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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
OS 818 OF 2006 (JR)
BETWEEN:
ARTHUR SOMARE
Applicant
AND:
ILA GENO, PETER MASI AND JOHN NERO, OMBUDSMAN COMMISSIONERS AND OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Respondents
AND:
CHRONOX MANEK, PUBLIC PROSECUTOR
Respondent
AND:
JUSTICE KUBULAN LOS, ORIM KARAPO AND NOREEN KANASA, MEMBERS OF LEADERSHIP TRIBUNAL HEARING ALLEGATIONS OF MISCONDUCT AGAINST ARTHUR
SOMARE
Respondents
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Respondents
Waigani: Salika, DCJ
2011 : 11, 12 13, 16 May;
3 June
JUDICIAL REVIEW – Decision of Ombudsman Commission – S 217 (6) of Constitution – Judicial review restricted to s 217 (6) of Constitution – Issues raised – bias – breach of principles of justice – facts do not support bias – facts do not support breach of principles of natural justice – Ombudsman Commission did not exceed jurisdiction – Application dismissed.
Counsel:
Mr I Molloy, Mr K Kua and Mr J Wohuinangu, for the Plaintiff/Applicant
Mr H Maliso, Mr V Narokobi & Ms S Haihavu, for the First Defendant/Respondents
Mr S Koim, for the 2nd, 3rd and 4th Defendants/Respondents
3rd June, 2011
1. SALIKA DCJ: Introduction: This is an application for Judicial Review by Arthur Somare.
2. Mr Somare is a serving Member of the National Parliament. He first entered politics winning the Angoram Open Electorate, ESP in
1997. He was re-elected in 2002 and again in 2007. He served as Governor of East Sepik Province from 1999 to 2002 and from 2002 to
2004. He is currently the Minister for State Enterprises.
3. Mr Somare is a person to whom the Leadership Code applies pursuant to s.26 of the Constitution. He is also subject to the Organic Law on the Duties and Responsibilities of Leadership (OLDRL).
Chronology
4. In 2002 the Ombudsman Commission on its own initiative conducted investigations into accessibility and application of the 2002 District Support Grants (DSG) by all the 109 Members of Parliament. As 2002 was the General Election year and there was a general concern raised that misappropriation of the 2002 DSG funds before the General Election, the Ombudsman Commission decided that it would put a stop to the payment of the DSG if it sent out a directive.
5. In the cause of the investigation the Ombudsman Commission issued a direction signed by two members of the Commission pursuant to s 27(4) of the Constitution on 22 May 2002 preventing the payment of public funds in the form of electoral development funds, unless and until all the relevant laws and the relevant guidelines relating to the receipt, payment, disbursement, transfer etc of these funds were complied with.
6. On 22 July 2002, the Ombudsman Commission published a notice signed by three members of the Commission declaring as prohibited interests the public funds in the district trust accounts of those Members of Parliament who had lost their seats in Parliament in the 2002 General Elections in July of 2002.
7. On 29 July 2002 the Ombudsman Commission published an order signed by 3 members of the Commission for disposal of the public funds subject of the prohibited interest order to the consolidated revenue fund.
8. On 4 December 2002 following the direction and the prohibited interests notice, the Ombudsman Commission issued a direction signed by all three members of the Commission under s.27 (4) of the Constitution to all Members of Parliament who won back their seats in the 2002 elections stopping the disbursement of payment of public funds specified in the directions unless and until the public funds were strictly applied for the purpose intended and in accordance with the relevant guidelines and with approval of the management agent and not released, or paid or disbursed or received public monies in the form of development funds in respect of any electorate for the years 2002 and 2003 unless all other funds previously allocated were fully acquitted and a summary of that acquittal given by the member concerned to the Ombudsman Commission by 31st January 2003.
9. Mr Somare was listed number 16 on page 8 of the directions.
10. On February 2005 the Ombudsman Commission served on Mr Somare his right to be heard notice dated 11 February 2005. Mr Somare was allowed a period of 21 days in which to exercise his right to be heard.
11. Two allegations put to him were in relation to failure to submit his Annual Statement and his failure to acquit the DSG directed under s 27(4) of the Constitution. Mr Somare had until 16 March 2005 to exercise his right to be heard. He was advised that if he required further time to respond he should seek an extension of time.
12. On 15 March 2005 Mr Somare provided a brief response to the allegations. In relation to his failure to submit Annual Statements he advised the Commission that he would lodge the statement on 17 March 2005 which he failed to abide by and further failed to take reasonable steps to do it.
13. In the same letter he requested an extension of 14 days to allow him to respond to the second allegations in relation to acquittal of DSG funds.
14. On 22 March 2005 the Commission granted Mr Somare's request for an extension of another 14 days. That extension was to take effect after the expiry of the initial 21 days which started from 17 March 2005, his response was due on 30 March 2005.
15. On 30 March 2005, Mr Somare submitted his acquittals on the DSG funds and requested for a date to be set for him to make oral response on this allegation. He also assured the Commission that he would provide further and full particulars of receipts and other documents in relation to the acquittal of the DSG funds in the next two to three weeks if an appointment was made for oral presentation.
16. On 16 May 2005 the Ombudsman Commission wrote to Mr Somare acknowledging receipt of his Annual Statements and requested him to furnish further particulars in relation to his annual Statements.
17. On 27 May 2005, Mr Somare met with Ombudsman Peter Masi and a number of officers of the Commission Office at level 5 Deloitte Tower to provide oral response in relation to the acquittal of the 2002 DSG funds. In the meeting Mr Somare still did not provide acquittal documents he promised he would provide and undertook to provide them at a later time. This meeting was abruptly terminated after some discussion as to whether a formal written request was sent to Mr Somare to appear before the Commission and what to bring to the meeting.
18. On 27 June 2005, in a letter of even date the Commission advised Mr Somare to provide the acquittal documents he undertook to provide by 4 July 2005.
19. On 4 July 2005, Mr Somare submitted his response in relation to the Annual Statement. He briefly provided vehicle registration numbers of 4 vehicles and provided other details in relation to his liabilities, incomes and balances in accounts and attached 2 bank statements.
20. In relation to DSG funds he mentioned that although he submitted the summary of the acquittals on the DSG funds it was not easy to retrieve further information and assured the Commission that he would still furnish the Commission with those documents.
21. On 6 July 2005 the Commission acknowledged receipt of Mr Somare's letter of 4 July and advised that the Commission will deliberate on his response and advise him in due course.
22. On 11 July 2005, Mr. Somare submitted his disbursement and acquittal forms in relation to the acquittal of the DSG funds.
23. The Commission deliberated on the matter and was satisfied that there was a prima facie case that Mr Arthur Somare was guilty of misconduct in office.
24. On 28 February, 2006, the Ombudsman Commission personally served on Mr Somare a notice dated 24 February 2006 under s.20(2) of the OLDRL of its intention to refer the matter to the Public Prosecutor. I note that it took 7 months from 11 July 2005 to do this.
25. On 28 February of 2006 as well, after personally serving him the letter referred to in the paragraph above the Ombudsman Commission referred him to the Public Prosecutor together with its Statements of Reasons including the documents and other things referred to in the statement pursuant to s.29(1) of the Constitution and s.17(d), s.20(4) and s.27(1) of the OLDRL.
26. On 1 March 2006, the 3 members of the Commission made a press release on the referral of Mr Somare and on the 2 March 2006 the National and Post Courier published the referral to the Public Prosecutor.
27. On 3 March 2006, the Ombudsman Commission wrote to Mr Somare to confirm his referral.
28. On 19 April 2006, the applicant wrote to the Commission alleging bias on the part of Ombudsman Peter Masi and the Ombudsman Commission and requested for an independent investigation under s.19 of the OLDRL to investigate Ombudsman Masi and the Ombudsman Commission.
29. On 21 April 2006, the applicant accused the Ombudsman Commission on the floor of Parliament of irregularities of its processes
and Peter Masi of bias.
