is clear. The discretion is in the Minister. There can be no misconduct based on this particular count. I would quash this conviction.
Charge 17 alleges a more general offence under s 27. In essence the substance of the charge is that the scheme of these grants is to benefit the whole of Papua New Guinea by distributing the funds proportionately through the open electorates. That 63 open electorates remained to benefit from the fund. That by diverting the remaining funds to the use of three members the applicant has deprived the other open electorates from benefiting from this fund. It is alleged that the applicant was able to do this because of his position as the Minister who has the power to approve such funds. It is alleged that by so doing, he has allowed his integrity to be called into question and that he has demeaned his office. I am satisfied that the Tribunal rightly convicted the applicant of this count.
Count 19 alleges a similar offence to that in count 17 except that in the present count the approval given is in relation to use of the funds in the applicants own electorate. By this decision the applicant has benefited his electorate to the detriment of 63 open electorates. I would confirm this conviction.
Count 21 alleges particulars, which would come within the terms of count 17. I would quash this conviction.
Counts 25 and 27
These two counts deal with acquiring of funds from the Rural Agriculture Development Program and the acquittal of the same.
Count 25 alleges that the applicant obtained funds without having to follow proper procedure set out in the guidelines. This count does not make any allegation of misuse of funds or anything of that sort. The applicant did not dispute that he did not make a formal application in accordance with the guidelines. No further allegation of misconduct is made. The fund was approved by Minister Evara. There is no complaint about any role played by the applicant, which could have influenced the decision to make the grant. In the circumstances I would quash the conviction.
Count 27 alleges that the applicant failed to acquit the advance of K20,000.00. I would confirm this conviction on the same basis as I have held in count 15.
Count 29
This count involves indebtedness of the applicant to the PNGBC. I agree with submissions of counsel for the applicant that the matter of indebtedness was before the Courts and therefore the Tribunal was wrong in holding this matter against the applicant. I would quash the conviction.
Count 31
This count alleges that the applicant wrote a letter to a Ministerial colleague calling upon him to sack a Mr Damien Tibawi Arabagali then a member of Minister's staff unless he withdrew a petition against Herowa Agiwa, a political colleague. In my view such a behaviour would result in misconduct under s 27. The intention was to cause Mr Arabagali to withdraw the petition. The fact that he did not withdraw is irrelevant. I would uphold this conviction.
In summary I would quash the convictions in respect of counts 1, 2, 4, 6, 7, 8, 9, 11, 12, 13, 14, 16, 18, 20, 21, 25, 26, 29 and would confirm convictions in respect of counts 3, 5, 15, 17, 19, 27 and 31.
Penalties
The question then arises; what happens to the penalties imposed by the Head of State in accordance with s 28 (2) of the Constitution.
In respect of the convictions, which have been quashed, the quashing of the penalties is merely consequential. If any authority is required, those consequential or remedial orders would come within the meaning of "such other orders as are necessary to do justice in the special circumstances of a particular case" under the second limb of s 155 (4) of the Constitution.
The question is what happens to the penalties in respect of the convictions, which we have upheld? The effect of our decision is that by a majority (Kapi DCJ and Los J), the Court confirmed convictions in respect of 7 counts (3, 5, 15, 17, 19, 27, and 31). We heard further arguments from counsel on this question.
Several issues arise for our consideration in respect of these penalties. The first is, whether, this Court has any jurisdiction to review the penalties imposed by the Tribunal? The second is, if the Court has jurisdiction to review, do proper grounds exist to quash the penalties? The third is, if this Court quashes the penalties, would this Court have power to substitute its own penalty?
I will deal with the first question. Counsel for the applicant submitted that even though the penalty recommended was within the four corners of the discretion to punish, nevertheless, the penalty imposed was so unreasonable that no tribunal could have imposed such a penalty (Wednesbury case (supra)). This order, which is in the nature of certiorari, comes within the terms of the first limb of s 155(4) of the Constitution. It is the same power we have exercised in respect of the convictions by the Tribunal.
The question is, whether, the Tribunal has wrongly exercised its discretion in the manner set out in Wednesbury case? In order to answer this question we have to determine the nature of the discretion given to the Tribunal by law. The relevant law can be found in the following provisions: Section 28 (1) (g) (ii) and 28 (1A) of the Constitution; s 27 (5) of OLDRL and s 2 of Leadership Code (Alternative Penalties) Act (Ch. No. 1A). The combined effect of these provisions are that a person who is found guilty of misconduct in office shall be dismissed from office unless the Tribunal finds that there is (1) no serious culpability on the part of the leader and (2) public policy and the public good do not require dismissal of the leader. If a tribunal is satisfied of these two matters, it may recommend a lesser penalty set out in s 2 of Leadership Code (Alternative Penalties) Act.
The Tribunal in its recommendations referred fully to all the relevant provisions of the law. It then stated:
"In essence the Constitution and Organic Law provisions of the Leadership Code require that a leader found guilty of misconduct shall be dismissed unless the Tribunal is of the view that such penalty would be excessive in the circumstances of the case..... The Constitution in Section 28 provides that where there was no serious culpability on the part of the Leader found guilty and public policy and the public good do not require dismissal, it may recommend some other penalty than dismissal."
In my view the Tribunal correctly referred to the law and reached the correct conclusion on how to approach its task of recommending the penalty. The Tribunal directed its mind to the question of the culpability of the applicant in respect of the counts which we have upheld. In so far as it is relevant to the counts which we have upheld, the Tribunal said:
"First, there is the careless and even negligent handling of public monies when guidelines and procedures required due consultation and planning. This Tribunal cannot ignore what has gone on around us over the past years, which has led to serious financial problems facing the country. These problems can only emanate from the mishandling of the public monies. So if the failure to follow the stringent financial procedures and the careless application of public monies is symptomatic of the wider problem, then this deserves serious censure. The Leader was a Minister in the Government and people had a right to expect high standards of control and administration of the public account and as a Minister to generally ensure the Government as a whole manages the public account properly."
The Tribunal also took into account the fact that the applicant did not benefit personally from any of the funds.
The Tribunal did not deal with the question of what is public policy and public good that do not require dismissal of the applicant in so many words but I am sure it was dealing with this matter when it made reference to SCR No. 2 of 1992 [1992] PNGLR 336 dealing with a policy decision of the Supreme Court with regard to dismissal of leaders who are found guilty of misconduct in office.
In my view, counsel for the applicant has failed to demonstrate any error in the manner in which the Tribunal exercised its discretion. But more importantly, counsel has failed to show that the penalty is so unreasonable within the discretion given by the law that no tribunal could have imposed it. The Court cannot interfere as an appellate authority would but only as a judicial authority concerned to see whether the Tribunal has contravened the law by acting in excess of its powers (see Central Pomio Logging Corporation Pty Ltd v The State [1992] PNGLR 20 at 25. See also Application by Posai [1995] PNGLR 300 at 353 - 354.
It was suggested during submissions by counsel for the applicant that this Court can quash the penalties under the second limb of s 155 (4) of the Constitution. It was submitted that having regard to all the circumstances of the case, the penalty of dismissal from office is excessive and therefore justice requires that the penalties should be quashed. Not to do so is to cause injustice to the applicant.
With respect the effect of this submission is different in law to the discretion given to a Tribunal to impose a penalty in accordance with the provisions I have dealt with above. The difference is that this submission gives a much wider discretion than is given to the Tribunal under the Leadership Code provisions. As I have pointed out, the discretion of a Tribunal is more limited in that it is directed to impose a penalty of dismissal unless it is satisfied of the two matters set out in s 28 (1A) of the Constitution. To adopt this submission is to effectively change or amend the law relating to penalties for Leadership Code offences I have already discussed.
