Papua New Guinea Law Reports - 1980
[1980] PNGLR 500
SC188
PAPUA NEW GUINEA
[SUPREME COURT OF JUSTICE]
IN THE MATTER OF A REFERENCE UNDER S. 18(2) OF THE CONSTITUTION BY A TRIBUNAL APPOINTED UNDER S. 27(7)(E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP. AND IN THE MATTER OF JOSEPH AUNA
SUPREME COURT REFERENCE NO. 5 OF 1980
Waigani
Kidu CJ Kearney DCJ Greville Smith Andrew Miles JJ
1-2 December 1980
CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Leadership Code - Misconduct in office - Person must be holder of an office to be dealt with - Organic Law on Duties and Responsibilities of Leadership, s. 27(7)(e) - Constitution, s. 26(1).
STATE SERVICES - Public service - Leadership Code - Misconduct in office - Person must be holder of an office to be dealt with - Organic Law on Duties and Responsibilities of Leadership, s. 27(7)(e) - Constitution, s. 26(1).
A person to whom the Leadership Code applies pursuant to s. 26(1) of the Constitution may only be dealt with by a Tribunal constituted under s. 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership, for misconduct in office whilst he is the holder of an office to which the Code applies; it need not be the office which was the subject of investigation into alleged misconduct: he cannot be so dealt with when he no longer occupies an office to which the Code applies.
Reference
This was a reference to the Supreme Court pursuant to s. 18(2) of the Constitution, which provides that where any question relating to the interpretation or application of any Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal may refer the matter to the Supreme Court. The questions which were referred by a Tribunal established pursuant to s. 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership, are set out fully at pp. 501-502.
Counsel
L. Gavara Nanu, for the Public Prosecutor.
S. Cory, for Joseph Auna.
Cur. adv. vult.
2 December 1980
KIDU CJ KEARNEY DCJ GREVILLE SMITH ANDREW MILES JJ: Mr. Joseph Auna was the Executive Director of the National Investment and Development Authority (NIDA) from 2nd December, 1976, until 24th July, 1980, when his term appointment expired.
On 25th July, 1980 the National Executive Council decided to appoint Mr. Auna as Ambassador to the Kingdom of Belgium and the EEC/ACP.
It is common ground that the office of Executive Director of NIDA is an office to which the provisions of the Leadership Code apply; see s. 26(1)(g) of the Constitution of the Independent State of Papua New Guinea.
It appears that the Ombudsman Commission, carrying out its statutory function under Pt. 3 of the Organic Law on the Duties and Responsibilities of Leadership, had been investigating certain alleged misconduct in office of Mr. Auna, during his term as Executive Director of NIDA. The Commission satisfied itself that there was a prima facie case that Mr. Auna had been guilty of misconduct in office; and pursuant to s. 29(1) of the Constitution on 21st August, 1980, referred the matter to the public prosecutor.
As at 21st August, Mr. Auna’s appointment as “Ambassador Designate”, as it has been termed before us, was still current; however, on 27th August the National Executive Council decided to revoke it.
The public prosecutor considered the matter referred to him, and decided that it should be proceeded with. On 26th September a Tribunal was constituted under s. 27(7)(e) of the Organic Law. On 30th September, pursuant to s. 27(2) of the Organic Law, the public prosecutor referred the matter to the Tribunal for inquiry. On the same day, he notified Mr. Auna, and drew to his attention that because the matter stood referred to a Tribunal, Mr. Auna was automatically suspended from duty under s. 28 of the Organic Law.
Before us, it became clear that the public prosecutor was not aware on 30th September that Mr. Auna’s ambassadorial appointment had been revoked by the National Executive Council on 27th August.
