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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
O.S. No. 272 of 2001
BETWEEN:
PETER IPU PEIPUL
AND:
SHEEHAN .J., MR ORIM KARAPO and MR IOVA GEITA
(Constituting the leadership tribunal)
First Defendant/First Respondent
AND:
OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Defendant/Second Respondent
AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant/Third Respondent
WAIGANI: DAVANI .J
2002: 4, 15 March
CONSTITUTIONAL LAW – Organic Law on the Duties and Responsibilities of Leadership (‘OLDRL’)– Leadership Code – Referral to the Public Prosecutor and the Tribunal – Ombudsman's Commissions investigations and referrals – Leader dismissed, subsequent application to National Court for leave for Judicial Review – Leave refused, subsequent Appeal to Supreme Court – leave for Judicial Review granted.
JUDICIAL REVIEW – Determination by Leadership Tribunal – Error of law of on the face of the record – misconduct in office, there need not be an element of personal gain – directions need not issued before misconduct is found – provisions of Constitution and any act of Parliament must be given fair and liberal interpretation – whether disclosure of wrongdoing by plaintiff is sufficient rectification
ss. 27(1) (a) (b) (c) (d), 27 (2), 27 (4) and 27 (5) of the Constitution
s. 6 (1) (2) (3) of OLDRR
s. 15 of OLDRL
- Want of Jurisdiction – interpretation and application of a Constitutional law – Supreme Court correct arena – Supreme Court has original jurisdiction
s. 18 of the Constitution
- Review in National Court – Matters to be raised at review are only those that were raised at the tribunal hearing
- Unreasonableness – An authority or Tribunal must act as a reasonable person would act
- Severity and Penalty – Variation of Tribunals penalty only if all mitigating factors were not considered by tribunal
Papua New Guinea Cases cited;
Nilkare v Leadership Tribunal (No. 2) SCA 46 OF 1996 decided in April 1997
Supreme Court Reference No. 1 of 1978 in Re: Leo Morgan
Wakon v Ombudsman Commission OS No. 427 of 2001 29.08.01
Counsel:
A. Jerewai and L. Tilto for the plaintiff
D. Cannings for the second defendant
J. Kawi for the First and third defendant
15 March 2002
DECISION
DAVANI J: This is an application for judicial review seeking an order for a Writ of Certiorari to quash the decision of the Leadership Tribunal, the First Defendant, of the 10th of April and 19th of April, 2001, which decision respectively were the entering of a guilty verdict, and a verdict on penalty, in relation to five charges preferred against the Plaintiff for misconduct in office such charges having been laid under the Leadership Code (the "Code"), and the Organic Law on Duties and Responsibilities of Leadership ("OLDRL").
The Charges
The five (5) charges or allegations and the decisions in relation to each allegations are summarised as follows:
1. Allegation:
The plaintiff allowed his integrity to be called into question by making an improper submission to the National Executive Council (‘NEC’) which did not disclose the fact that the person whose appointment he was promoting was his brother; then participating in the NEC meeting; and then subsequently, engaging in nepotism thereby breaching Sections 27(1), 27(2) and 27((5)(b) of the Constitution.
Decision:
Guilty of misconduct in office. The facts of this charge were proven beyond doubt in that the leader deliberately sought to take advantage of the difference in names to conceal his efforts to arrange his brother’s appointment.
2. Allegation:
The Plaintiff failed to reveal to the Second Defendant and appropriate authorities the nature and extent of the interest of an associate in a matter with which he had to deal with in his official capacity, and then dealing with that matter without good faith etc. thereby breaching Section 6(1) and 6(2) of the OLDRL.
Decision:
Guilty of misconduct in office. The Tribunal found that the Plaintiff did not reveal his interest to the Second Defendant and that he took measures to inform the second Defendant only after the NEC had ratified Moses Tawa’s appointment and when there was an outcry. The Tribunal found that evidence from the Secretary to the NEC, Winnie Kiap, confirmed that the Plaintiff was present at the meeting of the National Executive Council on 16 December 1998 that decided on the appointment of his brother.