With respect, this submission is based on a misunderstanding of the meaning of the second limb of s 155 (4). The correct meaning of the second limb has been decided in two Supreme Court cases. The first is in Avia Aihi v The State [1981] PNGLR 81. That was a case in which an appellant in a criminal case lost the right of appeal to the Supreme Court under the relevant provisions of the Supreme Court Act. Counsel for the appellant sought to argue that under the second limb of s 155 (4) even though the appellant lost the right to appeal under the Supreme Court Act, it would be in the interest of justice to give the right to appeal in the circumstances of the case. Kearney DCJ at page 91 said:
"I agree with the views of Prentice CJ. Andrew J. in Constitutional Reference No. 1 of 1979; Premdas v Papua New Guinea [1979] PNGLR 329, at pp. 337, 401 that the Constitution, s 155 (4), involve at least a grant of power to the courts. I consider that the sub-section gives unfettered discretionary power both to this Court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of the remedial process such as the Mareva injunction need not be as tortious here as in England. But the Constitution, s 155(4) cannot affect the primary rights of parties; these are determined by law. In the circumstances of this case, the applicant now has lost her right to have sentence reviewed. That extinction of her primary right comes about by operation of law; that is, by her failure to comply with s 27 of the Act. The Constitution, s 155(4), cannot be used to re-create a primary right, once extinguished."
At page 107 I dealt with the issue in these terms:
"In determining whether a person has the right and whether the Supreme Court has the power, this has to be determined in accordance with the law on the subject. In my opinion these matters cannot be determined under s 155(4). The orders that can be sought under such general provision are too numerous; it is difficult to see how this provision can cover all of them....
Can it be argued that under s 155(4) it would do justice to extend time because it was not her fault that she did not apply within forty days? In my view this cannot be so. ‘Justice’ under this provision means justice according to law. This section is to be interpreted in the light of the doctrine of separation of powers under s 99 of the Constitution. The law making powers of the National Parliament have to be kept separate from the functions of the judiciary.
If this Court ruled that it can give a right to apply to the applicant under s 155(4) of the Constitution contrary to s 27 of the Supreme Court Act then this would have the peculiar effect in that this Court would have power to disregard or override clear provisions of the statutes. This, in effect, would amount to amendment or repeal of legislation by judicial power. Such an interpretation would put this Court above the legislature and it could make orders against the clear provisions of legislation if it thought the legislation was unfair or did not do justice."
The provision was fully argued in the Supreme Court (five member bench) in SCR No. 2 of 1981; Re s 19 of the Criminal Code [1982] PNGLR 150. In this case an accused person was charged with forgery and uttering of a document purporting to be a reference letter signed by another person. The facts were that the accused was an employee of the CIS. He wished to apply for a national scholarship and obtained a personal reference in writing from the Superintendent of the Bomana CIS. This reference inadvertently was destroyed by the accused’s wife and as the time for making his application had almost expired and as the Superintendent was absent from Port Moresby, the accused re-typed the reference in identical terms and placed the signature of the Superintendent on it. The accused then forwarded the reference to the appropriate body. The accused pleaded guilty to both counts.
The National Court considered that this was a case, which did not deserve any punishment. In fact he decided that no conviction should be recorded and wished to discharge the accused without recording a conviction. However, the difficulty was the National Court has no such powers to discharge the accused in the manner proposed. The National Court Judge found support for the proposal under the second limb of s 155(4) and discharged the accused without recording a conviction. He then referred the question: Did I err in law in finding that s 155(4) of the Constitution of the Independent State of Papua New Guinea empowers the National Court to proceed to the finding of a charge or charges proved against an accused person and to then make an order dismissing the charge or any other order, without proceeding to conviction?
The Court unanimously answered the question in the positive. That is, the National Court could not make the order under the second limb of s 155(4). The Chief Justice Sir Buri Kidu adopted the opinion of Kearney DCJ n Avia Aihi's case. He said at page 155:
"The provision under reference is worded in very wide terms. It does not, however, vest in the National Court or the Supreme Court the power to make orders, which confer rights or interests on people. Such rights or interests are determined by other constitutional laws, statutes and the underlying law. Section 155(4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement."
Kearney DCJ adopted his view expressed in Avia Aihi's case. He said at page 158:
"I respectfully agree with what I conceive to be the approach of Frost CJ; I adhere to the view of s 155 (4) I expressed in Avia Aihi v The State [1981] PNGLR 81, a case which turned on s 155 (2) (b). I consider that s 155 (4) is directed solely to the power of the court to issue preventive or remedial judicial process for the purpose of protecting or enforcing a party's primary rights. It is concerned with a party's secondary rights."
Greville Smith J. extensively discussed the relationship of the application of all laws defined under s 9 of the Constitution and s 155 (4) and then said at page 166:
"It is inconceivable that the legislature intended to give any court the option, in any particular situation, of applying the 'laws of Papua New Guinea' as set out in s 9, or of resolving the situation before it according to the court's own individual and independent notion of justice. This being so the word 'justice' in s 155 (4) means justice according to law, namely the law specified on s 9. It follows, in my opinion, that his Honour the referring judge acted in error..."
I expressed a similar view on pages 169-172 and on page 172 I applied that reasoning to the case in these terms:
"The order made by the learned trial judge in this matter could not be said to be of a similar nature to the orders intended under s 155(4) of the Constitution. His Honour was faced with question of the appropriate penalty to be imposed for a criminal offence under the Criminal Code. These are matters in respect of which the Parliament has unlimited power to legislate. The Legislature in its wisdom did not give to the courts power to do what the learned trial judge did. To make an order by way of penalty contrary to the provisions of the Criminal Code would be contrary to s 37(2) of the Constitution. I discussed this in Acting Public Prosecutor v Uname Aumane and Ors [1980] PNGLR 510 and I adopt what I said in that case. The question of what is an offence and the manner in which it could be dealt with and the penalty for an offence are matters, which must be defined and prescribed by written law. In the instant case the Criminal Code deals with the particular offence. The Code does not give such power to a judge to make the orders, which was made by the learned trial judge in this case. To interpret s 155(4) of the Constitution in such a way as to give the court the power to determine penalty other than those provided, would be in conflict with the provisions of s 37(2) of the Constitution. I do not think the framers of our Constitution intended this."
Pratt J. in my view came to the same conclusion when he said at page 177:
"The use of s 155(4) in the manner adopted in this case amounts, in my view, to a piece of judicial legislation which cuts completely across everything contained in the Code itself."
In summary where a law provides for a particular matter, that matter should be regulated by that law and that the second limb of s 155 (4) cannot be applied in such a way to enable the court to apply a notion of "justice" which is different or contrary to that law.
Counsel for the applicant has not suggested that we should not follow these two cases. These authorities have not been questioned for the last (15) years and I have no reason to change my views.
I would apply these principles in the following manner. The question of penalty in respect of an offence under the Leadership Code is regulated by s 28 of the Constitution, s 27 (5) of OLDRL and Leadership Code (Minimum Penalties) Act. The Constitution in s 28 (1) (g), s 28 (1A) clearly and exclusively gave the power to the legislature to make provision for penalties for Leadership Code offences. The Parliament has already done this in s 27 (5) of OLDRL and the Leadership Code (Minimum Penalties) Act. This Court cannot create or develop its own notion of punishment different or contrary to the provisions I have referred to above by way of second limb of s 155(4). To interpret s 155(4) in this manner is to adopt the words of Pratt J. is a "piece of judicial legislation" which cuts right across the penalty provisions referred to above. I would dismiss this submission.
I have already determined under the first limb of s 155 (4) that the recommendation for dismissal by the Tribunal in respect of the seven offences is not so unreasonable. The end result is that the penalties recommended by the Tribunal stand.
If, however, I am wrong on the question of the reasonableness of the recommendation to dismiss from office, then I have no doubt that the Court would have power to quash the recommendations to dismiss as we have done in respect of the convictions. The question that would then arise is; whether this Court has power to make a recommendation to substitute for a lesser penalty under the Leadership Code (Minimum Penalties) Act?
In considering this issue, we start with the premise that the power to determine and recommend penalties is given to a Leadership Tribunal. This is a special type of jurisdiction and the power to deal with them is given exclusively to a Leadership Tribunal. That is the clear intention of the legislature. The courts cannot assume this responsibility. This is subject to the powers given to the Courts under s 155(4). This matter has come directly to the Supreme Court. Under this provision the Court can only have power to make "orders in the nature of prerogative writs" as understood in common law. The power we have exercised in this case comes within the common law principles (Wednesbury case). The question is; whether if a penalty is quashed within the principles enunciated in Wednesbury case, would the court have jurisdiction to substitute its own recommendation for a penalty? We have not been referred to any authority, which would give this Court power to determine the merits relating to penalty. The authorities are clear that judicial review proceedings in common law cases are basically concerned with the process of decision-making and not concerned with the merits of the decision. In this regard I adopt what I said in Kekedo v Burns Phillip (PNG) Ltd [1988-89] PNGLR 122 at 124.