30. On 30 August 2006, the Public Prosecutor requested the Chief Justice to appoint a Leadership Tribunal to inquire into the allegations
of misconduct in office of Mr Somare.
31. On 15 September 2006 the Chief Justice appointed the Leadership Tribunal.
32. On 4 September 2006 seven months after the referral, the Commission was involved in a Government Bodies Liaison Programe in East Sepik Province. Ombudsman Masi and Mr John Toguata with some Commission staff were involved in the programme.
33. Ombudsman Masi and John Toguata were alleged to have uttered comments which were allegedly biased towards Mr Somare at Angoram.
34. In November 2006, Mr Somare sought leave for judicial review and leave was granted.
35. That is a brief chronology of events from 2002 up to the time the court granted leave for judicial review of the matter.
THE REVIEW
36. The review application is seeking to review the decision of the Ombudsman Commission to refer Mr Somare to the Public Prosecutor.
37. The contention by the applicant is that the Ombudsman Commission made errors of procedure and errors of law and that it denied the leader natural justice. It therefore is seeking to set aside the decision of the Ombudsman Commission.
38. The applicant Mr Somare in his grounds for judicial review alleged that there was bias and prejudice, real or perceived against Peter Masi who is a member of the Ombudsman Commission and John Toguata an officer of the Ombudsman Commission, and that such bias and prejudice compromised and questioned their impartiality and integrity of the investigation process employed by the Ombudsman Commission resulting in the Ombudsman Commission exceeding its jurisdiction and or lacking jurisdiction and is therefore an appropriate case for review under s.217(6) of the Constitution.
39. The other basis for seeking a judicial review is that there was a breach of natural justice pursuant to s.59 of the Constitution when the Ombudsman Commission refused and or declined to take any affirmative action to appoint an independent investigator pursuant to s.19 of the OLDRL when such a request was made by the plaintiff on the 19 April 2006 and again through his former lawyers Blake Dawson and Waldron on the 8 May 2006 for an appointment of an Independent investigator over the issues of bias and prejudices.
THE LAW
40. Judicial review is concerned with the decision making process. Circumstances where judicial review is available are:-
- Where the decision making body exceeds its powers.
- Where the decision making body commits an error of law.
- Where the decision making body commits a breach of natural justice.
- Where the decision making body reaches a decision which no reasonable tribunal could have reached.
- Where the decision making body abuses its powers.
- Where the decision making body takes into account irrelevant considerations in its decision making process.
See Kekedo v Burns Philip (1988 – 89) PNGLR 122.
41. The Supreme Court in Wakon v Ombudsman Commission, SCM No 9 of 2001 unnumbered and unreported said:-
"The purpose of the National Courts proceedings in application for judicial review is not to reassess the merits of the Ombudsman Commission decision to refer but to ensure that the decision was made lawfully. It is not the National Courts function to predetermine or prejudge issues that ought to be properly decided by a Leadership Tribunal".
42. The Supreme Court in an earlier case of Ombudsman Commission v Donohoe (1985) PNGLR 348 among other orders held:-
"(3). The Supreme Court and the National Court have jurisdiction to review proceedings of the Ombudsman Commission on the ground that it has exceeded its jurisdiction.
(5) The obligation to observe the rules of natural justice under the Constitution, s 59 and s 60, may apply depending upon the circumstances, to proceedings before the Ombudsman Commission.
(6) Where a report arising from proceedings before the Ombudsman Commission may have adverse consequences for a person concerned, the rules of natural justice require that the person be provided with a reasonable opportunity of being heard and fairly setting out his defence in any such report.
(7) A person aggrieved by a failure by the Ombudsman Commission to so observe the rules of natural justice has a primary right to seek judicial review of the proceedings of the Ombudsman Commission.
43. Since the Donohoe case judicial review applications in such cases have steadily increased. This very case is just one example of an aggrieved applicant seeking a review of a decision of the Ombudsman Commission. I will now deal with this matter restricting it to s 217 (6) of the Constitution because that is where this Court's jurisdictional basis lies in dealing with this matter – s 217 (6) provides:
"217. The Ombudsman Commission.
(6) The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction."
SPECIFIC COMPLAINTS BY APPLICANT
ALLEGATIONS OF BIAS
44. In the Amended Originating Summons the applicant states the following as his specific complaints:
"Real and Apprehended Bias
(23) There was bias and prejudices, whether real or perceived, against the Plaintiff by Commissioner Peter Masi, a member of the Ombudsman Commission being the First Defendants/Respondents herein and or John Toguata an officer of the First Defendants/Respondents and such bias and prejudice has compromised and questions the impartiality and integrity of the investigation processes employed by the Ombudsman Commission resulting in the Ombudsman Commission exceeding its jurisdiction and or lacking jurisdiction and is therefore an appropriate case for review under Section 217(6) of the Constitution and or Section 24 of the Organic Law on Ombudsman Commission and a breach of natural justice principles pursuant to Section 59 of the Constitution; and or
(24) There was bias and prejudice, whether real or perceived when Commissioner Peter Masi chaired and conducted interviews with the Plaintiff on 27 May 2005 when he clearly was in a conflict of interest position because of:
- (a) The fact that he is from Angoram where the Plaintiff comes from; and
- (b) three (3) of his direct relations did stood for the 2002 National Election against the Plaintiff and lost; and
- (c) the fact that he and John Toguata did speak and make overtures in separate public forums in Angoram and Yangoru on 7 September 2006 which comments and overtures had direct and or indirect political implications against the Plaintiff and his father, Sir Michael T Somare, the Prime Minister of Papua New Guinea.
(25) There was bias and prejudice, whether real or perceived, and a breach of natural justice principles pursuant to Section 59 of the Constitution when Commissioner Peter Masi, as the person in charge, refused to allow the Plaintiff legal representation at the Plaintiff's interview on 27 May 2005, despite the Plaintiff having expressly requested for such legal representation.
(26) There was a breach of natural justice principles pursuant to Section 59 of the Constitution when the First Defendants/Respondents refused and or declined to take any affirmative actions to appoint an independent investigator pursuant to Section 19 of the Organic Law on Duties and Responsibilities of Leadership, when such a written requests were made by the Plaintiff on 19 April 2006 and again through his former lawyers, Blake Dawson Waldron on 8 May 2006 for the appointment of an independent investigator over the issue of bias and prejudices.
(27) Peter Masi, an Ombudsman is from Angoram, the electorate from which the Plaintiff comes from and represents in the National Parliament.
(28) The failure by Mr Masi to declare his interest of a possible perception of a bias by virtue of the fact mentioned in the last preceding paragraph.
(29) Mr Masi comes from the Branda Village, Angoram, which is where 3 of the 23 candidates in the 2002 National Elections actually came from and who challenged the Plaintiff. Mr Masi's direct or indirect relationships and connections to these three failed candidates ought to have been declared and the failure to do so there suggests a possible bias.
(30) Mr Masi and his agents forced the Plaintiff to attend an interview on 27 May 2005, and in declining his lawyers' request for a lawyer to accompany the Plaintiff to the interview advising that the presence of a lawyer may "work against" the Plaintiff.
(31) The First Defendants forced the interview to proceed and aborted it only halfway through after realising on the Plaintiff's objections that no prior written notice had been given to him to prepare for the interview.
(32) The First Defendants failed to properly investigate the acquittals lodged by the Plaintiff with the ORD which is the primary implementing agency of the Plaintiff's DSG. A proper investigation would have revealed that on 14 April 2005, the ORD gave full clearance that the Plaintiff's acquittals of the DSG for 2002 were totally in order. The failure to investigate fully at the ORD is evidence of bias.
(33) The applicable guidelines relating to the disbursement of the DSG for 2002 were those approved by the National Executive Council in 1998. (See annexure AS11). Instead of applying these guidelines in auditing the Plaintiff's acquittals, the First Defendants applied the wrong guidelines which were not approved by the National Executive Council in accordance with section 95A(7) of the Organic Law on Provincial and Local Level Government. A copy of the approved DSG guidelines is annexure AS12.