3. Allegation:
The Plaintiff failed to make a disclosure of his indirect beneficial interest in a matter he proposed to speak and vote on at a meeting of the NEC thereby breaching Section 15 (5) of the OLDRL.
Decision:
Guilty of misconduct in office. The Tribunal did not accept that the leader made a disclosure of personal interest prior to speaking or voting on the appointment of his brother at the National Executive Council meeting of 16 December 1998.
The Plaintiff allowed his integrity to be called into question etc. by not complying with the second defendant’s request and proceeding to improperly arrange the revocation and Immediate reappointment of his brother, thereby violating the constitutional requirements of consultation and (again) improperly participating in a meeting of the NEC that decided on the appointment of his brother, thereby Sections 27(1), 27(2) and 27(5) (b) of the Constitution.
Decision
Guilty of misconduct in office. The Tribunal found that there had been no proper consultation with the Permanent Parliamentary Committee on Appointments and that the Plaintiff had violated the provisions of the Constitution that determine the appointment procedure for constitutional office holders, in particular the need for proper and adequate consultation.
The Plaintiff failed to reveal to the Second Defendant and Parliament, the nature and extent of an associate’s interest in a matter in which he dealt within his official capacity and that he dealt with that matter without good faith, thereby breaching sections 6(1) and 6(2) of the OLDRL.
Decision
Guilty of misconduct in office. It was found that he concealed the appointment and immediate reappointment of his brother without disclosing that to the second defendant, although he had disclosed the first appointment of his brother to the second defendant.
Brief Facts
The brief facts giving rise to this appeal is that the Plaintiff was charged by the Second Defendant with five (5) serious counts of alleged misconduct in office, which I have set out above. Briefly, the allegations arose from the plaintiff’s appointment, revocation and re-appointment of his own blood brother, Moses Tawa to the position of Member of Public Services Commission, when at the relevant time, he was the Public Service Minister and therefore a leader within the meaning of the Code.
A Leadership Tribunal (the first defendant herein) was constituted to hear the charges of misconduct, found the plaintiff guilty on all five (5) counts, then recommended his dismissal from office by way of penalty.
The Plaintiff then sought a judicial review of the decision to recommend his dismissal. On the 5th of May 2001 His Honour Justice Kandakasi refused his application for leave. The Plaintiff then appealed to the Supreme Court, which court upheld his appeal and granted him leave to apply for Judicial Review. The matter was then reverted back to the National Court for the application for Judicial Review to be prosecuted. This is the application.
Background
For purposes of clarity, I set out a brief chronological background to this matter.
7 August 2000 – the Second Defendant referred the Plaintiff to the Public Prosecutor. The Plaintiff was at that time the Deputy Leader of Opposition and a person to whom the Leadership Code applied.
26 February 2001 – The Public Prosecutor referred the matter to a leadership tribunal appointed under the OLDRL by the Chief Justice, now the first defendant named herein.
· 27 and 28 February, 1 March and 1, 2, 3 and 5 April 2001 – the first defendant investigated and made due inquiry into the matter referred to it;
· 10 April 2001 – the first defendant announced its decision that it had found the plaintiff guilty of five allegations of misconduct in office;
· 11 April 2001 – the first defendant heard submissions on penalty;
· 19 April 2001 – the first defendant announced its decision to recommend that the Plaintiff be dismissed from office;
· 27 April 2001 – leave application for judicial review filed;
· 16 May 2001 – leave application argued before Kandakasi J;
· 21 May 2001 – The Plaintiff dismissed from office by the Governor-General;
· 25 May 2001 – Kandakasi .J handed down a judgement refusing leave;
· 29 June 2001 – The Plaintiff filed appeal to the Supreme Court against Kandakasi J’s judgement refusing leave;
· 1 November 2001 – Supreme Court upheld the appeal, granted leave for judicial review and remitted the matter to the National Court for hearing.