This issue arose for consideration in Application by Posai (supra). The applicant was found guilty of offences relating to misconduct in office and the Leadership Tribunal imposed penalties under the law. The applicant sought judicial review of Tribunal’s decision on penalties. The review was brought pursuant to s 155(4) of the Constitution. In considering the issue, Sheehan J said at page 355:
"The essence of this application is a request that the Court review and determine whether it considers that the weight of evidence before the Tribunal justified the penalty of dismissal imposed or whether that evidence, in fact, suggested that a different penalty would be more appropriate. That is a challenge to the Tribunal’s decision, not to its validity, and is something the Court cannot do. The power of that decision rests solely with the Leadership Tribunal. Even if the applicant presents evidence that might suggest to the Court that it would decide penalty in another way, that would not be a ground for review. That would be the Court assuming functions of the Tribunal, something that it is not empowered to do."
Once that decision is reached, the second limb of s 155 (4) cannot be used to give the Court a power it does not have. I would not be prepared to develop the underlying law in this regard so as to give the Courts power to recommend a penalty in Leadership Tribunal cases. I do not consider that it would be appropriate to develop this part of the law by judicial act (see Sch. 2.4 of the Constitution). The reason is that the Constitution has expressly given the power to determine all these issues in an Organic Law (see s 28 of the Constitution). This is a matter, which should be left to the legislature to consider changing the law (see Wik Kor v The State [1983] PNGLR 24). I would also adopt the other reasons for not developing the underlying law set out in the judgment of Greville Smith J. in SCR N0. 2 of 1981 [1982] PNGLR 150 at 165.
In the event that the penalty recommended by the Tribunal is quashed in accordance with Wednesbury principles, the question of the appropriate penalty should be referred back to the Tribunal to determine. This Court has no power to make any recommendation on penalty. Under s 28 (1A), (2) of the Constitution, only an independent tribunal is given any powers to make a recommendation and the Head of State is bound to act in accordance with the recommendation. There is no room for any view that the Head of State must act in accordance with a recommendation of this Court. If by a judicial act the Court makes the recommendation on penalty then in my view this would amount to an amendment of the Constitution on the question of penalty in Leadership Code matters. That in my opinion would be clearly wrong in law.
LOS J. The Deputy Chief Justice has set out sufficient background of the application to review the decision of the Leadership Tribunal and there is no need for me to repeat any of it in detail. Suffice is to say that the applicant, herein after called the leader, was found guilty by the leadership tribunal on 24 charges out of a total of 31. The counts upon which he was found guilty were 1 - 9, 11- 21, 25 - 27, 29 and 31. He was found not guilty on counts 10, 22-24, 28 and 30. As well as dealing with jurisdictional question, His Honour identified three major issues for this Court to consider and he came to certain conclusions. The first issue relates to meaning of the word "lawfully" used in s 13(a) the Organic Law On Duties and Responsibilities of Leadership (the Organic Law). His Honour discussed the meaning of the word and concluded that it imported the notion that the purpose for the money must be set or required by law. The guidelines had no statutory base therefore they did not have the force of law. Consequently the funds applied outside the guidelines could not be unlawful. With respect I agree with the conclusion.
The other two issues involved factual consideration in accordance with the principles in Wednesbury’s case [1947] EWCA Civ 1; [1948] 1 KB 223. That is whether the Tribunal had failed to give any consideration or failed to give weight to the factual matters in evidence or referred to it. Also whether the Tribunal had failed to balance all the relevant matters or given adequate justification or reasons for the conclusion reached. These are usual principles used in judicial review proceedings.
His Honour then considered the provision of s 27 of the Constitution under which many of the charges had been laid. He categorised conducts for the purpose of section 27 as (1) conduct generally (2) conducts in association with other persons and (3) other conducts incapable of precise definition. He concluded by saying the provisions cast a very wide net to catch all kinds of conduct by leaders. One thing is clear that is "the public perception of the leader which is the dominant theme". With respect I adopt the analysis and with these background, I now proceed to examine the grounds of appeal.
Unlawful application
Count 2, 4, 6, 13, 14, 28, 20, 26. All these counts contained allegation of intentional application of money to purposes to which the money could not lawfully be applied. Count 2 involved application of K20,000 being for Minor Transport Programme (MTP) for Gumuni roads. Count 4 involved application of K7,000 being from MTP funds for repair of a motor vehicle, Independence celebrations, Gumine station, Bormil Community School and Omkalai High School. Count 6 involved applications of K3,500 in MTP funds for Spakul Community School for Independence celebrations at Sina District. Count 13 involved applications of K39, 378.44 being from MTP funds on 23 expenditures many of which were for travel and accommodation. Count 14 involved application of K206,689 on heavy-duty motor vehicles and road building machineries. Count 18 involved application of K250,000 on Nambayafa council chamber, Lufa Conference Center and Sina Sina Local Government council. Count 20 involved application K100,000 on the construction of Gumine Council Chamber in the leader’s own electorate. Count 26 involved unlawful application K19,860.66 from RADP funds. As a matter of law I have to quash the finding of guilt. The evidence may support an offence under s 27 of the Constitution.
The Tribunal dealt with counts 2, 4 and 6 under what was described as 1st category and found the leader guilty on these counts on the grounds that-
"the leader did not follow the guidelines, did not properly apply for the money and did not ensure that the monies he obtained for his electorate through his sponsorship were properly spent for the purposes for which the programme was intended."
The finding clearly indicates the Tribunal’s concern for proper application and proper accounting of the public funds. Ultimately the public funds must be applied for the public benefit. It is my view that as the ultimate aim of application of public fund is for the benefit of the public the means provided for ensuring that the public does benefit are not the end themselves but they are merely means to achieve that end. If therefore the means are over emphasised to the point where the ends are clouded then irrelevance may get the better of a decision making process. The means, especially the guidelines, do not have a force of law as I said earlier. I accept therefore that the guidelines are bureaucratic or administrative guidelines reflecting the political aspirations of the government in power. In broadest sense therefore K20,000 was not unlawfully applied. I would therefore quash the decision of the Tribunal in counts 2, 4 and 6.
Count 13 involved directing application of K39,378.44 of the RTAP funds on non-transport related projects. Count 18 involved applications of K250,000 of the Local Government Tied Grant on construction of council chamber contrary to the stringent guidelines. Count 20 involved directing K100,000 initially tied to certain projects to constructions of Gumine Council Chamber. On count 13 the tribunal found that "the Leader was clearly responsible for the incorrect use of funds alleged in count 13 and thereby guilty under section 13 of the Organic Law". Apart from the finding only vague reference was made to the expenditure of K39,378,44. This expenditure was closely tied to the expenditure on the purchase of the heavy road building equipments and machineries. The status of expenditure depends on the status on that expenditure. To the extent that the counts 13 and 14 alleged unlawful application of funds they cannot stand on the same reasoning I applied to quash the counts 2, 4 and 6.
On count 18 and 20 the Tribunal said the leader had no discretion to override the guidelines and redirect the funds. The redirection charge depended on the meaning of unlawful application s 13 of the Organic Law. I therefore quash the Tribunals decision on counts 18 and 20.
The remaining counts were founded on the provisions of s 27 of the Constitution. These counts are 1, 3, 5, 7, 8, 9, 11, 15, 16, 17, 19, 21, 25, 27, 29, 31.
"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.
(5) A person to whom this Division applies who---
(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),
is guilty of misconduct in office.