(34) The First Defendants applied the wrong guidelines namely one issued by the Department of Finance being Financial Instruction No. 2/2001 dated 19 March 2001 (see annexure AS13). Financial Instruction No. 2/2001 dated 19 March 2001, has not been approved by the NEC under section 95(A)(7) of the Organic Law on Provincial and Local Level Government.
(35) Ombudsman Mr Masi was personally present at the interview of the Plaintiff conducted on 27 May 2005, despite his conflict of interest.
(36) Ombudsman Mr Masi personally led a delegation including Director John Toguata to Wewak in September 2006, specifically with the view to go into Angoram and Yangoru with the view to conducting public forums on the duties and responsibilities of Leadership, whilst the Public Prosecutor was still in the process of considering whether or not to refer the matters to the Chief Justice for the establishment of a leadership tribunal. Mr Masi's personal attendance in the context of his possible conflict of interest is further proof of his bias.
(37) The First Defendant's publications of the referral of the Plaintiff to the Second Defendant in the National and Post Courier newspapers on 2 March 2006, in breach of section 20 of the Organic Law on the Ombudsman Commission which requires members of the Ombudsman Commission and its officers and employees to maintain secrecy. This publication was designed to injure and publicly persecute the Plaintiff and is further proof of bias on the part of First Defendants.
(38) On 19 April 2006, the Plaintiff wrote to the First Defendants to convene an inquiry under section 19 of the Organic Law on the Duties and Responsibilities of Leadership. Namely, the Plaintiff advised Ombudsman Mr Masi had a personal conflict of interest which required an inquiry. After some 6 weeks delay the First Defendants replied on 6 June 2006, advising that they will "deliberate" and inform the Plaintiff of their decision. A delay of 6 weeks is proof of bias.
(39) After a further 13 weeks or so (from 19 April 2006) the Ombudsman wrote to the Plaintiff a further letter dated 26 July 2006, advising that it "resolve to enquire into your client's complaint and will advise you of the outcome in due course". Since then to the date of the hearing the First Defendants are yet to advise of the outcome of the inquiries into the Plaintiff's section 19 complaint.
(40) On 6 September 2006, Director John Toguata was in Angoram, the Plaintiff's electorate in which he conducted a public forum where extensive questions and answers session ensued with the public. Mr Toguata encouraged or provoked a lot of questions on the performance or lack of it of the Plaintiff in his District Development Programmes in the electorate including roads, schools and hospitals. At the end of the public forum members of the public were heard to observe that "yes, mipela mas lukluk long senis"; "nogat memba long electorate"; and "memba ino save live long electorate hia". Mr Toguata was then heard to say words to the effect "ok yupela igat pawa, openim eye belong yupela na mekin choice belong yupela", meaning that you people have the power, open your eyes and make your choice (of leadership). Mr Toguata knew or ought to have known that the Plaintiff's referral to the Public Prosecutor was still pending action and ought not have inflamed public opinion in Angoram by a visit and provoking public opinion against the Plaintiff. This is proof of the First Defendant's bias.
(41) On 7 September 2006, Mr Toguata proceeded to Yangoru where he further discussed the performance or lack of it of the Plaintiff to members of the public. He is heard to have said of the Plaintiff words to the following effect:
"What is your observation of Angoram?
Answer: That is the home of the father and the son. That is the home of the Prime Minister. The hospital, high school, police station and roads are all there but there is no change. Where does the money for the District Development Programmes go? I have no idea. The roads are not sealed and it is very bumpy and my back is aching from driving on it.
The only growing District in East Sepik and PNG is Maprik".
Mr Toguata is further heard to have said words to the following effect:
"Yangoru is ok. The District Court House is here, Treasury Building is here, Police Station here, the High School and the Community Schools are here and the place is changing.
But Angoram is a cowboy town for the father and the son".
The above highly inflammatory statement attributed to Mr Toguata is evidence of a serious bias against the Plaintiff (and his father Sir Michael Somare).
(42) On his trip to Angoram on 7 September 2006, Mr Toguata attributed the funding of the costs of his trip to Ausaid and not to the PNG Government. In the context of the recent political controversy between the Governments of Australia and Papua New Guinea led by the Government of Sir Michael Somare to which the Plaintiff is a Minister, the use of Ausaid money to fund a particular trip to the Plaintiff's electorate for the purposes of impinging on his integrity maybe indicative of an ingrained bias on the part of the Defendants.
(43) The funding of the trip by the First Defendants to Wewak, Angoram, Yangoru and Maprik as funded by Ausaid, an organization associated with a foreign Government, is an encroachment on the independence of the First Defendants which is guaranteed under section 217(5) of the Constitution which provides that:
"In the performance of its functions under section 219 (functions of the Commission), the Commission is not subject to direction and control of any person or authority".
Through its funding a foreign government has been allowed to improperly influence the processes of the First Defendants thereby compromising its Constitutional independence. This is indicative of the bias of the First Defendants in accessing foreign funding to investigate and persecute in particular the Plaintiff.
(44) Some of the matters recited in paragraph 3 therein constitute a breach of the rules of natural justice which are accorded to the Plaintiff under section 59 of the Constitution.
(45) The procedural excesses and irregularities amount to an unreasonable exercise of power and are in breach of the Wednesbury principles and or constitute a want or excess of jurisdiction."
45. I will deal with each of the complaints in the following manner.
Paragraph 23 of the Complaint is Ground No 1.
Issue No 1 – ALLEGATION OF BIAS AGAINST PETER MASI PRIOR TO 27 MAY 2005
46. The first issue is whether there was bias and prejudice whether real or perceived shown by Ombudsman Masi towards the applicant in the investigation and the referral of the applicant to the Public Prosecutor.
47. Evidence of bias and prejudice came from the applicant, Michael Ningis, Robert Kwaisombi, Peter Faringuma and Francis Yangmari. All of them filed affidavits and were cross examined on them by the lawyers for the respondents.
48. The applicant in his affidavit filed on 6 November 2006 from paragraphs 28 to 36 deposes to matters relevant to the issue of bias and prejudice.
49. It was on 11 February 2005 (affidavit but on oral evidence he said on 23 February 2005) that the applicant received a letter from the Ombudsman Commission . It was a 16 page letter to the applicant. The letter was signed by Ila Geno as Chief Ombudsman and Peter Masi as Ombudsman.
50. Although the letter is headed ["Your Right To Be Heard As Allegations of Misconduct In Office"], the letter is in fact more than that. The letter informed him that the Ombudsman Commission had deliberated on matters arising from an investigation and that the Commission was of the view that the applicant had a case to answer on some matters arising from the investigation.
51. Paragraph 2 of the letter spells out the purpose of the letter which was to briefly set out the allegations, to set out in detail the allegations and to explain what action the applicant was required to take. The pertinent part of the letter in so far as these proceedings are concerned are these:
"51. As we advised at the beginning of this letter, you have a right to be heard in relation to the above allegations under s 20(3) of the Organic Law on Duties and Responsibilities of Leadership."
52. In exercising your right to be heard, the following procedure will apply:
52. The applicant was given 21 days to respond to the allegations raised in the letter.
53. From 11 February 2005, the applicant had up to 16 March to respond.
54. On 15 March 2005 the applicant responded by way of a letter. In that letter the applicant promised to respond fully in 2 days (oral evidence). On 17 March 2005 the applicant did not respond as promised.
55. In the letter of the 15 March 2005, the applicant requested an extension of time. The Ombudsman Commission gave him an oral extension of 14 days. The oral extension expired on 30 March 2005.
56. On 30 March 2005, the applicant responded to the allegations and provided some acquittal documents. In that letter the applicant requested for an opportunity to make an oral response and promised to provide further documents within 14 days on the allegations regarding the DSG acquittals.
57. At the expiry of 14 days, the applicant did not provide further documents as promised.
58. The applicant was asked in his oral evidence before the Court whether he requested for the presence of his lawyers in the letter, and he said "no" but said there was a discussion on the matter and that he was advised by his own counsel that it would agitate the Ombudsman Commission.