Principles Governing Application for a Judicial Review
Judicial Review does not concern itself with the reasoning of the sub-ordinate authority with a view to substituting it with the Courts own decision, rather it is concerned with the decision making process, and not the decision itself. It is concerned about fairness of procedure and fair hearing.
The circumstances under which Judicial Review is available are where the decision making authority.
(a) Lacks power to make the decision;
(b) Exceeds or abuses its power;
(c) Commits an error of law;
(d) Breaches the principles of natural justice;
(e) Arrives at a decision which no reasonable tribunal would have reached;
(f) Takes into account irrelevant considerations in its decision making process;
(g) Failed to take into account relevant considerations in its decision making process.
Grounds for Judicial Review
In this case the plaintiff relies on the following grounds in this Application for Judicial Review:
(a) There is an error of law on the face of the Record.
(b) Want of Jurisdiction.
(c) Unreasonableness under the Wednesbury Principles.
(d) Severity of Penalty Imposed.
The Plaintiff abandoned the grounds of Bias and Standard proof on the morning of the hearing.
Submission on Grounds
1. Ground 1 – Error of Law on the Face of the Record
I note that the first and second grounds of Judicial Review relate to an interpretation and application of Sections 27(1)(a)(b)(c)(d); 27(2) and 27(5)(b) of the Constitution, Sections 6(1)(2) and (3) of the OLDRL and Section 15 of the OLDRL.
1. (A): Section 27
It is claimed that the tribunal erred in its interpretation and application of Section 27 of the Constitution in two respects. First in sub-ground 1(a)(i) it is said that for misconduct in office to be proven under Section 27 there has to be an element of "personal gain". Secondly in sub-ground 1(a)(ii) it is argued that the Second Defendant must give a direction under Section 27(4) of the Constitution before misconduct can be found under any of the other provisions of Section 27.
Threshold issues
Firstly, I will deal with the threshold issues raised by both Defendants being firstly, that the Plaintiff is estopped from raising the various subgrounds because these issues were not raised at the tribunal hearing;
i. - Subground 1a(i) - For misconduct in office to be proven under section 27 of the Constitution, there has to be an element of "personal gain."
· ii. - Subground 1(a)(ii) - that the second Defendant must give a direction under s.27(4) of the Constitution before a misconduct can be found under any of the other provisions of s.27;
· iii. - secondly, that this court does not have jurisdiction to deal with interpretation of constitutional provisions, as provided by s. 18 of the Constitution;
· iv. - The other ground raised by both Defendant’s counsel is that the Plaintiff is precluded from raising s. 15 of the OLDR as a ground of review as this was not raised at the tribunal hearing.
In relation to the s. 27 arguments raised by the Plaintiff, His Honour, Kandakasi J, in refusing leave, was faced with this dilemma. His Honour relied on appeal cases for the proposition that a party is precluded from raising on appeal, matters not taken up or raised before the lower Court.
His Honour said:
"It is incumbent on a plaintiff for him to raise all the necessary issues. If he fails to do that, then by that conduct he is telling the decision-maker that there is no issue on matters not specifically raised by them. If for whatever reason a plaintiff fails to raise an issue or point before the decision maker and draw to the decision-maker’s attention the relevant facts and issues, he is estopped by his conduct from raising them for the purposes of getting a judicial review. The reason for this is simple. Judicial review is about fairness of procedure and a fair hearing. Therefore, before a plaintiff can be allowed to complain of unfairness to him, he must in fairness put all the issues to the decision-maker first before making such a complaint".