Counts 1, 3, 5
The Tribunal dealt with those three counts together with counts 2, 4, and 6 under 1st category counts. The Tribunal concluded that the leader acted improperly as stated in count 1. He demeaned his position by giving instruction to use monies improperly as stated in count 3. He had caused money to be wrongly applied as stated in count 5. Count 1 involves the same K20,000 for which the leader was charged under s. 13 of the Organic Law that I discussed earlier. The fund was committed for other members’ projects but not yet released. The leader directed that the funds be used for the Gumine roads. On the section 27 (of the Constitution) offences, as a matter of law I agree with Kapi DCJ that the section casts a wide net. But as to whether the leader was caught by the net depended on the evidence called to prove the allegations laid under any of the four clauses (a-d). In my view what runs through all the clauses is a duty upon the leader not to create a potential situation where he might be tempted to an extent that he might abuse his position in such a way that he might demean his position, his personal integrity might be called into question leading eventually to diminish the respect for the Government. The appropriate question to ask therefore is whether the conducts of the leader were such that he had breached the duty. If indeed the evidence so suggested then the leader was appropriately found guilty. If after he had put himself in such a position thereby falling into temptation to use his position, he must be appropriately dealt with under Subsection (2). However, if the conducts had gone further to the extent that the leader may be guilty under a different law, e.g. criminal law then he may be dealt with under that law. I am therefore of the strong view that an extent of the expenditure should not infer breach or influence a tribunal without more. Count one is restricted to improper direction. The evidence was clear on the Tribunal’s finding that the leaders request was approved by the Minister for Transport Mr Yaki. But the Minister could not recall whether there was a proper scope of work done before the money was released. He acknowledged that the strict guidelines were always difficult to follow where minor roads were in difficult areas. In my view nevertheless the leader’s direction without providing a proper scope of the work was bound to raise the question whether the fund was for public purpose at all. Therefore I would confirm the decision of the Tribunal.
On count 5 the Tribunal found the leader guilty of causing money to be wrongly applied. As I said in relation to the count 3, if causing the fund to be wrongly applied referred to failure to submit feasibility studies for the project and failure to furnish acquittals then the leader was technically guilty. He could only be guilty under 27(1)(c) because he would have caused a suspicion to an extent that his personal integrity might be called into question. The leader was also charged under s 27(5), which could only come into play if the leader was convicted of any offence in the proceeding subsections. I would confirm the decision of the tribunal in finding the leader guilty on both counts.
Counts 7, 8, 9, 11, 12, 15
The basis of Count 7 was that the leader had requested the Under Secretary Ministry of Finance to waive tendering procedures in relation to the purchase of road making plant and equipment from K200,000 in public funds. It was said that the request was improper because there existed insufficient reasons to waive tender procedures and secondly the proposed purchase for which funds could not lawfully be made.
The Tribunal found the leader guilty because it was "satisfied that the Leader misled the Under Secretary by seeking approval for the use of monies for a project which had not been approved". If mens rea was an important element required in the proof of the offences in Section 27 of the Constitution, the letter to the Under Secretary dated 24 June 1993 could not support the charge. Because the onus of proof required in leadership proceedings is higher than the civil standard but somewhere below the criminal standard it would have been difficult to see how the Tribunal could have reached such a conclusion. However, in my view the content of the letter was such that it would not have raised any question on the face of it, it was reasonable to conclude that the letter had misled the Under Secretary. But, I would discount the part of the charge that related to unlawful application. In a broader sense purchase of the machinery and equipment was for normal transport programme in the leader’s electorate. It seems the leader had certain time frame in mind where ordinary civil service department i.e, Works could not respond within this space of time to complete the roadwork. The Tribunal was again influenced by failure to comply strictly with guidelines. The guidelines as I said earlier are political guidelines with no statutory base. Hence to hold that failure to strictly adhere to the guidelines meant that the application of funds was unlawful was an apparent error. But I would confirm the finding of guilt on the misleading part only.
Count 8 said the leader had failed to disassociate himself from the act of his First Secretary, the act being a letter written in support of an early letter-requesting waiver of the tender procedures. I have discussed this in relation to count 7. In my view there was insufficient evidence to support the funding that "the leader encouraged a further misleading letter to the then First Secretary". I would quash the Tribunal’s decision therefore.
Count 9 had three parts which were that by requesting more funds to purchase road building machinery it; (a) gave rise to doubt in the public mind whether the leader was carrying out his duties; (b) his request would result in grossly disproportional amount of PTAP; and (c) the funds could not lawfully be applied in the proposed purchase. The Tribunal found the leader guilty because the "proper procedures had not been complied with". The Tribunal did not address how any suspicion could have risen in the public mind when the public for the purpose of the leader was the beneficiary of the proposed purchase. The tribunal did not address whether upon evidence the proposed purchase would have resulted in grossly disproportionate allocation of PTAP funds. The question of unlawful application could not arise and I have discussed the reasons earlier. But certainly failure to obtain approval and going through proper tender procedures had the potential of raising question what the leader would be using the money for. It is my view that the question of how the money was spent did not arise except for penalty considerations. I therefore confirm the Tribunal’s decision.
The leader was charged under count 11 for a further request to waive tendering procedures in the purchase of a front loader and a grader. The Tribunal found that the request "was based on a false premise and thereby improperly made". The thrust of the charge was whether the act of not obtaining approval to spend money on that equipment before seeking waiver of tender procedures allowed the leader’s integrity to be called into question. For this I use the same reason as in count 9. I therefore confirm the finding by the Tribunal.
In count 12 the leader was charged because he had failed to disassociate himself from the act of his associate, namely Henry Mokomo. The act was writing of a letter to Finance as a follow up of the leader’s request to waive the tender procedures. The Tribunal found "that the leader did encourage a false letter regarding tendering procedures". This finding lacks any logical nexus with the charge and lacks any evidence for such a conclusion. I therefore quash the decision by the Tribunal.
Count 15 alleged failure to acquit any of the advance of K250,000 advanced to the leader. As matters of evidence indeed no acquittals had been found. But the argument remains whether the leader had the ultimate legal responsibility to acquit all the advances. Failure to acquit is not an unnecessary requirement. It prevents temptation to misuse public funds. But in my view how the money was spent in specific expenditures must influence what penalty should be imposed on a leader. All the observations aside, I confirm the decision by the Tribunal on this count.
Counts 16, 17, 19 and 21 were categorised by the Tribunal as 3rd category which included counts 18 and 20 that I have dealt with earlier under the heading of unlawful application of money. These counts related to the allocation and use of monies from the Local Government Tied Grants appropriation for 1992. These grants were funded from annual budgetary appropriations and administered by the Department of Provincial Affairs. When the new Government was formed the leader became Minister for Village Services and Provincial Affairs. When he learnt that some K413, 500 remained to be distributed, he directed the funds to be applied to certain projects he identified. The basic breaches alleged were that the funds were already allocated and tied to certain projects in different provinces. His direction to apply the funds elsewhere meant that other provinces would miss out hence disproportionate distribution of funds. Count 16 therefore charged the leader with unlawful direction, followed by Count 17 for abuse of powers, diversion of funds contrary to national interest, causing disproportionate allocation, by passing procedures and guidelines, denying equal opportunity to every citizen, failing to achieve equal distribution of monies and benefits and equalisation of services in all parts of the country. Similar charge was made subject of count 19 but for different amount namely K110,000. In count 21 the leader was charged with demeaning his office by directing the Secretary of the Department to process funds for his own use and three other political associates.
The leader was found guilty in all counts that are he was found guilty of improper direction, improper approval, and improper application of funds and abuse of powers. It is clear to me in the evidence produced before the Tribunal, the leader used the occasion and his position to help his electorate and his two colleagues’ electorates, hence creating a situation where a suspicion could have risen whether he was occupying the ministerial position for himself or for the whole country. Apart from the fact that none of the funds went into the leaders ‘own pocket’, I do not find that the Tribunal was in error in arriving at guilty verdicts on counts 16, 17, 19 and 21.
Counts 25 and 27
These two counts were dealt with by the Tribunal in the 5th category, which included count 26. On count 26 the leader was found guilty of misdirecting funds. But I quashed the conviction as a matter of law. On the remaining counts as the leader was a senior minister; it is deplorable to let he fall into the acts subject of the charges. But I note for the purpose of punishment that the Tribunal decided against implication of any corruption. I also put aside all the critical language used in support of the charges. I however, confirm the basic evidence that supported the Tribunal’s finding.