59. On 27 May 2005 the applicant received a telephone call from an officer of the Ombudsman Commission "summoning" him to appear before the Ombudsman Commission for an interview.
60. The applicant attended at the Ombudsman Commission office at about 1.00pm on 27 May 2005 and present in the room were Ombudsman Peter Masi and officers Mogu Mubwabwai, Gabe Hekoi, Charles Mende and Petra Binta.
61. The applicant in his affidavit says Ombudsman Peter Masi chaired the interview and questions were asked in his presence and he gave answers. He said Peter Masi also took part in asking questions.
62. Peter Masi on the other hand in his oral testimony said he did not chair the meeting as such, but was the facilitator. Being the most senior officer present, I accept that Peter Masi would have been in charge of the meeting. This interview was recorded by the Ombudsman Commission and a transcript is attached to the applicant's affidavit.
63. The above events referred to are relevant on the issue of bias before the referral of the applicant to the Public Prosecutor.
64. In paragraph 28 of his affidavit, the applicant deposed that prior to his referral to the Public Prosecutor, he was concerned in the way and manner in which the Ombudsman Commission was going about investigating him, more particularly in relation to the 2002 DSG funds.
65. He further deposed that he was being investigated by Ombudsman Peter Masi who is from Angoram and that 3 of Peter Masi's relatives stood against him in the 2002 National Elections and lost. For those reasons he thought Peter Masi was biased towards him.
66. Peter Masi in his affidavit paragraph 20 deposed that he did not investigate the applicant but that it was the Ombudsman Commission that investigated him. He deposed that in practice it is officers of the Ombudsman Commission who are given the task to investigate after the Ombudsman Commission decides to investigate and in this case officers were directed to investigate through Director Operations John Toguata and his assistant.
MEETING ON 27 MAY 2005
67. The meeting of 27 May 2005 was a meeting where Ombudsman Peter Masi was present. How that meeting was organised is not clear to me at first. Peter Masi said he was not aware of the meeting. Ila Geno, the Chief Ombudsman, said he was not aware of the meeting and was not available. The applicant in his affidavit, paragraph 17, said he received a telephone call from an officer of the Ombudsman Commission but he could not remember the name of the officer and was asked to front up at the Ombudsman Commission office.
68. It was not established in Court as to which officer called the applicant. Hekoi Gabi said the meeting would have been called by the Ombudsman Commission, that is, by the 3 Ombudsman. However, I am not satisfied this was the case. I am not even sure whether Ombudsman Peter Masi was appointed to oversee the investigation of the applicant's case, and if one was, who was. I say that because if the meeting was called by the Ombudsman Commission, all three Ombudsman would have been ready and waiting for the applicant to arrive.
69. On 27 May 2005, the Chief Ombudsman and Ombudsman Nero were not available. Only Ombudsman Peter Masi was in his office, but Peter Masi said he did not know about the meeting until an officer came to him and told him the applicant was present for an interview. Peter Masi said, as a matter of protocol, he had to go and meet the applicant and be present at the meeting.
70. The transcript of the interview speaks for itself. While Ombudsman Peter Masi was present, the transcript shows that Mogu Mubwabwai opened the meeting and made the introduction and handed it over to the case officer Gabe Hekoi and Ombudsman Masi to start the proceedings. Gabe Hekoi then got the proceedings going.
71. Ombudsman Masi got involved in the discussion in the middle of the interview as the transcript shows.
72. Peter Masi gave evidence of this meeting. His evidence was that he was not aware of the meeting until the applicant arrived at the Ombudsman Commission Office and that an officer came and told him that the applicant was in for an interview. He said as a matter of protocol he had to be present. He said the other two Ombudsmen were not available.
73. I have read the affidavit of Esther Arua page 341 of RB BK No 1. She is the personal assistant to Mr Somare. Her duties included organising the applicant's daily, weekly and monthly activities and organising his appointments. All these were recorded in her diary. She recorded telephone calls and appointments. There are 10 recorded.
74. I note that there is no call registered from Ombudsman Masi or his office in Esther Arua's diary.
75. I also note that on 23 May 2005 Gabe Hekoi called the applicant's office. On 26 May 2005 Gabe Hekoi called again for Mr Somare to see the Chief Ombudsman. On 27 May 2005 Esther Arua recorded "Arthur Somare to meet Chief Ombudsman". It is not clear when the actual call and appointment was made for the meeting on 27 May 2005. Was it made on 23, 26 or 27 May 2005? From this record, it now becomes clearer to me as to who might have made the arrangement for the meeting on 27 May 2005 at 1.00pm.
76. I note from Esther Arua's affidavit that the meeting was to be with the Chief Ombudsman.
77. I further note that the Ombudsman Commission started calling for the applicant on 1 February 2005 and again on 2 February 2005. Those calls were made by Ombudsman John Nero. On 22 February 2005, Gabe Hekoi called and it appears he may have made an appointment for the applicant to see the Chief Ombudsman on 23 February 2005, because Esther Arua's entry says "Arthur Somare to meet with Chief Ombudsman".
78. On 14 March 2005, John Nero called Mr Somare's office. He may have secured an appointment for the applicant to meet with the Ombudsman Commission because Arua's notes say, "Arthur Somare to meet Ombudsman Commission at 3 pm on 16 March 2005".
79. There was another appointment for Mr Somare to meet Chief Ombudsman at 4.00 pm on 21 March 2005. Whether any meeting actually took place is not known. The applicant did not allude to those appointments and telephone calls in his affidavit, filed on 6 November 2006, so I take it that no meetings took place as noted on Esther Arua's diary.
80. As alluded to earlier, the appointment on 27 May 2005 was for Mr Arthur Somare to see the Chief Ombudsman. Gabe Hekoi had made the appointment possibly on 26 May 2005. Whether Gabe Hekoi confirmed the meeting time with the Commissioners is another matter, although Gabe Hekoi said all the Commissioners were aware of the time of the meeting with the applicant. Peter Masi said he was not aware of the meeting and Ila Geno also said he was not aware of the meeting.
81. The significance of the meeting on 27 May 2005 is the allegation of bias by Ombudsman Peter Masi against the applicant and the right to be heard opportunity. There is nothing prior to the interview and during the interview to show that Ombudsman Peter Masi displayed bias, real, perceived or apprehended towards the applicant from February 2005 up to and including 27 May 2007. There is also nothing prior to the meeting to suggest Peter Masi was active in the investigation of the applicant. From records Peter Masi appears to have no direct involvement in pursuing the applicant.
82. There is however evidence from the applicant that he had concerns about being investigated by Ombudsman Peter Masi, who is from Angoram, and that three (3) of Peter Masi's relatives had contested for the same seat as the applicant in the 2002 National Elections and lost.
83. Peter Masi also gave oral evidence before me. During the course of his evidence he denied being biased against the applicant and said that he has not been home for 19 years. He said he did not know what was happening at his home village because he has not been home in a long time. He said he considered Mt Hagen his home where he spent 19 years of his public service life before his appointment as an Ombudsman.
84. In his affidavit paragraph 31, Peter Masi swore that the persons the applicant named as his relatives and who stood for election against him (the applicant) have been separated from him in the last 50 years. He said he has lived a separate life from those named and he had no cause to declare any conflict of interest to the Ombudsman Commission when it was investigating the applicant.
85. Francis Yangmari, a witness called by the applicant told the court that Peter Masi rarely comes to the village and that he comes only once in 5 or 10 years and that he does not take part in the affairs of the village because he is a "town Sepik". Francis Yangmari however said that a person such as Peter Masi still has land in the village and that he still has ties with the village.
86. When Peter Masi gave his evidence, he was towards the middle of cross-examination, angered by questioning from the applicant's counsel. He referred to being named on the floor of Parliament. I have read the Parliamentary Statement made by the applicant. While the Statement does not name Peter Masi in person, it is obvious the Statement was directed at Peter Masi and the Ombudsman Commission in general. The attack on the floor of Parliament was a severe attack on the integrity of Peter Masi and the Ombudsman Commission.
