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Konivaro v Zurenoc [2014] PGNC 301; N5846 (23 December 2014)

N5846

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 582 OF 2014

BETWEEN

VELA KONIVARO
Plaintiff

AND

HON. THEO ZURENUOC, MP
SPEAKER OF PARLIAMENT
First Defendant

AND

HON. PETER O'NEILL, CMG, MP
CHAIRMAN AND OTHER MEMBERS OF PARLIAMENT COMPRISING THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND

PODI KOHU, AS ACTING CLERK OF PARLIAMENT
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J
2014: 10th & 23rd December

JUDICIAL REVIEW – Review of decision to suspend – Suspension of Clerk of Parliament – Referral to Tribunal for investigation – Procedure for suspension and referral discussed – Breach of natural justice – Denial of right to be heard before suspension and referral to Tribunal for investigation – Whether right to be heard available – Constitution – Section 59 – Organic Law on Certain Constitutional Officer-holders – Section 7 – Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders – Sections 5 & 9.

Cases cited:

Vela Konivaro v. Hon. Theo Zurenuoc, NEC & The State (2014) N5724
Francis Damem v. Mark Mapakai as Minister for Justice & Ors (2004) N2730 Joseph Klapat v. NEC & Ors (2014) N5536
Supreme Court Reference: Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
Rimbink Pato v. Manjin (1999) SC622
Simon Ketan v. Lawyers Statutory Committee (2001) N2290
Pius Nui v. Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765

Counsel:

Mr J. Issack, for Plaintiff
Mr P. Kuman, for First and Fourth Defendants
Mr I. Molloy, QC with Mr N. Tame, for Second, Third and Fifth Defendants

JUDGMENT
23rd December, 2014

1. MAKAIL, J: This is an application for judicial review. Leave was granted on 09th September 2014: see Vela Konivaro v. Hon. Theo Zurenuoc, NEC & The State (2014) N5724. The Court has now heard all parties in relation to the grounds of review and also considered the written submissions presented by them.

Evidence

2. The following affidavits were tendered by consent and marked exhibits.

• Affidavit of the Plaintiff sworn on 23rd August 2014 and filed on 24th August 2014 (Exhibit "P1").
  
• Supplementary Affidavit of the Plaintiff sworn on 27th August 2014 and filed on 28th August 2014 (Exhibit "P2").
  
• Additional Affidavit of the Plaintiff sworn and filed on 24th October 2014 (Exhibit "P3").
  
• Affidavit of the First Defendant sworn and filed on 22nd September 2014 (Exhibit "D1").
  
• Affidavit of Ilagi Veali sworn and filed on 04th November 2014 (Exhibit "D2").
  
• Affidavit of Nicholas Tame sworn and filed on 06th November 2014 (Exhibit "D3").
  

Undisputed Facts

3. From these affidavits, the following are the undisputed facts:

• In May 2013, the plaintiff was appointed Clerk of the National Parliament of Papua New Guinea. The Clerk of Parliament is a Constitutional Office-holder.
  
• A number of allegations of abuse of office and misuse of funds were raised against the plaintiff. Some of them were unauthorised changes to bills passed by Parliament and misuse of Parliament funds to renovate his house including building a fence around it.
  
• In a letter to the plaintiff dated 09th October 2013, the first defendant gave the plaintiff fourteen days to resign, if not, he would be referred to the Prime Minister for further disciplinary action.
  
• The plaintiff did not resign. Instead, on 19th October 2013, the plaintiff wrote to the first defendant and responded to the allegations.
  
• The first defendant set up an Investigation Committee to investigate the allegations and report to him. It conducted its investigation and reported to him. The first defendant referred the plaintiff to the second and third defendants for further disciplinary action.
  
• On 07th August 2014, the second and third defendants made a decision to firstly, suspend the plaintiff, secondly, request the Chief Justice to set up a Tribunal to investigate allegations against him and thirdly appoint the fourth defendant as acting Clerk of Parliament. It should be stated here that at the date of trial, the fourth defendant had since died.
  