Count 29 and 31
The leader was found guilty upon allegation made in count 29 that he was heavily indebted to two financial institutions, PNGBC and Agriculture Bank. He was also found guilty on allegation that he used his position to influence a colleague to sack a staff of the latter unless the staff withdrew an election petition against another person who was member of the leader’s political party.
In the beginning I expressed the view that Section 27 sought to prevent potential abuse, potential conflicts and potential questioning of a leaders’ ability to be clean and upright in his dealing. Except for payment of a telephone bill, there is no evidence that any of these debts had influenced his ability as a leader at that point in time. The present status of the court proceedings relating to those claims is not in evidence. On the evidence, the Tribunal could only find that proceedings had been instituted based on certain guarantees. Without realisation of any assets in reduction of the claim of indebtedness, it was not fair for the tribunal to be so much influenced by the figure given to it. Putting that aside as relevant only for penalties, I do not find that the tribunal was in error in finding the leader guilty.
The foundation of count 31 was that the leader used his position to force a petitioner in an election dispute to withdraw the petition so that the result would be that the respondent an LNA member would remain elected. The Tribunal concluded, "(t)his is clear abuse of his position for the benefit of another and give rise to doubt as to whether he is suitable to carry out his office".
It was argued on behalf of the leader that the leader did not write the letter as the Minister but that he wrote the letter as leader of his political party LNA in an attempt to protect the interest of the party. Reference was made to Diro’s Case in support of this contention. I think there is a fine line that sometimes it is difficult to find. Indeed a leader of a political party has a right to take necessary steps to protect the interest of his political party. On the other hand a citizen is free to challenge the result of an election. Of course use of the letterheads itself is insufficient to tip the balance. But the channel of communication used with the transmission of a copy of the leader’s letter to the Prime Minister, clearly indicate that he was communicating as ministerial colleague and a cabinet member of which Prime Minister was the head. I am of the view therefore that the Tribunal was not in any error in finding the leader guilty.
EDITORS NOTE: On April 15, 1997 the following judgment on penalties was delivered by Amet CJ and Los J.
15 April 1997
AMET CJ; LOS, J. On Thursday 10 April this court granted the application to review the decision of the Tribunal’s finding of guilt against the leader. As a result eighteen (18) counts out of twenty-five counts on which the leader had been found guilty were quashed. We heard the submission on penalties on the remaining counts after an adjournment.
It was submitted on behalf of the respondent that this court could only interfere with or alter the penalties if the Tribunal acted outside the law. The counsel argued that once the Tribunal found the leader guilty, it was bound by s 28(5) of the Organic Law to recommend dismissal. The counsel sought to rely on the decision by the Supreme Court in the State v The Independent Tribunal Re: Moses Sasakila [1976] PNGLR 491.
We consider where the Tribunal acted within the law, this court should indeed be reluctant to interfere with its decision. The law for this purpose is Section 28 of the Constitution, which says:
"1A. An Organic Law may provide that where the Independent Tribunal finds that:
(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
(b) public policy and the public good not require dismissal,
it may recommend to the appropriate authority some other penalty provided for by law be imposed."
The Tribunal was bound to recommend dismissal because it had found serious culpability on the part of the leader. In count 29 for example, the tribunal felt bound to recommend dismissal and said "the count may not appear serious... however in view of the range of other counts ... we feel this count should be dealt with in similar vein". We consider however, that after the decision of this court, the culpability of the leader has been considerably lessened. It has been lessened in respect of range, number and extent so that serious culpability on the leader no longer exists. Further, we have determined in the majority of the counts relating to the charges laid under Section 27 of the Constitution that though the leader was guilty for failing to comply with proper procedures, large sums of money were indeed applied for public benefit. In view of this we consider it ridiculous to suggest that this court is deprived of any jurisdiction to correct any injustice which may have been caused to the leader. The Supreme Court is the highest court of the land as such it has inherent power under s 155(4) of the Constitution to make any orders "as are necessary to do justice in the circumstances in a particular case". The circumstances here justify that the court must exercise that power. That is to say to refer the seven counts back to the Tribunal would mean little substantially. The leader must know whether he is qualified to nominate for election or not.
The Tribunal had by law alternative penalties available to it. They are provided in s 2 of the Leadership Code (Alternative Penalties) Act.
"2. Alternative Penalties
The penalties that may be recommended and imposed under and for the purposes of Section 28(1A) of the Constitution and Section 27(5)(b) of the Organic Law are that the person found guilty of misconduct in office---
(a) be fined an amount fixed by the Tribunal, not exceeding K1,000.00; or
(b) be ordered by the appropriate authority to enter into his own recognizance in a reasonable amount, not exceeding K500.00, fixed by the tribunal that he will comply with Division III.2 (Leadership Code) of the Constitution and with the Organic Law during a period fixed by the Tribunal, not exceeding 12 months from the date of the announcement, under Section 27(6) of the Organic Law, of the decision of the tribunal; or
(c) be suspended, without pay, from office or position for a period not exceeding three months from the date of commencement of the suspension; or
(d) be reprimanded,
or if he is a public office-holder as that expression is defined in Section Sch. 1.2(1) of the Constitution, that, as determined by the Tribunal-
(e) he be reduced in salary; or
(f) if his conditions of employment are such as to allow of demotion---he be demoted.
However, as we said earlier that on it’s findings as to the seriousness of the culpability of the leader, the Tribunal was bound to recommend dismissal. We cannot therefore hold that the Tribunal was wrong. But we consider that after this courts decision, the recommendation for dismissal cannot stand. We also consider that recommendation for entering into recognisance, suspension, reprimand, reduction in salary and demotion are irrelevant. We consider that fine is more appropriate in the circumstances.
We would therefore quash the recommendation to dismiss the leader on all the seven counts. We would recommend instead a fine of K1,000 on each count totaling K7,000.00.
For the purposes of the discussions on the issues of penalties, it is important to restate how this matter has come to this court. The applicant was found guilty of 24 charges of misconduct in office, by a Leadership Tribunal, and was penalised by dismissal from office as a Member of Parliament, in respect of each charge. He applied to the National Court and was granted leave to seek judicial review of the decision of the Tribunal.
Whilst the application for review was pending, he applied to the Supreme Court for it to assume jurisdiction to hear the application, pursuant to its inherent jurisdiction under Constitution s 155(4).
The Supreme Court thus ordered that, in the circumstances, the applicant’s application should be brought up and heard by this court, pursuant to its inherent power under s155 (4). The primary right of the applicant to have the decision of the Tribunal reviewed by this court was granted pursuant to s155(4).
This court "reviewed" and examined the evidence and the decision of the Tribunal, in our view, in the courts inherent jurisdiction under s.155 (4) and quashed 17 of the 24 determinations of misconduct and confirmed the remaining 7. Consequently, by virtue of the same inherent power, the penalties of dismissal from office in respect of the quashed 17 charges were set aside.
The application for review of the penalties was not addressed in the initial hearing because it was considered more appropriate to address after the court gave its ruling on the determinations of misconduct, so that the issues of culpability and public policy and public good, relevant to whether or not the applicant should be dismissed from office, could be more meaningfully addressed based on the observations of the court.
The parties were invited to address the issues of the appropriateness of the penalties of dismissal in respect of the 7 determinations of misconduct upheld.
For the applicant, it was submitted that the circumstances upon which the 7 remaining determinations were confirmed did not amount to such serious culpability that each warranted dismissal from office. Also in the circumstances public policy and public good did not require dismissal, in that though the applicant was guilty of misconduct, it was essentially as a result of trying to do too much too quickly and he thereby erred in not complying with certain procedural requirements. The projects were in fact good public purpose projects and the applicant did not personally benefit. These mitigated his culpability, it was submitted.
The respondents submitted in response that the remaining determinations of misconduct that had been confirmed individually warranted the penalty of dismissal and so should not be disturbed. The failure to comply with proper procedures for the expenditure of public funds was so serious that the penalty in respect of each charge of dismissal could not be said to be so unreasonable that this court should interfere with them. It was submitted that once the Tribunal found the leader guilty of a charge of misconduct, it was bound by s 28(5) of the Constitution to dismiss, unless it found there was no serious culpability on the part of the leader, and that public policy and public good did not require dismissal, in which case it may recommend to the appropriate authority that some other penalty provided for by law, be imposed, per Section 28(A). It was submitted that the circumstances of the misconduct were such that there was serious culpability involved and public policy and public good required dismissal from office.