87. On page 320 of the Review Book, the applicant informed Parliament that he had "referred this violation of the law by the Ombudsman Commission to the Ombudsman Appointing Authority". In other words any prospect of Peter Masi seeking a reappointment as an Ombudsman was immediately in jeopardy. The Ombudsman Commission including Peter Masi were not in a position to defend themselves on the floor of Parliament. That statement was in my view inappropriate. The appropriate place for the applicant to defend himself is before the courts or before the Leadership Tribunal in my respectful opinion.
88. In his answers to questions from the applicant's counsel, Peter Masi became confrontational and kept asking counsel, "show me the evidence that I was biased". Peter Masi was obviously angry that he had been accused of bias on the floor of Parliament and he made no secret of the fact that he was angry and went on to say he hated politicians.
89. While I consider Peter Masi as a witness who was angry, confrontational and sometimes not answering questions and evasive and irrational, I accept his evidence that he was not biased towards the applicant. I accept his evidence on that because there is really nothing substantive from the applicant and his witnesses that Peter Masi was biased towards him. Any decision made by Peter Masi on the applicant's matter was a decision by the Ombudsman Commission and not Peter Masi on his own, except on the occasion of the meeting of 27 May 2005 where he caused a stop to the meeting. Otherwise, there is no clear direct evidence that Peter Masi was biased, real or perceived in investigating the applicant and having him referred to the Public Prosecutor.
90. Moreover, Peter Masi said he lived a separated life from the persons who stood for election for the Angoram seat in 2002. He said he had no contact with them and each of those people made their own decisions to stand for election. He was far removed from their lives and life in the village and Angoram for that matter.
91. For that reason, he said there was no reason and need for him to declare that he had a conflict of interest in the case. Having been away from his home and Angoram, I do not consider that Peter Masi should declare any conflict. Peter Masi obviously felt comfortable in dealing with the applicant.
92. In that vein, I accept his evidence on that and I am not satisfied that up to and including the events of 27 May 2005, Peter Masi ever display any appearance or feeling of bias, real, perceived or apprehended towards the applicant.
93. I therefore dismiss any claims of bias, real, perceived or apprehended from the beginning of the Ombudsman Commission Investigation up to and including 27 May, 2005.
ALLEGATIONS OF BIAS AGAINST PETER MASI AFTER 27 MAY 2005.
94. Before the meeting of 27 May 2005 came to an end, it was agreed towards the end of the meeting that the applicant would go back and identify what further documents were required by the Commission and that he would have them produced through Gabe Hekoi.
95. Nine months passed and in that nine months the applicant did produce the acquittal documents and was referred to the Public Prosecutor after he had submitted the acquittals.
96. On 27 June 2005, one month after the meeting, the Ombudsman Commission wrote to the applicant to remind him to provide the acquittal documents, he said he would provide at the meeting on 27 May 2005, by 4 July 2005.
97. On 4 July 2005, the applicant responded and gave information in relation to his Annual Returns. In relation to the DSG acquittal documents, the applicant said it was not easy to retrieve the summary of the acquittals but assured the Commission he would still provide them to the Commission. Mr Somare did not request for an oral hearing in that letter.
98. On 6 July 2005, the Commission responded to the applicant's letter of 4 July 2005 and advised that it would deliberate on the response and advise in due course.
99. On 11 July 2005, the applicant submitted his DSG disbursements and acquittals. Again on this occasion, he did not request an oral hearing.
100. The Commission considered the disbursements and acquittals and was satisfied that there was a prima facie case that Mr Somare was guilty of misconduct in office.
101. From 11 July 2005, it took 6 months for the Commission to deliberate on the matter and finally on 28 February 2006, referred the applicant to the Public Prosecutor.
102. Peter Masi was a signatory to the referral of Mr Somare and took part in the deliberations to refer Mr Somare to the Public Prosecutor.
103. Peter Masi said he is just one person but the Ombudsman Commission is made up of 3 Ombudsmen who made the decision to refer the applicant.
104. Peter Masi was performing his constitutional role and duties as an Ombudsman.
105. The Ombudsman Commission's constitutional role and duty is not a popular one in so far as investigation of leaders under the Leadership code is concerned.
106. Each of the three (3) Commissioners has a job to do and they must do it.
107. In that regard, I do not see any instance of appearance of bias, real, perceived or apprehended on the part of Peter Masi against Mr Somare.
108. There is no real evidence to substantiate any instances of bias or prejudice displayed or exhibited by Peter Masi against Mr Somare after the meeting of 27 May 2005.
109. Accordingly, I dismiss any insinuations of bias, real or perceived against Peter Masi against Mr Somare. Peter Masi was simply doing his job as an Ombudsman, thereby fulfilling his Constitutional functions.
ALLEGATIONS OF BIAS AGAINST PETER MASI AFTER THE REFERRAL
110. On 6 and 7 September, Peter Masi was in Wewak with officers of the Ombudsman Commission to inform and explain the roles, duties and functions of the Ombudsman Commission to the people of Wewak and the people of East Sepik province generally.
111. It is argued by the applicant that the presence of Peter Masi in Wewak was in bad taste and that he had instructed the Commission officers to make inappropriate political remarks in Angoram and Yangoru at public forums against Mr Somare and Sir Michael Somare.
112. Peter Masi was not present there in Angoram and Yangoru. He made a decision not to go to those places as by then Mr Somare had already accused him of bias.
113. It was suggested to Peter Masi that he should not have gone on the trip to Wewak and the East Sepik province for that matter as allegations of bias had already been made against him and he ought to have stayed right out of Wewak and East Sepik Province.
114. I do not consider all these allegations as having any merit. Peter Masi as an Ombudsman had performed his constitutional role by taking part in referring Mr Somare to the Public Prosecutor as part of the Ombudsman Commission.
115. There is no evidence that Peter Masi on his own or himself made any inappropriate political remarks against Mr Somare in Wewak. There is no evidence of malice, real or perceived on the part of Peter Masi towards Mr Somare at that time.
116. I cannot help but reject these allegations outright as having no evidentiary basis. The allegations are framed as if there was conniving discredit between Peter Masi and officers of the Commission to the applicant. I dismiss these suggestions as having no evidentiary basis.
ALLEGATION OF BIAS AGAINST JOHN TOGUATA PRIOR TO 27 MAY 2005
117. There is nothing in the documents in the Review Book from February 2005 up to and including 27 May 2005 that shows direct involvement
of John Toguata which indicates that he was biased towards the applicant. From his own evidence, he was the Director for Operations.
All matters including the applicant's matter came through him and he assigned them to the investigators but he himself had little
to do with the actual investigations.
118. In so far as allegations of bias against John Toguata towards the applicant from February 2005 up to and including 27 May 2005 are concerned, there is no evidence of bias, real, perceived or apprehended against Toguata. There is no evidence of appearance or feeling of bias from February 2005 up to 27 May 2005 by John Toguata.
ALLEGATION OF BIAS AGAINST JOHN TOGUATA AFTER REFERRAL
119. There is evidence of what Toguata may have said on 6 and 7 September 2006 in Angoram and Yangoru respectively. There is evidence from Francis Yangmari, Robert Kwaisombi, Peter Faringuma and Michael Ningis. The evidence of Francis Yangmari in general is that after listening to all the complaints about power supply, hospital and roads in Angoram, Toguata recommended for a change in leadership and told them they had the power to choose good leaders. Francis said Toguata did not mention Arthur Somare's name in his speech.
120. The big picture painted by all the evidence is that, the Ombudsman Commission officers were there for an awareness talk on the roles and functions of the Ombudsman Commission, and, as in other parts of the country, rural people do not get to see government officers often and this was an opportunity for rural people to ask questions of the Ombudsman Commission officers. They made full use of the time to ask all manner of questions and Mr Toguata answered people's questions.