In this case, the Plaintiff did not raise this ground before the Leadership Tribunal. Proceedings in an application for Judicial Review is about fairness of procedure and fair hearing. If these matters were not raised at the tribunal hearing, they should not be raised now in a Judicial Review. I say this because what is being reviewed is the decision making process and in so doing, this court must consider all that was raised at the Tribunal hearing. Grounds that were not raised at the Tribunal hearing, should not be raised at the Review hearing. The Review hearing is akin to an appeal hearing although not the same.
The s. 15 (OLDRL) arguments, I find should not be raised by the Plaintiffs, the reasoning being the same as the first threshold ground raised by the Defendants.
I find that the Plaintiff is estopped from raising those grounds in a Judicial Review Application in the National Court.
With regard to the second threshold issue, it raises arguments relating to the interpretation and application of a Constitutional law. Although Defendant’s counsel did not raise it as a threshold issue, it will be dealt with as such. The law is specific that matters relating to the interpretation and application of Constitutional laws are solely within the jurisdiction of the Supreme Court. Section 18 of the Constitution states that only the Supreme Court is given "original jurisdiction, to the exclusion of other Courts, as to any question relating to the interpretation or application of any provision of a Constitutional law". That is the law and cannot be changed unless amended by Parliament.
The interpretation of a Constitutional provision falls within the domain and jurisdiction of the Supreme Court. The National Court does not have jurisdiction to deal with matters relating to interpretation and application of a Constitutional law or provision. Consequently this Court should not consider this ground as it has no jurisdiction to do so.
Having said that, strictly speaking, I should not proceed to addressing the grounds raised by the Plaintiff. However, I will do so as lengthy arguments were raised by all counsel on all grounds and the court will respond to these.
1. (B): Ground 1(a)(i) – personal gain
Section 27 of the Constitution reads;
"27. RESPONSIBILITIES OF OFFICE
(1) A person to whom this Division applies has a duty to conduct himself in such a way, both is 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 interest 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 the 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.
(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.
(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."
The plaintiff submits that the First Defendant tribunal fell into an error when it failed to properly interpret and apply these provisions. The Plaintiff argues that if the tribunal had correctly interpreted the facts of this case, it would have found that the element of "personal gain" as provided in section 27(2) of the Constitution was not proven in that the Plaintiff’s actions in appointing his blood brother to the post of Chairman of the Public Services Commission is not in itself a "personal gain."
The Plaintiff argues that in relation to the 1st and 4th charges of misconduct, the second defendant did not specify the breach committed by the Plaintiff as a leader under Sections 27(1)(a), (b), (c), or (d); 27(2), and 27(5)(b) of the Constitution to then prove or establish a "misconduct."
The Plaintiff argues that because the charges were not specific he could be held liable for any one of the duties imposed under section 27(1) and section 27(1) and 27(2) of the Constitution.
He also argues that there is no evidence of "personal gain" or "transaction" or "enterprise" from which he would enjoy personal gain. He argues that this is an essential element to be proven along with other elements given that the 1st and 4th charges (he submits) are in the most general terms. The Plaintiff submits that the First Defendant ought to have given a liberal interpretation to the provisions of Section 27 of the Constitution, particularly subsections (1), (2), (4) and (5)(b) and have them read as a whole, the result of which he submits, will be that in the absence of any evidence of "personal gain" or "transaction" or "enterprise" these charges would not be sustained.
The plaintiff argues that the first defendant erred in its interpretation of Section 27 (1) of the Constitution when dealing with the Plaintiff, in that the First Defendant should not have charged under those provisions as it is not self-executing.
Plaintiffs counsel urges me to consider section schedule 1.5 of the Constitution (fair and liberal meaning), and Section 158(2) of the Constitution (dispensation of justice).
It is settled law in this jurisdiction that the Constitution and any act of parliament must be given a fair and liberal interpretation as to give effect to the purpose or objective of the legislation or provision in question.