In the alternative, the respondents contended that, if the court considered that the penalties should not be sustained then they ought properly to be referred back to the Tribunal to consider and recommend appropriate penalty, as only the Tribunal is empowered to recommend the appropriate penalty. It was submitted that this court has no jurisdiction to consider and make recommendations as to penalties.
Does This Court Have Jurisdiction To Review Penalty?
The relevant provisions of the Constitution for the purposes of discussing this issue are to be found principally under the following Subsections of s155:
"(2) The Supreme Court -
(b) has an inherent power to review all judicial acts of the National Court; and
(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.
(3) The National Court -
(a) has an inherent power to review any exercise of judicial authority; and
(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,
except where -
(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or
(d) the Supreme Court assumes jurisdiction under Subsection (4); or
(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament".
(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.
Firstly, we agree with and restate the view expressed by Kearney Dep. C.J in Avia Aihi v The State [1981] PNGLR 81 at 93 that:
"no distinction is to be drawn in my opinion, as regards the Constitution, s 155(2)(b), between the concepts of "jurisdiction" and "power". In normal language usage, "jurisdiction" connotes the authority of a court to exercise judicial power in a specific case; while "judicial power" is the totality of the powers of a court, when it embarks upon the hearing of a case within its jurisdiction ... . Further, it appears that the "inherent power" in the Constitution, s 155(4) is characterised as a "jurisdiction" in the Constitution s 155(3)(d), although the power there referred to in fact accords more closely with the strict sense of the word."
We too consider that there is to be no distinction between the concepts of "power’ and "jurisdiction" as regards s 155(4). If the Court "assumes jurisdiction under Subsection (4)", then it has authority to exercise the totality of judicial powers, when it embarks upon the hearing of a case within its jurisdiction. Section 155(4) is clearly a grant of power.
It has been suggested that s 155(4) does not vest "jurisdiction" in the court to review the penalties that had been imposed and that the court does not have "power" to order or recommend any other penalty. Two leading authorities of this court that dealt with s 155(4) have been referred to as authority for the contention that this section does not allow the court to make any order that statute had vested in another tribunal: (1) Avia Aihi v The State (Supra) and; (2) SCR No. 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150.
The effect of the ruling in Avia Aihi v The State (supra) as regards s 155(4) is a narrow one; that is that it, "cannot affect the primary right of parties; these are determined by law." In the circumstances of that case, the applicant having lost her primary right to have her sentence reviewed, by the operation of law, that is, by her failure to comply with s 27 of the Supreme Court Act, s 155(4) could not be used to re-create a primary right, once extinguished. Deputy Chief Justice Kearney, however did say at p. 91;
"that the sub-section gives unfettered discretionary power both to this court and the National Court so to tailor their remedial process to the circumstances of the individual case as to ensure that the primary rights of parties before them are protected. And so, for example, the development of remedial process such as the Mareva injunction need not be as tortuous here as in England."
In SCR No 2 of 1981 (supra), the issue as regards the ambit and scope of the court’s powers under s 155(4) were different. The issue before the Supreme Court was whether, the National Court, having accepted a plea of guilty, found guilt proved, may in reliance upon s 155(4), decline to convict. The court held that s 155(4) does not empower the National Court, where it has found an offence proved to dismiss it without convicting, the power of disposition of offenders dealt with under the Criminal Code is exclusively and exhaustively provided for therein. Chief Justice Kidu said at p 155 that:
"Section 155(4) exists to ensure that these rights or interests are enforced or protected if existing laws are deficient to render protection or enforcement".
Deputy Chief Justice Kearney also said at p. 158:
"I consider that s 155(4) is directed solely to the power of the court to issue preventive or remedial judicial process for the purpose of protecting or enforcing a party’s primary rights. It is concerned with a party’s secondary rights".
In our opinion, the effect of these two decisions as regards the ambit of s 155(4) are limited to the following:
A number of obvious conclusions need to be stated in respect of the effect and application of s 155(4) to the circumstances of this application thus far. The first is that the Supreme Court (Los, Jalina and Andrew,JJ) in it’s inherent power made order on 17 December, 1996, pursuant to s 155(4), assuming jurisdiction in this court over the application. Secondly, this court, in the exercise of its inherent jurisdiction considered the application and examined the Tribunal’s determinations of misconduct against the applicant and the evidence relating thereto. Thirdly, this court, in the exercise of its inherent power, pursuant to s 155(4), made orders, in the nature of the prerogative writ of certiorari, quashing 17 of the 24 determinations of misconduct against the applicant. The automatic consequential effect of the quashing of the determination of guilt was the annulment of the respective penalties of dismissal from office. If any authority, apart from the underlying law, be needed then s 155(4) vests that inherent power.
In our respectful opinion, the jurisdiction to review the penalties recommend by the Tribunal is a necessary corollary of the assumption of jurisdiction by this court, pursuant to s 155(4), to review the decisions of the Tribunal. This Court has consequently the inherent jurisdiction to review the penalties imposed, as recommended by the Tribunal.
Does This Court Have Power to Recommend Other Penalty?
The next issue becomes, does this court has the power to order or recommend any other penalty. Again, it seems to us trite that if a court has jurisdiction to review an order or penalty, then it has the judicial power to affirm, vary or adjust that order or penalty within the ambit of that power as vested in it. The ambit of the "inherent power" we are here concerned with is to be found in the terms of s 155(4), and none other.
Constitution s 158 provides for the exercise of judicial power and interpretation of the law generally as follows:
Schedule 1.5 directs that:
We adopt the following comments of Deputy Chief Justice Kearney in respect of s 155(2)(b), in Avia Aihi v The State (supra), as having equal application to the interpretation of s 155(4).
"As the ultimate court in the National Judicial System, this court is invested with the judicial authority of the people; s 158(1). That is the exclusive and ultimate source of its authority. The word "inherent" in s 155(4), as also used in s 155(2)(b), (3) and (5) indicates that it is from that unlimited power that the courts’ authority under that provision is derived; it is not a reference to a power possessed by the court simply because it is a court. The word "inherent" also connotes that within the limits of the subject matter of s 155(4), the power of the Court is plenary - (i.e. full, entire, completed). In the absence of express constitutional provisions, that power and its exercise cannot be restricted by any Act of Parliament ...".
We also adopt the comments of Chief Justice Kidu in the same case at p 87, in respect of s 155(2)(b), with equal force to s 155(4):
"We cannot cut down the powers of this Court if the Constitution has invested it with extra jurisdiction or power. If this Court has been granted inherent power by the people through the Constitution, we must be bold in stating the fact... Whatever the nature of this power might be, it does not derive from any statute or the common law or any prerogative powers of persons or bodies outside Papua New Guinea."
We are of the opinion that, in applying the injunctives of Constitution Sch. 1.5, to read each constitutional law as a whole, and to give all words, expressions and propositions in them, "their fair and liberal meaning", this Court has "inherent power to make, in such circumstances as seem to (it) proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of (this) particular case," pursuant to s 155(4). Of this interpretation there cannot now be any doubt.
"In Such Circumstances As Seem To Them (Supreme And National Courts) Proper."
The obvious next issue that arises is, in what circumstances may the courts exercise their inherent power to make appropriate orders. The plain answer in our view is, "in such circumstances as seem to them proper." This is necessarily an infinite variable, as it must from case to case, as is necessary in the courts mandate to "give paramount consideration to the dispensation of justice" - s 158(2).
Such circumstances as may seem to the Court proper ought not, in our view be restricted to circumstances found in common law applications for judicial review now adopted as underlying law. Though this application commenced in the National Court as a judicial review, in our view, when this court invoked its jurisdiction under s 155(4), the powers of the court thereunder cannot be restricted. It is inherent plenary power, to be given fair and liberal meaning to dispense justice.
We are satisfied that the circumstances of this application are such that it seems to us proper that, in the exercise of this court’s inherent power, orders be made to recommend penalties other than dismissal from office. The primary order quashing 17 determinations of misconduct and affirming 7 have already been made, by order in the nature of the prerogative writ of certiorari.