121. From the evidence as to what was said in both Angoram and Yangoru, I am not satisfied that Toguata was biased, real, perceived or apprehended against the applicant. People in rural areas like Angoram and Yangoru in other words were raising issues common to them – no government services in rural areas - and Toguata was speaking to them in that context. I do not believe Toguata had any malice or bias, real, perceived or apprehended towards the applicant.
122. In any case the matter of the applicant had left the hands of the Ombudsman Commission. The Ombudsman Commission was by then on the 6 and 7 September 2005 functus officio (so to speak) of the applicant's matter. It had decided that there was a prima facie case that the applicant was guilty of misconduct in office and that it had decided to refer the applicant to the Public Prosecutor for prosecution before a Leadership Tribunal.
123. I further note from the evidence that from the time investigation by the Ombudsman Commission commenced into this matter until the matter was referred to the Public Prosecutor on 28 February 2006, the applicant never once raised the issue of bias, real, perceived or apprehended with the Ombudsman Commission, either with the Chief Ombudsman or Ombudsman Peter Masi himself, Ombudsman John Nero, or any of the officers of the Ombudsman Commission involved in the investigation.
124. The very first time the issue of bias was raised by the applicant was on 19 April, 2006, when he wrote to the Chief Ombudsman.
125. This leads me to deal with that letter of 19 April, 2006. The letter reads in part:-
"Complaint about procedure irregularities by the Office of the Ombudsman in relation to referral to the Public Prosecutor of allegation of misconduct in office under the Organic Law on Duties and Responsibilities of Leadership.
Clearly this is not the appropriate place to further discuss the substance of the allegations............. The purpose of this letter is to draw your attention to procedural errors, in which I consider may have constituted misconduct in office by the Ombudsman Commission which requires that you examine and investigate".
126. It is obvious from this letter that the matters raised in that letter are the very same matters this Court, by way of judicial review, is now determining. Those very complaints are now before this Court. This is the right forum to address the issues through the judicial review process.
127. By 19 April 2006 the applicant had already been referred to the Public Prosecutor. The matters he raised were now matters for a judicial review which this very hearing is about.
128. It is clear to me that when the applicant said, "Clearly this is not the appropriate place to further discuss the substance of the matter ......",
129. He was aware that the Ombudsman Commission was functus officio and the appropriate place to discuss this matter was at the Court by way of a judicial review application. This is precisely what this Court is doing - reviewing the procedures the Ombudsman Commission used - in referring the applicant to the Public Prosecutor.
130. The next part of his letter is a complaint of an allegation of misconduct in office by the Ombudsman Commission perhaps more particularly Ombudsman Peter Masi. The general allegation is against the Ombudsman Commission meaning all the three (3) Ombudsman Commissioners, Chief Ombudsman Ila Geno, Peter Masi and John Nero. This is the part of the complaint where s.19 of the OLDRL is to be invoked. This complaint in my view is a separate matter which should not affect the first part of the letter, that is, to review the procedures used in the investigation and the referral.
131. The complaint of misconduct in office by the three (3) Ombudsman Commissioners should be investigated by an independent constitutional office holder, as they could not investigate or examine themselves but that should not be a matter for this court to consider in this review as that complaint is a separate matter in my respectful opinion.
132. If the s.19 of the OLDRL request was not actioned by the Ombudsman Commission, it should, in my respectful opinion, not affect the referral process of the applicant to the Public Prosecutor. Where the request is to investigate the referral made, the judicial review is the appropriate forum and its findings will affect the referral. I go on now to address the other grounds.
133. I have covered grounds 23, 24, 27, 29, and 35 so far in this decision.
Ground 25:
134. The ground alleged that Peter Masi refused to allow the applicant Legal representation at the interview on 27 May 2005, despite the applicant having expressly requested for such legal representation.
135. In the course of these proceedings there was no clear evidence that the request for legal representation was ever discussed at the meeting on 27 May 2005. The record speaks for itself. There is no record of the applicant asking for legal representation. There is no evidence that Peter Masi refused to allow the applicant legal representation.
136. One cannot therefore raise an issue of bias if there was no specific request that was declined by Peter Masi.
137. I note from paragraph 19 of Mr Somare's affidavit, filed 6 November 2006, that he asked to bring along a lawyer and an accountant for his interview on 27 May 2005, but that this request was declined.
138. At this point I go back to Esther Arua's affidavit, she was Mr Somare's personal assistant who received calls for Mr Somare. From her records, Mr Gabe Hekoi called Mr Somare's office and an appointment was made for Mr Somare to see the Chief Ombudsman, the next day.
139. On paragraph 17 of the same affidavit, Mr Somare deposes that he received a call from one of the officers of the Ombudsman Commission and was summoned to appear before the Ombudsman Commission for an interview.
140. On paragraph 19, he said when he asked to bring a lawyer or an accountant, that request was declined. It would appear then that the discussion to bring a lawyer and an accountant may have been with Mr Gabe Hekoi, an officer of the Commission, and not Mr Masi.
141. Mr Masi said he was not aware of the meeting and so the officer who Mr Somare spoke to may have been acting on his own accord.
142. Mr Somare in his oral evidence did say there were discussions for legal representation but his lawyer advised him that such a request would agitate the Commission. Mr Masi and Mr Hekoi were not cross examined on this aspect of the allegations.
143. If Mr Somare did not request for a lawyer at the interview on 27 May 2005, as records show, I do not consider that any breach of natural justice occurred there.
144. Peter Masi or one of the officers of the Commission could have raised it at the interview but there is no record of it and so I am left to find that there was no error in practice and procedure or of law committed there such as to uphold this ground.
145. Accordingly, I reject ground 25 of the review as having no basis.
Ground 26:
146. This ground has been discussed earlier in relation to Ground 23. The request for appointment of an independent investigator under s.19 will trigger a process which will determine whether the three (3) Ombudsman Commissioners are guilty of misconduct in office and render them to be referred to the Public Prosecutor for prosecution before a Leadership Tribunal. That to me is another process and another thing. But the applicant is in his right to lodge a complaint for purposes of an investigation under the Leadership Code.
147. As to the request for an independent investigator under s.19 of the OLDRL to investigate issues of bias and prejudices, this Court is the proper place to investigate through the judicial review process and this is it. The Court is doing the very thing now. The applicant need not apply under s 19 of the Organic Law for the review.
148. When questioned as to why no independent investigator was appointed pursuant to a complaint by the applicant, Ila Geno said the Commission has a discretion to decide on that and in this case Mr Toguata said Chief Ombudsman and John Nero caused an investigation to be carried out and that the Leadership Branch of the Ombudsman Commission carried out an investigation and a report was forwarded to Legal Counsel and that the applicant, being the complainant, was not entitled to know the Commission's decision except the person being investigated, and in this case, Peter Masi.
149. The letter of 19 April 2005 was not a request for an independent investigator to investigate the applicant, rather, it was a request to appoint another investigator to investigate the Ombudsman Commission, more so Ombudsman Peter Masi, on the issue of bias and prejudice, but the role to investigate into bias and prejudice as to how the applicant was referred and whether proper legal procedures were followed belongs to this Court and that is what it is doing now. In my view it was an error by the applicant to request the Commission to investigate allegations of bias and prejudice for purposes of the review. The proper forum to raise those are in Court through the judicial review process, under s 217 (6) of the Constitution.
150. Accordingly I find no merit on this ground and dismiss it.
Ground 27:
151. This ground is not a ground. It is a statement which is admitted by Mr Masi that he is from Branda village in the Angoram District.
Ground 28:
152. Mr Masi said in his evidence that he had no cause to declare any conflict of interest because he has been separated from his Branda home, from his relatives and even his mother for a long time. He said the persons named as his relatives and who stood for elections against the applicant and him have been separated from each other for 3 to 5 generations. He said he lived a separate life from them and they live their own lives.