• On 13th August 2014, the decision was published in a notice in the National Gazette and communicated to the plaintiff on 20th August 2014.
  
• On 24th August 2014, he commenced proceeding to have the Court review the decision.
  

Grounds of Review

4. The grounds of review are:

4.1. Breach of natural justice.

4.2. Ultra vires.

4.3. Bad faith.

4.4. Bias.

4.5. Unreasonableness.

Breach of Natural Justice

5. From the submissions, the plaintiff's main ground for seeking review of the decision is breach of natural justice. For this ground, the plaintiff mainly repeated his submissions made in the leave application. The gist of his submissions is that he was not given the opportunity to be heard before the second and third defendants made the decision to suspend and refer him to the Tribunal for investigation.

6. He claimed that while section 9 of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders which provides for suspension of the Clerk of Parliament is silent on the question of right to be heard, it is implicit in the referral process that such a right is available in light of the importance of the Office of the Clerk of Parliament as one of the Constitutional Office-holders under section 221 of the Constitution.

7. He submitted that the second and third defendants as the decision making authority must observe the principles of natural justice under section 59 of the Constitution and the minimum requirement is to afford him the opportunity to respond to the allegations before suspending and referring him to the Tribunal for investigation.

8. Even if the defence were to argue that he was heard when he responded to the allegations in his letter to the first defendant dated 19th October 2013, it was not formally a response as he was given an ultimatum to resign within 14 days and secondly, there is no evidence that this letter was presented to the second and third defendants for consideration before they made the decision to suspend and refer him to the Tribunal for investigation.

9. The first and fourth defendants submitted that this ground is misconceived because there is no right to be heard in the process of suspension and referral of a Clerk of Parliament. That right can only be availed of at the hearing before the Tribunal. The Court must not unnecessarily interfere with the referral process and must allow it to be completed.

10. The second, third and fifth defendants submitted that to suggest that a right to be heard before the plaintiff is suspended and referred to the Tribunal is a ridiculous notion because firstly, such a proposition would suggest a right that is not intended to be available to the plaintiff in the scheme of the investigation and disciplinary process established under the Organic Law on Certain Constitutional Office-holders and Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders.

11. This right is not available because the appointing authority is not vested with investigative powers, expertise and time such that it should be required to give the plaintiff an opportunity to respond to the allegations before making a decision to suspend and refer him to the Tribunal for investigation. It is not its function. Its function is if it is satisfied that the question of the removal from office of the Clerk of Parliament should be investigated, it shall request the Chief Justice to appoint a Tribunal to hear and determine the matter. This was what the second and third defendants did.

12. Secondly, the right to be heard is at the Tribunal and it is the function of the Tribunal to investigate, make appropriate findings and recommendation to the appointing authority. Following on from these reasons and finally, they submitted the proceeding is an attempt to derail the whole process of referral of the plaintiff to the Tribunal for investigation.

13. I consider that this ground raises the fundamental issue whether the plaintiff has a right to be heard before the decision to suspend and refer him to the Tribunal for investigation. The grounds of ultra vires, bias, bad faith and unreasonableness of the decision are dependent, if not intertwine this ground.

14. Section 9 of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders provides for suspension of Constitutional Officer-holders, in this case, the Clerk of Parliament. It states:

"9. Suspension.

(1) Where a question has been referred to a tribunal under this Law, the appointing authority —

(a) may suspend the constitutional office-holder from office pending the report of the tribunal; and

(b) may remove the suspension at any time; and

(c) shall remove the suspension where the tribunal does not recommend removal from office.

(2) Unless otherwise determined by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, the suspension shall be on full pay.

(3) Where at the time of the suspension a suspended constitutional office-holder was dealing with any quasi-judicial proceedings, he may continue and complete those proceedings, unless the appointing authority otherwise orders." (Underlining is mine).