The basis upon which the majority of the Court upheld the 7 determinations of misconduct in office are not the same as found by the Tribunal. Where 17 from a total of 24 determinations of misconduct by the Tribunal are quashed, the total gravity or culpability of misconduct must necessarily be reduced significantly.
"Orders in the Nature of Prerogative Writs"
The first category of orders that the court may make, in our view, are not restricted to prerogative writ type orders. The words "in the nature of" simply means "characteristically resembling or belonging to a class of", or "a kind, sort or class." They mean in plain language "like or similar to". The court therefore has inherent power to fashion orders, in this first category, that are like or similar to prerogative writs in character.
"And Such Other Orders As Are Necessary To Do Justice In The Circumstances of A Particular Case"
We are in no doubt that this court has the ultimate judicial authority of the people, by virtue of this second part of the inherent power under s 155(4), to "make ... such other orders as are necessary to do justice in the circumstances of a particular case."
We note the following comments in The Annotated Constitution of Papua New Guinea, by Brunton and Colquhoun-Kerr, on p 345.
"The history of judicial application of s 155(4) has been one of restraint.... Notwithstanding this history of restraint it has been surprisingly difficult to state concisely the effect of s 155(4). This is because although the Supreme Court has reached unanimous decisions in several cases in which the interpretation of s 155(4) has been in issue, individual judges have expressed divergent reasons for their conclusions. Broadly, these divergent holdings can be grouped into two categories.
The narrow view, neatly expressed by Kapi J. in SCR No. 2 of 1981, Re s.19(1) of the Criminal Code [1982] PNGLR 150 at pp. 169-171 is that the words ‘such orders as are necessary to do justice" must be construed ejusdem generis with the words that precede them. Thus, in Kapi J’s view, s 155(4) confers upon the National and Supreme Courts only the power to make orders having the character of the prerogative writs and then only in so far as is necessary to do justice according to law. This narrow view has commanded occasional support (see for example Greville-Smith J, in the same case at p.167) but appears unlikely to gain majority approval.
The preponderance of judicial opinion instead appears to favour the slightly wider formulation originally expressed by Kearney Dep. CJ in Avia Aihi v The State [1981] PNGLR 81 at pp 90-92 and later developed by him in SCR No 2 of 1981; Re s 19(1)(f) of the Criminal Code [1982] PNGLR 150 p 157, 158. In these judgments Kearney Dep. C.J. asserted that there was no reason for the Courts to limit the words ‘such other orders’ by the application of the ejusdem generis rule. Implicitly Kearney Dep. CJ rejected Kapi J.’s view that the expression "justice" meant only justice "accordingly to law."
We agree that the preponderance of opinion, from case authority, as we shall demonstrate, now establish, as indeed we restate, the wider, fair and liberal and purposive interpretation of s 155(4), that will achieve meaningful dispensation of justice.
In The State v The Independent Tribunal Ex Parte Sasakila [1976] PNGLR 491, at 505 Kearney, J (as he then was) said:
"It is clear that this Court has power to review by certiorari the Tribunal’s decision and recommendation, to ensure that it kept within its powers and observed the law in that which it did. Constitution ss 60, 155(4) and Sch 2.4 enlarge the scope of certiorari beyond that which it has in the common law of England, and enable the thickets of technicality and inconsistency to be cut away, with the beneficial result that the laws concerning judicial control is not bedevilled by complex restrictive procedures and practices."
We too agree with the injunctions of the Constitutional Planning Committee in the Final Report, which point against the Court taking a "narrowly legalistic" or "literal" approach to interpretation and thus sacrificing the "spirit for the letter of the Constitution." The "dynamic character" of the Constitution is emphasised; and in interpreting the laws, the judges are urged to use "judicial ingenuity" in appropriate cases to do justice.
In Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80, Frost CJ also had occasion to consider the ambit of s 155(4), in the following circumstances we quote from the head note:
"In an action for damages estimated at K565,800 for breach of contract, the plaintiff sought an interlocutory judgment restraining the defendant from remitting out of the jurisdiction the sum claimed, such sum to be deducted from compensation payable to the defendant by the Government of Papua New Guinea for the acquisition of its assets in Papua New Guinea pursuant to s 18 of the Palm Oil Industry (Biala Project Re-Organisation) Act 1976, there being no other assets of the defendant available in Papua New Guinea for satisfaction of judgment should the plaintiff be successful in its action, and it being feared that all compensation moneys would be repatriated by the defendant to Japan, and there being no reciprocal legislation for enforcement of judgments with that country. It also appeared that the plaintiff’s financial position was such that it was unable to give an undertaking as to damages.
Held
(1) The principles of equity under which interlocutory injunctions are granted are applicable and enforceable as part of the underlying law of Papua New Guinea under the Constitution s 20 and Sch 2.2;
(2) One of the principles of equity in relation to injunctions is that an injunction is not available to restrain a man who is alleged to be a debtor from parting with his property.
(3) Accordingly, an interlocutory judgment was not available on the principles of equity so adopted as part of the underlying law.
(4) Section 155(4) of the Constitution, however, given its fair and liberal meaning as required by the Constitution Sch 1.5(2), extended to jurisdiction as well as procedure, and enables a court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the order exists under the principles of common law and equity.
(5) In deciding whether or not a particular order is under s 155(4) of the Constitution: necessary to do justice as between the parties" full regard must be given to the balance of considerations affecting each party.
(6) In the circumstances the plaintiff was entitled to the order sought, pursuant to s 155(4) of the Constitution.
(7) The power to require an undertaking as to damages is within the grant of power under s 155(4) of the Constitution to make orders in such circumstances as to the Court seems proper.
(8) In the circumstances, no order should be made requiring the plaintiff to provide adequate security for the undertaking as to damages."
Chief Justice Frost said at p 85:
"It is plain that s 155(4) cannot be taken so far as to enable a court to make a final decision upon the circumstances of a particular case without regard to the principles of law or equity applicable for its determination.
However, I do not consider that the power to make "such other orders as are necessary to do justice in the circumstances of a particular case" can be confined to matters of procedure only. Giving the words their fair and liberal meaning as required by the Constitution, Sch 1.5(2) the provision in my opinion, extends to jurisdiction also, and enables a court to make an order in the nature of an interlocutory injunction, if the requirements of the section are met, even although no jurisdiction to make the orders exists under the principles of common law or equity. The express reference "to the circumstances of a particular case," in my opinion, leave no room for a more restrictive construction to be adopted."
In SCR No. 2 of 1981; Re s 19(1)(F) of the Criminal Code (supra), Kearney Dep. C.J said at p. 158:
"I might add that I agree with Pratt J. that there is no reason why the term "other orders" referred to in s 155(4) should be construed ejusdem generis with "orders in the nature of prerogative writs". That was also I think the view of Frost CJ in Mauga Logging (supra) at p. 85. The linking phrase is "such as"; this is to be read as a phrase and given its ordinary meaning, which does not connote any referral back to a category of orders already described. Provided the "other orders", of an adjectival character and within judicial power to make, are properly characterised as "necessary to do justice in the circumstances of (the) particular case," the court is competent to make them".
Pratt J. said at p. 174:
"I do not think however there is any justification for restricting the words "and such other orders" appearing at the end of the subsection to orders of a nature similar to those covered in the prerogative writs. The words themselves are plain enough and, as Frost CJ points out in Mauga Logging Company Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80 at p. 85, should be given their "fair and liberal meaning".
Bredmeyer J. in Aundak Kupil & Kauke Kensi v The Independent State of Papua New Guinea [1983] PNGLR 350, in proceedings to recover damages for personal injuries as a result of a motor vehicle accident where both plaintiffs were rendered paraplegic with a life expectancy of 5 years, held that:
His Honour referred to the cases of Mauga Logging Co. Pty Ltd (supra), Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329 and Avia Aihi v The State (supra), amongst others, which discussed the ambit of the power under s 155(4) at p 384 and said:
"These cases have decided that the latter words are disjunctive from the former, that is that the latter orders do not have to be in the nature of prerogative writ.