153. This ground has also been discussed under Ground 23 and what is said there are adopted for this ground.
154. I accept Mr Masi's evidence that he had no cause to declare any conflict of interest situation when dealing with Mr Somare's case. If Mr Somare had any concern that Peter Masi may be biased he ought to have raised it at the earliest possible time to be fair on Peter Masi.
155. The evidence by Francis Yangmari to come to this Court and try to connect those 3 unsuccessful candidate's election losses to Mr Masi is too remote in my view, and is mischievious. There is no evidence that Peter Masi campaigned for them and supported them in their endeavour to get elected.
156. Accordingly I dismiss this ground as well.
Ground 29:
157. The same is said for this ground. I have covered this ground under Ground 23 and Ground 28 above. This ground is also dismissed.
Ground 30:
158. I agree with submissions for the First Respondent that this ground is not consistent with the facts.
159. There is no evidence that the applicant was forced to attend the interview on 27 May 2005 and there is no evidence that an Ombudsman or an Officer of the Ombudsman Commission declined the applicant's request to bring along a lawyer to the interview. It was the applicant's own lawyers who intimated to him that to bring a lawyer may "work against" him. The applicant may have taken to heart that advice from his own lawyers.
160. There is no record of the applicant asking for his lawyer to be present during the interview on 27 May 2005.
161. Accordingly, I dismiss the ground as having no merit.
Ground 31:
162. This ground is not totally consistent with the facts. There is no evidence that the meeting of 27 May 2005 was forced. There is evidence of attempts to have meetings with the applicant (see Esther Arua's affidavit). There is no evidence that Mr Somare was forced to attend the interview on 27 May 2005. The diary notes from Esther Arua are helpful on this ground that there was no force used to get the applicant to attend the meeting. Moreover there is no evidence that the applicant objected to the calling of the meeting or objected to attend the meeting. There is no evidence that the applicant objected and that no prior written notice was given to him to prepare for the interview.
163. The reason the interview was aborted was because there was confusion as to what documents should be presented by the applicant. Mr Masi asked for the letter that the applicant was responding to from the Commission but that letter could not be produced and so Mr Masi decided that the interview be stopped.
164. Mr Masi was confused and so was the applicant as to what documents the Ombudsman Commission wanted him to produce.
165. This ground of review has no merit as there is no evidence that the applicant was forced to the meeting of 27 May 2005. The only thing that can be said about the meeting was it was poorly arranged and managed.
Ground 32:
166. The ground alleged that the Ombudsman Commission failed to properly investigate the acquittals lodged by the applicant with the Office of Rural Development which is the primary implementing Agency of the DSGs.
167. The direction by the Commission dated 4 December 2002 under s 27(4) of the Constitution was for the applicant to acquit to the Office of Rural Development and a summary to the Commission by 31 January 2003.
168. By that time the Commission already had in its possession information and documents from the banks and other sources. The summary of the acquittals would determine whether there was a prima facie case to refer the applicant to the Public Prosecutor.
169. The Ombudsman Commission did not have to get the applicant's acquittals from the Office of Rural Development. The direction was to the applicant to produce the documents and it was not produced.
170. The acquittals to the Office of Rural Development could have been used to satisfy the Ombudsman Commission but the Commission is not necessarily bound by those acquittals. It can ask it directly from the applicant as it did in this case. In other words the acquittals to the Office of Rural Development is not acquittals to the Ombudsman Commission for its purposes. It was not unreasonable to direct the applicant to produce the acquittals in my view.
171. Acquittals for the purpose of the Ombudsman Commission may not be for the same reasons as acquittals to the Office of Rural Development. But when one is directed to acquit to the Ombudsman Commission, it must mean something to be directed to do something about that direction.
172. The assertion that failure to investigate fully at the Office of Rural Development is evidence of bias, is in my respectful opinion, without any substance and basis. That contention is not supported by evidence. The point has been made that a direction was issued for all Members of Parliament to acquit their 2002 DSG funds to the Ombudsman Commission. That is a direction under s 27(4) of the Constitution which the Ombudsman Commission had powers to do. To suggest that the Commission was biased when it did not investigate records of the Office of Rural Development is, with respect, not supported by evidence because the applicant was under a duty to comply with the direction issued under s 27(4) of the Constitution. It was a direction given to all the 109 Members of Parliament and no one was singled out such that one would feel that he was being singled out.
173. I would therefore dismiss this ground as being without merit and is too remote.
Ground 33:
174. This ground alleged that the wrong guidelines were applied in auditing the applicant's acquittals.
175. Ila Geno in his affidavit filed on 04 December 2006 deposed that the Commission was aware of the 1998 PNG/DSG guidelines issued in 1998 and that it was also aware of the PNG/DSG guidelines issued in 2000. The Commission relied on the 2000 DSG guideline.
176. Guidelines are just that - guidelines. They are not law. They do not have the force and effect of law in their applications or non applications.
177. The issue of which guidelines were the applicable guidelines should, with respect, be put to rest before a Court or a Leadership Tribunal.
178. For these reasons I dismiss that ground as being without merit.
Ground 34:
179. This ground is similar to Ground 33, and in my view, should properly be before another forum. The same arguments apply here and are adopted from the last ground.
180. Accordingly this ground is dismissed.
Ground 35:
181. This ground has already been addressed in the earlier deliberations on grounds 23 and 24 and they are adopted and repeated to answer this ground.
182. This ground is dismissed as having no merit.
Ground 36:
183. Similarly, this ground has been addressed in Grounds 23, 24 and 26 and the same are repeated and adopted to answer this ground. Accordingly, this ground is dismissed as having no merit.
Ground 37:
184. This ground alleged that the publication of referral to the Public Prosecutor in the daily newspapers on 2 March 2006 was a breach of secrecy under s 20 of the Organic Law on the Ombudsman Commission.
185. Section 3 of the Organic Law on the Ombudsman Commission says:
3. Application of this Law.
Except as provided by any other law, this Law does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.
186. Section 20 of the Organic Law on Ombudsman Commission therefore does not apply to investigations conducted under the OLDRL. See Ombudsman Commission v Donohoe (1985) PNGLR 33.
187. I have read the press release issued by the Ombudsman Commission and I agree that it is somewhat detailed and may not necessarily be the appropriate kind of media statement at the time.
188. Ila Geno and Peter Masi both said when such referrals were made the Ombudsman Commission followed it up with a press release of a leaders referral. It may be a good practice to make a press statement but a press statement should be brief and not be argumentative in support of the referral. A media trial should be avoided in regard to such referrals.
189. The applicant alleged that the press statements were designed to injure and publicly persecute him and is further proof of bias on the part of the Ombudsman Commission.
190. In answer to that allegation, Ila Geno said it is customary to release a press statement of every referral to the Public Prosecutor and that the statement was not influenced by bias.
191. It is in my respectful view not improper to inform the public of the referral of the applicant to the Public Prosecutor, because the public has the right to know and more so the applicant's constituents have the right to know what or why their elected representative is being referred.
192. If there is that duty to inform the public and the electorate, I cannot therefore with respect see the press statement as being influenced by bias. To me, it is what is in the statement that matters. What should be in the press statement concerning a referral is the concern here. Every case is different and I cannot say what a press statement should entail except to say that it should be fair and accurate and not sensational and insensitive.
193. In this case I do not find the press release was influenced by bias but I do agree that it may have contained material that the public did not need to know at that stage, and was not fair to the applicant, but again I do not consider it malicious so as to amount to bias and so I dismiss this ground as having no merit.
Ground 38:
194. This ground alleged that the plaintiff wrote to the first Defendant to investigate Ombudsman Peter Masi on allegations of bias or perceived bias on 19 April 2006. It took 6 weeks for the First Defendant to reply and the applicant alleged that the delay of 6 weeks is proof of bias.
195. I have covered the aspect of s 19 of the OLDRL earlier in grounds 23, 24 and 26 and I repeat them without saying them again.