15. As the Clerk of Parliament is a Constitutional Office-holder, by virtue of section 7 of the Organic Law on Certain Constitutional Office-holders, the appointing authority of the Clerk of Parliament is the Head of State, acting with, and in accordance with, the advice of the NEC. Section 7 is set out in full below:

"7. Appointment.

The Clerk of the National Parliament shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council after receiving reports from the Speaker and the appropriate Permanent Parliamentary Committee."

16. The suspension and removal of the Clerk of Parliament are provided for in the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders.

Sections 4 to 9 of Part III of this Organic Law deals with removal of Constitutional Office-holders from office. Section 4 establishes the Constitutional Office-holders Rights Tribunal comprising of three Judges of the National Court. Section 5 deals with referral of matters to the Tribunal, section 6 deals with the procedures of the Tribunal, section 7 deals with the grounds of removal and section 8 deals with removal from office. Section 9 deals with suspension.

17. As I observed in my decision on leave (supra), unlike suspension of Departmental Heads which is a one-off stand alone decision and is reviewable, suspension of a Clerk of Parliament under the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders is not and is not open to judicial review: see Francis Damem v. Mark Mapakai as Minister for Justice & Ors (2004) N2730 and Joseph Klapat v. NEC & Ors (2014) N5536.

18. I also observed in my decision on leave (supra) that when sections 5 and 9 of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders are read together, suspension of the Clerk of Parliament arises when the appointing authority is satisfied that the question of removal from office should be investigated and requests the Chief Justice to appoint a Tribunal to hear and determine the matter. Section 5 states:

"5. Referral of matters to the tribunal.

(1) If the appointing authority is satisfied that the question of the removal from office of a constitutional office-holder should be investigated, it shall, by notice in writing to the Chief Justice, request that he appoint three Judges to be the Chairman and members of the tribunal to hear and determine the matter.

(2) Nothing in Subsection (1) prevents the Chief Justice from appointing himself as the Chairman or a member of the tribunal." (Underlining is mine).

19. I now confirm this observation. It is my view that suspension of the Clerk of Parliament arises when the appointing authority is satisfied that the question of removal from office should be investigated and requests the Chief Justice to appoint a Tribunal to hear and determine the matter.

20. In this case, it is common ground amongst the parties that the Organic Law on Certain Constitutional Office-holders and Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders are silent on the question of right to be heard before the Clerk of Parliament is suspended and referred to the Tribunal for investigation.

21. Given this, I accept the defendants' submission that there is no right to be heard on the question of suspension and referral of the Clerk of Parliament when the appointing authority is considering referring the question of removal from office to the Chief Justice to appoint a Tribunal to hear and determine a matter. That right can be availed of at the hearing before the Tribunal.

22. This is where the Tribunal as the decision making authority will afford the plaintiff the right to be heard consistent with the requirement to observe the principles of natural justice under section 59 of the Constitution. At the Tribunal, the plaintiff will be given the opportunity to respond to the allegations. He may admit or deny them. He may explain them by giving details and supplying documents to the Tribunal to support his defence.

23. He may also in his defence object on the ground of bias and argue that the first defendant was bias or acted in bad faith or ill-will when he referred him to the second and third defendants for further disciplinary action. He may also bring to the attention of the Tribunal that the first defendant gave him an ultimatum to resign within 14 days and failing which, he would be referred to the second defendant for further disciplinary action.

24. It will be also open to him to argue that the allegations are unfounded and without merit and that the first defendant took into account irrelevant matters or failed to take into account relevant matters when he referred him to the second and third defendants for further disciplinary action.

25. Furthermore, he may in his defence object on the ground that the appointing authority did not follow procedures when it referred him to the Tribunal. And I accept the first and fourth defendants' submission that he is not prejudiced if procedures were not followed to suspend and refer him to the Tribunal for investigation, which I find is not the case. I accept the reason they gave for this proposition and that is when the plaintiff appears before the Tribunal, it must first determine whether it has jurisdiction to deal with the matter.