The Tribunal commenced its inquiry into the matter on 22nd October. Mr. Auna took the point that the Tribunal had no jurisdiction to carry out the inquiry. Following argument, the Tribunal decided, pursuant to s. 18(2) of the Constitution, and in a reference which sets out most usefully the facts and reasons, that the following questions should be referred to this Court:
“Does the Tribunal have jurisdiction to hear and determine a reference where the holder of an office under s. 26(1) of the Constitution is:
(1)      no longer occupying the office which was the subject of investigation into alleged misconduct, at a time:
(a)      before the reference by the Ombudsman is forwarded to the Public Prosecutor,
(b)      between the time the reference by the Ombudsman Commission is forwarded and action is instigated under s. 29 of the Constitution,
(c)      between the time of the reference under s. 29 of the Constitution and the appointment of the Tribunal,
(d)      between the date on which the Tribunal is appointed and the commencement of hearing by the Tribunal,
(e)      between the date of hearing and the date of judgment by the Tribunal;
(2)      no longer the holder of the office which he occupied at the time of alleged misconduct but is the holder of another office within the meaning of s. 26(1) of the Constitution, (i.e. at a time):
(a)      before the reference by the Ombudsman Commission is forwarded to the Public Prosecutor,
(b)      between the time the reference by the Ombudsman Commission is forwarded and action is instigated under s. 29 of the Constitution,
(c)      between the time of the reference under s. 29 of the Constitution and the appointment of the Tribunal,
(d)      between the date on which the Tribunal is appointed and the commencement of hearing by the Tribunal,
(e)      between the date of hearing and the date of judgment by the Tribunal.”
The questions were fully argued before us yesterday. In general terms, there are two questions. First, is a person liable to be dealt with under the Leadership Code after he ceases to hold the office in which it is alleged he misconducted himself? Second, is the answer any different if he later assumes a second office to which the Leadership Code applies?
Mr. Gavara argued that Mr. Auna remained subject to the Leadership Code after he had ceased to hold office as Executive Director of NIDA; and that the Tribunal had jurisdiction to inquire into his alleged misconduct while in that office.
In essence, his arguments were as follows. The duties imposed on persons subject to the Leadership Code are set out in s. 27 of the Constitution. Section 27(2) reads as follows:
“(2)    In particular, a person to whom this Division (i.e. the Leadership Code) 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)” (Emphasis mine.)
The words “carrying out or has carried out” indicate that sub-s. (2) was directed both at persons holding office and those who had ceased to hold the office. It is clear that the existence of misconduct might not come to light, until the person had ceased to hold office. An investigation necessarily takes time; it would be against the clear intent of the Leadership Code to interpret it so as to enable a person to escape its provisions, for example, by resigning his office when he learns an investigation is under way. A Tribunal’s jurisdiction is created as soon as the Ombudsman Commission “is satisfied that there is a prima facie case that a person has been guilty of misconduct in office”, pursuant to s. 29(1) of the Constitution; and cannot thereafter be lost. The words “has been” in s. 29(1) also point to past misconduct.
Dealing with the argument that s. 28 of the Constitution contemplates dismissal from office as the maximum punishment for a person found guilty of misconduct in office, and that this implies that the person must necessarily be still in office at the time of the Tribunal’s decision, Mr. Gavara pointed to s. 31 of the Constitution which imposes various disqualifications on persons dismissed from office, for a period of three years after the date of dismissal; and also, to s. 35 of the Organic Law. He submitted that these provisions indicate that the Code is not directed merely to persons actually holding the necessary leadership office.
Section 35 of the Organic Law is as follows:
“35.    A person to whom this law applies (i.e. all persons holding the offices specified in Section 26(1) of the Constitution) who, without the approval of the Ombudsman Commission, within three years after ceasing to be such a person accepts or holds a directorship, consultancy or any other prescribed position with a foreign enterprise, is guilty of an offence.
Penalty: K1000.00 or imprisonment for 12 months.” (Emphasis mine.)
Mr. Cory argued as follows. The object of the Leadership Code in the Constitution, and the supporting Organic Law, is to ensure that a leader who misconducts himself in an office is dismissed from that office, unless what he has done is found to be not seriously culpable and not such as, in the public interest, to require dismissal; see ss. 28(1)(g)(ii) and 28(1a) of the Constitution. The major punishment provision presupposes that the offending person can be dismissed from his leadership office— that is, it presupposes that he is currently holding that office when the Tribunal decides the matter.
Mr. Cory conceded that if a person currently held a leadership office, a Tribunal could conduct an inquiry into alleged misconduct of that person in some earlier leadership office he had held; and a finding of guilt could found a recommendation that he be dismissed from the leadership office he currently held. However, Mr. Cory submitted that Mr. Auna did not fall into this category, because he was never an ambassador. The office of ambassador is subject to the Leadership Code (see ss. 26(1)(j) of the Constitution); but Mr. Auna had no letters of credentials, had never presented them, nor had they been accepted by the country to which he was to be appointed. In other words, a person designated to be an ambassador, is not yet an ambassador. In any event, Mr. Cory submitted, Mr. Auna’s appointment to that office had been terminated before this Tribunal was constituted and before the public prosecutor had referred the matter to the Tribunal for inquiry.