196. As alluded to earlier, by 19 April 2006 the applicant had been referred to the Public Prosecutor. The Ombudsman Commission was asked to be investigated by the applicant by an independent investigator for alleged bias under the Leadership Code pursuant to s 19 of OLDRL for misconduct in office. That is a matter I consider to be a separate matter, which the applicant was entitled to request under s 18(1) of the OLDRL. By s 18(3) the Commission may decide not to investigate for cause. That power is discretionary.
197. The allegation of bias against the Commission in the investigation and then referral of the applicant is a matter which this Court is now addressing. This is in line with the letter of request dated 19 April 2006 from the applicant.
198. The request was for the Ombudsman Commission to be investigated and more so Ombudsman Peter Masi. The Commission is under no obligation to inform the Complainant of its findings or its decision. Only the "investigated" is informed. This is in compliance with s 20 of the OLDRL. But again the Commission has a discretion to either investigate or not to investigate – s 18(3) OLDRL.
199. To suggest that a delay of 6 weeks is proof of bias is in my respectful view not evidence of bias in this case. Accordingly I dismiss this ground.
Ground 39:
200. What is said in relation to Ground 38 is repeated here. Again, with respect, I dismiss this ground as having no merit.
Ground 40:
201. I have covered this ground when dealing with grounds 23, 24 and 26 of the review. I repeat them here for this ground.
202. There was nothing to be gained. If any statements were made by Toguata in relation to developmental issues of the Angoram District or electorate it should be taken in its proper context.
Ground 41:
203. This ground alleged that Mr John Toguata made highly inflammatory remarks regarding the applicant and his father, the Prime Minister of this Country for failing to provide government services to the people of Angoram.
204. Mr Toguata in his affidavit evidence and oral evidence denied making those highly inflammatory statements. Mr Toguata in cross-examination said he could have been misunderstood or that what he said was taken out of context by witnesses Peter Faringua, Robert Kwaisombi and Michael Ningis.
205. I consider Mr Toguata's evidence to be more truthful than Francis Yangmari, Robert Kwaisombi and Michael Ningis because, firstly, it is very easy to turn some well intended speech into something negative and out of context and secondly, to me they are just lying to impress the applicant.
206. Accordingly I dismiss this ground.
Ground 42:
207. This ground alleged that when Mr Toguata went to Angoram he told the people that his trip was funded by AusAid and not the PNG government and that when he made the statement it was intended to attack the integrity of the applicant and as such there was ingrained bias on the part of Mr Toguata and the Ombudsman Commission.
208. I do not think I should read into Mr Toguata's statement other innuendos other than the fact that the trip was funded by AusAid as part of its Law and Justice Sector Programme activities. This ground is mischievous and an embarrassment to the PNG government. I dismiss this ground outright.
Ground 43:
209. This ground alleged that a foreign government funding of the Ombudsman Commission's activities is compromising the Constitutional independence of the defendants.
210. This ground again with respect is vexatious and embarrassing and I will not read into it, any other motive other than a genuine development partnership arrangement. AusAid funding is available to various Government Departments and Agencies to access at no cost to PNG and is Australia's generous assistance to its nearest neighbor and a former colony.
211. Again I dismiss this ground.
Grounds 44 and 45:
212. These grounds alleged breach of the rules of natural justice. While the grounds refer to "paragraph 3". I cannot put my finger to which paragraph 3 this ground relates to. I will, however, deal with this ground generally as it relates to breach of natural justice. Section 59 of the Constitution says that the minimum requirement of natural justice is the duty to act fairly and in principle to be seen to act fairly.
213. All the evidence is before the Court relating to investigation by the Ombudsman Commission, the involvement of Ombudsman Peter Masi and the involvement of Mr John Toguata and I have read them. I have also read the evidence of the applicant and his witnesses.
214. The applicant alleged that the decision to refer him to the Public Prosecutor was arbitrary, unreasonable and capricious.
215. When one goes through the chronology of events one will note that on 23 February 2005 the Ombudsman Commission served on the applicant his right to be heard notice. The applicant was given 21 days to respond thereafter further extensions were given for the applicant to furnish to the Commission the relevant acquittals. The applicant produced some but not all. He promised to produce them but never did in time before the referral. I refer to paragraphs 51, 52, 53, 54, 55, 56, 57 and 58 of this judgment which refer to various events that took place before the meeting on 27 May 2005.
216. In the meantime the Ombudsman Commission had other evidence from other sources and coupled with the evidence of documents produced by the applicant formed a view that a prima facie case was established and so on that evidence referred the applicant.
217. Was the referral arbitrary? The chronology of events will help to answer this question. Once again I refer to paragraphs 51 to 58 inclusive of this judgment. They explain what happened prior to meeting of 27 May 2005 and takes us to 27 May.
218. What happened at the meeting is critically important. I will now refer to the transcript of the recording of that meeting.
219. When I got back to the transcript of the meeting on 27 May 2005 I note on page 14 of the interview Peter Masi said:
"So this is what we'll do now. We will suspend this one now ....... To inform the Commission how long it will take to respond to us so we can analyse things quickly. Analysing is awaiting your response so I think we will live it like this."
220. Then on page 15, Gabe Hekoi said:
"I think Ombudsman and Minister, if in the process of responding if the Member can just supply us those as he had indicated they are working on the invoices or the actual acquittals supporting".
221. Then Peter Masi said:
"Submittim all dispela i kam".
222. Then on page 15 as well the applicant said he will go and read the letters again and make sure that whatever needed to be done he would have it done and that he would contact and advise.
223. From that transcript, it appears to me that the applicant and the officers of the Commission and Peter Masi were in agreement for the applicant to make available documents still to be produced. It was on that understanding that the meeting came to an end. But even before the very end the applicant said on page 15:
"I'll speak to Mr Wararu, he's, they are the ones who hold my file in East Sepik so bai go tasol long hap na toktok wantaim all . . . I'll speak to him and get that done!"
224. The reference to Mr Wararu was because all the DSG acquittals were in Mr Wararu's office – Mr Wararu being the Governor of the East Sepik Province.
225. In other words, the applicant would get the DSG acquittals from Mr Wararu's office and provide them to the Commission and the applicant was told that Gabe Hekoi would liaise with Mr Wararu's office on that matter.
226. It is clear there was no mention between the parties present to have another meeting with the applicant. The applicant never asked to have another right to be heard meeting.
227. I refer to paragraphs 95, 96, 97, 98, 99, 100, 101 and 102 of this judgment. Those paragraphs set out what happened from 27 May 2005 to the time of referral. I need not set them here again. They, in my view, adequately explain what happened during the intervening period.
228. I note that Mr Somare in his affidavit filed on 6 November 2006 either conveniently left out those significant events or inadvertently left them out.
229. Those events taken in their proper perspective to me with respect is evidence to support the contention that the referral was not arbitrary and I reject the contention that it was arbitrary.
230. Was the referral unreasonable?
231. Again taking into account all that happened from 27 May 2005 up to 28 February 2006 the evidence does not support an unreasonable referral. I reject this contention as well.
232. Was the decision capricious? Capricious is an adjective and comes from the noun caprice which means – sudden change in attitude or behavior with no obvious cause; (Oxford Advanced learners Dictionary).
233. Was the decision to refer the applicant to the Public Prosecutor capricious? Again from all of the evidence, with respect, I do not think the decision to refer was capricious. It was obvious the Ombudsman Commission was going to have to make a decision sooner and it did. In that regard, I do not consider the decision to refer to be capricious. The Commission received the relevant acquittal documents and therefore made the decision to refer.
234. The decision to refer was in my respectful opinion not unreasonable and capricious in the circumstances and as such the Ombudsman Commission did not act in excess of its jurisdiction to refer.
235. In the end result, all the grounds for judicial review are dismissed as having no merit.
236. Costs of this judicial review are awarded to the Respondents.
__________________________________________
Posman Kua Aisi: Lawyers for the Applicant
Ombudsman Commission: Lawyers for the first and Second Respondent
Solicitor General: Lawyer for the Third and Fourth Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2011/55.html