I find that the contention that there must be some "personal benefit" or "personal gain" by the plaintiff before he could make out an offence under section 27 is a very restrictive interpretation indeed and would therefore defeat the entire thrust and purpose of Section 27 as well as the whole Leadership Code. Obviously, section 27, is not restricted to "personal gains" only, as it sets out various offences. The argument that there must be a "personal gain" before an offence can be committed under Section 27 is spurious, misleading and misconceived.
The effect of a clear literal interpretation is that a leader who fails to carry out any of the obligations imposed by subsections (1), (2) and (3) commits a misconduct in office.
It would defeat the purpose of the Leadership Code to require a tribunal to find that there was personal gain in every allegation of misconduct. Furthermore personal gain is an unqualified term. The Leadership Code is intended to cover a broad range of misconduct. Leaders are required to follow proper appointment procedures.
Although the Plaintiff requests a liberal interpretation of these provisions, he in effect is very restrictive in his analysis or interpretation of the provisions in question. In saying that, I note the number of cases decided previously by the courts who have demonstrated or taken a strict approach in judicial review of decisions of leadership tribunals. Sixteen (16) Judicial Review cases were referred to in submission by Second Defendants Counsel. These review applications were all refused by the courts, with one exception, that of Nilkare v Leadership Tribunal (No. 2) SCA 46 of 1996, decided in April 1997.
Again, in the leave Application, Justice Kandakasi made this absolutely clear when he said that if the term "personal gain" as used in Section 27(2) of the Constitution was interpreted and applied in the way argued by the Plaintiff, that term will be restricted to monetary or some tangible gain only. That would defeat the purpose and or aim of having the provisions of the Constitution and the relevant Organic Law.
At this time, I take note of the Solicitor-Generals submissions where he requested that the court remind itself of the purpose of the leadership code more specifically the case, Supreme Court Reference No. 1 of 1978 in Re: Leo Morgan where the Supreme Court held:
"A Leader has a duty not to place himself in a position in which he could have a conflict of interest or might be compromised when discharging his duties, not to demean his office or position, not to allow his public, official or personal integrity to be called into question, not to endanger or diminish respect for or confidence in the integrity of government and not to use his office for personal gain. Again in this connection, we consider that the constitution, in so far as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders, should not be considered as a "penal" statute. In requiring a high standard of behaviour from its leaders than from ordinary citizens, it should not be considered as "penalizing" or "punishing" a leader; but as ensuring in the interest of the safety of the people that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders".
In my view, the intent and or purpose of having the provisions in question was to prevent leaders from using their position and power
for all manner of personal gain howsoever remote that might be. These provisions were made to ensure that leaders do not misuse their
privileges or engage in corrupt practices. They are there to ensure that leaders conduct themselves in a fair and transparent manner.
I am of the view also, that Parliament made no mistake in not putting any qualification to the phrase "personal gain". This was deliberately done to cover all situations, however slight it might be for the integrity of public offices and for good
transparent governance. The aim was to protect the country from unscrupulous and unbecoming behaviour by our leaders.
I dismiss this ground.
1. (C): 1(a)(ii) – Issue of Directions, s. 27(4)
The plaintiff argues that the Ombudsman Commission should have given or issued him a direction pursuant to or in accordance with Section 27(4) of the Constitution. This direction, the Plaintiff argues, should have been issued after receipt by the second defendant, of the Plaintiff’s letter of 29th December 1998. He argues that the second defendant should have issued directions in response to the Plaintiff’s proposal to revoke Mr Tawa’s (his brother) appointment as the Public Service Commissioner. However according to the second Defendant’s transcript on verdict (pg 30), the plaintiff did not disclose in that letter that prior to consideration of the NEC Submission, he had not consulted with the Permanent Parliamentary Committee on Appointments. The second defendant immediately responded by letter of 30th December 1999 setting out 12 requisitions for the Plaintiff to respond to. The Plaintiff, the First Defendant found, did not respond to those requisitions, which were due on 5th January 1999, and ultimately receive advice from the second defendant, which was his original intention. The Plaintiff, sent a submission to the NEC seeking and obtaining a revocation of his brother’s appointment. The second defendant learnt of this in February 1999.