Mr. Cory referred to various passages in the Final Report of the Constitutional Planning Committee, as supporting the interpretation which he advanced; see pars. 3/5/38, 3/8/64, 3/12/94 and 3/12/97 of the Report. Section 28(4) of the Constitution contemplates suspension from office pending investigation by the Ombudsman Commission, and Mr. Cory relied on this as indicative that the thrust of the Code was towards persons holding office.
These, broadly, were the arguments presented to the court.
We are of opinion that the Leadership Code is directed to persons actually holding an office as specified in s. 26 of the Constitution; and that, as the Tribunal put it in this case, “the entire thrust of the legislation is directed towards removing a person who is considered, after due inquiry, to be unworthy of continuing in office”. All the provisions of the Constitution and the Organic Law are consistent with, and support, that conclusion. Once the primary purpose of the legislation is clear, it is not anomalous that a person, having ceased to hold any of the designated offices, becomes immune from proceedings under the Leadership Code in respect of any alleged misconduct in office, during the time he held office. The purpose is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and, if found guilty, dismissed from his current office.
Section 35 of the Organic Law is an example of an offence which may be committed by a person no longer subject to the Leadership Code; the creation of such offences is founded upon s. 28(1)(e) of the Constitution.
It is to be noted that s. 28(1)(h) of the Constitution provides that an Organic Law: “may make any other provision that is necessary or convenient for attaining the objects of this Division.” Yet nowhere in the Organic Law is there any suggestion that a leader who has left office remains subject to the Code in respect of any misconduct in office. The only specific provision dealing with such persons, is s. 35.
The major punishment, for a person found guilty of misconduct in office, and a matter which must be considered by the Tribunal following such a finding, is dismissal from office; s. 28(1)(g)(ii) of the Constitution. The inference is irresistible that the person the subject of the inquiry must be the holder of an office subject to the Code, at the time the Tribunal makes its decision.
The reference in s. 29 of the Constitution to a “prima facie case that a person has been guilty of misconduct in office” does not carry with it any necessary connotation that the person involved may have left office. It does not bear on this point.
It is true, on the view we take, that in the absence of legislative provision under s. 26(3) of the Constitution, which may well be impracticable, a leader who resigns from office before a finding of misconduct in office is made, is not subject to the disqualifications on dismissal which flow from s. 31(1) of the Constitution. By itself, however, that anomaly is not sufficient to change the otherwise consistent thrust of the legislation. It is clear from the view we take that if any such leader assumed another leadership office, any proved misconduct in his earlier office could result in his being dismissed from his later leadership office.
The definition of “person to whom this law applies” in s. 1 of the Organic Law carries a clear connotation that it refers only to current office holders; and later provisions of the Organic Law referring to such persons all clearly contemplate that they are in office, and are quite inconsistent with any view that the phrase embraces persons who have ceased to hold office.
The reference to suspension from duty in s. 28 of the Organic Law, points to a person currently in office.
It is unnecessary to decide, on the facts of this reference, whether an “ambassador designate” is an “ambassador” within the meaning of s. 26(i)(j) of the Constitution, as Mr. Auna’s position is met by the answer to Question 2(a) below.
In accordance with the view we take, we would answer the questions referred as follows:
“Question 1(a) to 1(d): No
Question 1(e): No, although the Tribunal has jurisdiction until the holder of the office no longer occupies the office.”
Provided Question 2 is clarified by deleting “no longer ... Constitution” and substituting “not at any time within the respective periods mentioned below the holder of the office which he occupied at the time of the alleged misconduct but is or becomes within those respective periods the holder of another office within the meaning of s. 26(1) of the Constitution, that is:
“Question 2(a): Yes, provided he continued to hold that other office at the date of judgment by the Tribunal
Question 2(b), 2(c), 2(d) and 2(e): These questions should not arise because the Ombudsman Commission has power only to investigate and refer misconduct in office by a person then currently the holder of some office subject to s. 26(1) of the Constitution.”
Questions answered accordingly.
Solicitor for Joseph Auna: S. Cory.