26. The plaintiff has the opportunity to raise issues of competency and jurisdiction at this stage which would include questions on "whether proper procedure prescribed by law have been followed in referring the matter to the tribunal." see Supreme Court Reference: Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011.

27. For example, the plaintiff may object on the ground that the private investigation committee established by the first defendant who investigated and made recommendation to the first defendant to have him referred to the Tribunal for investigation had no power or authority. As a consequence, the second and third defendants acted in excess of their jurisdiction when they relied on the report by this committee and suspended and referred him to the Tribunal for investigation.

28. Another ground of objection which I note the plaintiff did not pursue in this proceeding and rightfully so because it was not raised as a ground of review but would be open to him to raise at the Tribunal hearing is that, the defendants should have adopted the procedure for suspension and referral outlined by the Supreme Court in Supreme Court Reference: Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (supra). This procedure is that the Ombudsman Commission investigates the allegations and refers them to the Public Prosecutor who then requests a Tribunal to be established if the allegations constitute misconduct in office.

29. This is the investigation and referral process which I briefly touched on in my decision on leave (supra). It includes a right to be heard before the Ombudsman Commission under section 20(3) of the Organic Law on Duties and Responsibilities of Leadership.

30. Be that as it may, this procedure is not the subject of review and point of contention amongst the parties. It is the process adopted and followed by the defendants to suspend and refer the plaintiff to the Tribunal for investigation which is the subject of contention and which I have found does not include a right to be heard. The reason is as contended by the second, third and fifth defendants. The appointing authority is not vested with investigative powers, expertise and time to conduct investigation and give the plaintiff an opportunity to respond to the allegations before making a decision to suspend and refer him to the Tribunal for investigation. It is not its function.

31. Its function is if it is satisfied that the question of the removal from office of the Clerk of Parliament should be investigated, it shall request the Chief Justice to appoint a Tribunal to hear and determine the matter. This was what the second and third defendants did.

32. The end result, I conclude that the plaintiff's complaint about that the first defendant being bias, acted in bad faith or ill-will and acted unreasonably when he referred him to the second and third defendants and in turn, not been heard before he was suspended and referred to the Tribunal for investigation are matters prematurely raised under this current proceeding. They should be left to the Tribunal, once established, to deal with them.

33. Although not obliged, the plaintiff responded to the allegations in his letter to the first defendant dated 19th October 2013 and I conclude that he has prematurely responded to them. The appropriate time and forum to respond to them is at the Tribunal hearing.

34. It follows that suspension is part of the disciplinary and investigation process. The end of the process is the hearing before the Tribunal. It is for this very reason that I accept the defendants' submission based on well established case authorities as cited by the defendants in their submissions in Rimbink Pato v. Manjin (1999) SC622; Simon Ketan v. Lawyers Statutory Committee (2001) N2290; Pius Nui v. Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765 and many more that the Court should not interfere with administrative steps of an inquisitorial or investigative process. The process must be allowed to take its course and be completed.

35. For these reasons, I accept the defendants' submission that the proceeding is an attempt to derail the whole process of referral of the plaintiff to the Tribunal for investigation. In my view, it is an abuse of process, the relief sought by the plaintiff must be refused and the proceeding must be dismissed.

36. Given this finding, it is not necessary for me to consider the other grounds of review and submissions of parties including the submissions by the second, third and fifth defendants in relation to the plaintiff not joining the Head of State as the correct party whose decision is being impugned in this review or failure by the plaintiff to join the members of the National Executive Council.

Order

37. The orders are:

1. The relief sought by the plaintiff are refused.

2. The proceeding is dismissed.

3. The plaintiff shall pay the costs of the proceeding, to be taxed, if not agreed.
________________________________________________________________

Lawama Lawyers: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the First & Fourth Defendants
Nicholas Tame Lawyers: Lawyers for the Second, Third & Fifth Defendants