I consider that the second defendant did issue the "direction" the Plaintiff now requests, which is its letter of 30th December 1998. These directions need not be specific (s. 27(1) of Constitution) and can be general statements (s.27(4) of Constitution).
For the Plaintiff to say the second defendant did not issue directions is hypocritical and outlandish considering the Plaintiff, without responding to the second defendants requests or directions, (letter of 30th December 1998) immediately, relying on fraud and deceit (pg 31 of second Defendant’s transcript on "decision on verdict") sought to and did revoke his brother’s initial appointment and engineered his subsequent reappointment.
A similar argument was recently considered by the National Court in Wakon v Ombudsman Commission (OS No 427 of 2001, 29.08.01). Salika .J accepted the Ombudsman Commission’s response that there was no obligation to give a direction to Mr Wakon under Section 27(4) of the Constitution prior to making a finding that there was a prima facie case that he had been guilty of misconduct in office. Further that the applicant’s argument was not consistent with Section 27 of the Constitution. The court there held that the power of the Commission to give direction is discretionary. The exercise of that discretion is in no way a precondition to a finding that there is prima facie evidence of misconduct in office. It is often simply not possible to give directions before the misconduct occurs.
His Honour accepted the Ombudsman Commission’s interpretation of Section 27(4). He conceded that "it is an arguable proposition that perhaps referral should be the last resort....". But he concluded at page 11: "In the ultimate, however, it is entirely a matter of discretion for the Ombudsman Commission" and that "this Court should not interfere with that discretion unless it is shown that the discretion has not been lawfully exercised".
Therefore, this ground of review would require the Court to find that the interpretation and application of this critical provision of the Leadership code has been misconstrued by the Ombudsman commission, the Public Prosecutor, numerous leadership tribunals and the National Court and the Supreme Court for more than 26 years. That is an extreme, hypothetical scenario but which is not forthcoming or apparent in this case.
The interpretation of Section 27 advanced by the application is simply not available on a literal reading of the section and if accepted would make a mockery of enforcement of the Leadership Code.
I dismiss this ground.
1. (D): Ground 1(b); Misconduct in office – s. 6 of OLDR
This ground arises from the 2nd and 5th charges which are allegations of contraventions of Section 6(1) and 6(2) of the OLDRL which is the Plaintiff’s failure to disclose or reveal his interests to the Ombudsman Commission.
The Plaintiff concedes that such disclosure must be made prior to taking action on the matter. He however submits that by the revocation of Mr Tawa’s December 1998 appointment and adoption of the correct process on the 13th January 1999, this error was rectified. The Plaintiff submits that his letter of 29th December 1998 disclosed the interest of the Plaintiff’s brother Mr. Moses Tawa and that if the 2nd Defendant upon receiving the Plaintiff’s letter of 29th December 1998 considered such disclosure inadequate, it did not say so in its letter of 30th December 1998.
It is claimed that the tribunal erred in its interpretation and application of Section 6 of the OLDR in two respects. First in sub-ground 1(b)(i) it is said that it is sufficient for a leader to reveal an associate’s interest to the Ombudsman Commission after he deals with a matter. Secondly in sub-ground 1(b)(ii) it is argued that this was a case in which the exception provided by Section 6(3)(b) of the OLDR applied.
1(b)(i) – when does a leader reveal his/her interests.
Is the Plaintiff correct in his interpretation as portrayed above. Such an interpretation is plainly inconsistent with the way in which Section 6 is meant to operate. I see that Section 6 creates two separate "misconduct in office" offences. First, where he fails to reveal (re Section 6(1)) and secondly, he has an interest in a matter which he has to deal with in an official capacity and he deals with it. The interpretation by the Plaintiff is completely wrong. These subsections require that a leader reveal his interest before dealing with a matter. It will only be if the exceptions in Section 6(3) apply that a leader will be able to reveal the interest afterwards. But these exceptions do not apply to the Plaintiff. The tribunal made no error of law in this regard.