The section encompasses remedies, adjectival and procedural orders. It enables the courts to tailor its remedies to the circumstances of an individual case to ensure that the primary rights of a party are protected. The section has been used to justify a Mareva injunction and a declaration of right. I consider it could be used to justify the arrest of a ship on the issue of a writ, an Anton Pillar order, and the issue of a writ and the entry of judgment in a foreign currency ....."
His Honour concluded at p. 385:
"The Supreme Court and the National Court should not hesitate to use s 155(4) to make new law on occasions and on other occasions to declare parts of the English common law and equity inapplicable and inappropriate to the circumstances of Papua New Guinea under Constitution Sch.2.2."
From the foregoing body of decided cases and the constitutional injunctive of Sch. 1.5 to give fair and liberal meaning to provisions, words and expressions of the Constitution, and in particular s. 158 "to give paramount consideration to the dispensation of justice," in such interpretation, we re-affirm the preponderance of judicial opinion that s. 155 (4) should be interpreted purposively to enable and empower the courts to tailor their remedial orders as are necessary to do justice in the circumstances of the particular case.
We note that the ambit of the inherent power under s 155(4) have been liberally interpreted to include the following:
"To Do Justice In the Circumstances of a Particular Case."
In our opinion, "justice" does not mean only "justice according to law." This is unfortunately a narrow interpretation that can produce "unjust" results. There is really no justification for importing into this generic and liberally used expression or concept the strict limitations of "according to law." These latter words have obtained a narrow legalistic meaning. One of the basic tenets of statutory interpretation is to give to ordinary words their plain ordinary meaning, unless to do so would amount to ambiguity or absurdity. The expression "justice" is a generic concept, which in its most basic meaning connotes "fairness" and "equity". It has to do with "moral principles by which actions are determined as just or unjust, fair or unfair".
The other basis for not interpreting or importing into the plain expression "justice" the extra phrase "according to law", which has narrow legal definition, is the obvious fact that if the legislature intended that the concept of "justice" was to mean "justice according to law", then all it needed to do was to add that expression. It is indeed an expression used by the legislature, in s 37(15), in contradistinction to the general concept "justice" which is also used in other parts of the Constitution such as ss 37(22), 42(b), 59, 60 and 62 amongst others. To add the phrase "according to law" is a clear example of judicial legislation, which in the context of s 155(4) is not justified.
"The Circumstances Of This Particular Case."
The circumstances of this case are such that orders for penalties other than dismissal from office should be recommended. The fact that the Tribunal could only make recommendations to the Head of State as to the appropriate penalty should not pose a procedural impediment. We do not believe that the inherent power vested in this Court should be so construed as to deny this Court the ability to tailor the remedial orders as are necessary to do justice in the circumstances of this case.
We believe the substantial reduction in the number of determinations of misconduct in office from 24 to 7 per se has diminished the seriousness of the culpability of misconduct. The fact of the totality of the circumstances of misconduct being reduced by 17 distinct findings of misconduct has reduced the total incidences of misconduct, in our opinion.
Whilst each individual determination of misconduct was penalised by the highest penalty of dismissal from office, and in principle could be said to be able to be sustained we are not persuaded. We are not so persuaded that the individual determinations, standing completely alone, could be so serious in culpability that the only penalty warranted is dismissal from office.
The power to examine the circumstances and the orders made, so as to tailor the remedial orders to do justice in the circumstances of the particular case, in our view, is similarly not to be limited to the traditional judicial review basis for grant of review, such as excess of jurisdiction, error in exercise of discretion or unreasonableness in the common law Wednesbury sense.
We believe the power to fashion a remedial order "to do justice in the circumstances of a case," gives wide discretion to this court. It means, in our view, this court is invested with unfettered discretion to fashion orders that will "do justice," that is that which is just and fair.
We consider that the Tribunal had erred in its determinations of penalties. We do not consider that each of the 7 remaining determinations of misconduct were so serious in culpability that each warranted dismissal from office. We believe some of the generalised remarks of the Tribunal manifest errors in taking such matters into account adversely against the applicant, which were not justified. The Tribunal said this in its recommendation on penalty:
"This Tribunal cannot ignore what has gone on around us over the past years which has led to serious financial problems facing the country. These problems can only emanate from the mishandling of the public monies. So if the failure to follow the stringent financial procedures and the careless application of public monies is symptomatic of the wider problem, then this deserves serious censure."
These are general remarks without evidentiary basis. The financial management of the nation was not in issue. The Tribunal was concerned with misconduct by the applicant as a leader, not perceived financial management affairs of the country, nor as to the basis for any perceived concerns. We consider the Tribunal had erred in addressing this issue and considered it had to penalise the applicant to make an example of him.
The Tribunal also made the following remarks in respect of count 29, which has been quashed by the Court, but they are indicative of the error the Tribunal fell into in determining the appropriate penalties to be recommended. It said:
"Count 29 may not appear to be as serious a charge as the counts which involve the use and application of public money being as it is a count reflecting the ability of the leader in respect to his private interests. However, in view of the range of other counts, which has been before this Tribunal, we feel that this count should be dealt with in similar vein to the other counts. We therefore recommend dismissal on Count 29."
This is manifest error. The individual counts must be penalised according to the seriousness of the culpability of conduct, and not by a generalised association with each other. It seems to suggest that because one or some counts would in fact warrant dismissal from office, the others like count 29 should nevertheless be dealt with in similar vein, simply to render uniformity. We believe this error has manifested itself in all the 24 determinations of misconduct being penalised by dismissal from office.
We are mindful that where the Tribunal acted within the law this Court should indeed be reluctant to interfere with its decision. The law for this purpose is s 28 of the Constitution, which says:
"1A. An organic Law may provide that where the Independent Tribunal finds that:
(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and
(b) public policy and the public good not require dismissal,
it may recommend to the appropriate authority some other penalty provided for by law be imposed."
The Tribunal was bound to recommend dismissal because it had determined that there was serious culpability on the part of the leader. We consider however, that after the decision of this Court the culpability of the leader has been considerably lessened. It has been lessened in respect of range, number and extent so that serious culpability no longer exists. Further, we have determined in the majority of the determinations relating to charges laid under s. 27 of the Constitution that, though the leader was guilty of failing to comply with proper procedures, large sums of money were in fact applied for public benefit. In view of this we consider it unmeritorious to suggest that this Court is deprived of jurisdiction to correct any injustice caused to the leader. The Supreme Court, as the highest court of the land has inherent power under s 155(4) to make such "orders as are necessary to do justice in the circumstances of a particular case". The circumstances here justify the court exercising that power.
The Tribunal had by law alternative penalties available to it. They are provided in s 2 of the Leadership Code (Alternative Penalties) Act.
"2. Alternative Penalties
The penalties that may be recommended and imposed under and for the purposes of Section 28(1A) of the Constitution and Section 27(5)(b) of the Organic Law are that the person found guilty of misconduct in office;
(a) be fined an amount fixed by the Tribunal, not exceeding K1,000.00; or
(b) be ordered by the appropriate authority to enter into his own recognisance in a reasonable amount, not exceeding K500.00, fixed by the Tribunal that he will comply with Division III.2 (Leadership Code) of the Constitution and with the Organic Law during a period fixed by the Tribunal, not exceeding 12 months from the date of the announcement, under Section 27(6) of the Organic Law, of the decision of the Tribunal; or
(c) be suspended, without pay, from office or position for a period not exceeding three months from the date of commencement of the suspension; or
(d) be reprimanded,
or if he is a public office-holder as that expression is defined in Section Sch. 1.2(1) of the Constitution, that, as determined by the tribunal -
(e) he be reduced in salary; or
(f) if his conditions of employment are such as to allow of demotion - he be demoted."
We consider that after this court’s decision, the recommendation for dismissal cannot stand. We also consider that recommendation for entering into recognisance, suspension, reprimand, reduction in salary and demotion are irrelevant. We consider that fine is more appropriate in the circumstances.
We would therefore quash the recommendation to dismiss the leader on all the seven counts. We would recommend instead a fine of K1,000 on each count totalling K7,000.00.
Lawyer for the applicant: Allen Arthur Robinson Lawyers.
Lawyer for the State: Solicitor General.
Lawyer for the Ombudsman Commission: Ombudsman Commission.
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