1(b)(ii) – whether an exception under Section 6(3)
The Plaintiff submits that the First Defendant Tribunal erred by not accepting that the leader, in this case the Plaintiff, dealt with the matter by urgent necessity. However I note that the tribunal did address this in its decision on guilt at pages 27-28. The tribunal was concerned about the manner and speed with which the appointment was made and was satisfied that there was no urgent necessity for the appointment of the leader’s brother. The Tribunal did not misunderstand the law and properly considered section 6(3) of the OLDR. There was no error of law.
I note also the third defendants submissions in relation to this ground where the Solicitor-General referred to the First Defendants findings, that it took the Plaintiff less than 8 working days from the date of his appointment as Public Service Minister (on 3rd December 1998) to sponsor and eventually secure the Public Service Commission job for his brother. This the Plaintiff did without disclosing that the nominee was his brother.
The Plaintiff’s arguments that he revealed his "interests" by the act of revoking his brother’s appointment and then subsequently seeking his brother’s reappointment is incorrect because the Plaintiff revoked his brother’s appointment after the second defendant began inquiries.
I find that to suggest that a leader must reveal an interests after an event, ie. after committing an offence, is to defeat the whole purpose of the leadership code. The court will not accept this.
These grounds have no basis and are dismissed.
The Tribunal found there was evidence of "direct or indirect beneficial interest" in the Plaintiff’s appointment of his blood brother to a very senior post in the public Service.
I will dismiss this ground as it fails to disclose an error of law on the face of the record.
2: Ground 2 - Want of Jurisdiction
I find the Tribunal did act within its powers when it did. In any event, it was raised as a preliminary objection at the tribunal hearing and rejected.
I dismiss this ground.
3: Ground 3 - Unreasonableness under the Wednesbury Principles
The Wednesbury unreasonableness principle states that an Authority or Tribunal must act as any reasonable person would act and must not be so absurd in its action such that no reasonable person would act in that way.
On perusal of the tribunal’s decision on verdict, I find that the tribunal did carefully consider all the evidence before it.
In fact I am informed the Plaintiff exercised his right not to give evidence hence not be subjected to cross-examination, so he cannot
now come to court and say the Tribunal was unreasonable.
The Tribunal did carefully weigh all the evidence before it, aspects of which I have already covered.
This ground has not merit and is dismissed.
4: Ground 4 – Severity and Penalty
The Plaintiff urges me to consider that the Tribunal did not consider all mitigating factors including the fact that the Plaintiff
had an unblemished record in the public service of 26 years. The Plaintiff also asked that in light of my findings, that this court
consider an alternative penalty as provided under s. 2 of the Leadership Code (Alternative Penalties) Act.
On perusing the Tribunal’s decision on verdict, I find that it did carefully consider all materials put before it then. I refer to the following;
Pages 6, 7, 8 and 9 of the First Defendant’s Decision on Verdict and pg 260 of the Transcript of Proceedings is evident of the manner in which the decision was reached. I quote; "...thus when the leaders conduct is taken step by step or in the whole, it shows a deliberate flouting of the appointment procedures and leadership duties. The only recommendation of penalties must be for dismissal."
Consideration of argument under s. 155(4) of the Constitution to vary penalty is therefore not relevant and will not be considered.
I dismiss this ground.
5: Conclusion
In the circumstances, as all grounds for relief are dismissed, I accordingly refuse the reliefs sought in the originating summons
and with additional orders that the Plaintiff pay all defendant’s costs of this application.
________________________________________________________________________
Lawyer for the Applicant/Plaintiff: Jerewai Lawyers
Lawyer for the First and Third Defendant: Solicitor-General
Lawyer for the Second Defendant: Mr. D. Cannings
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