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Papua New Guinea Law Reports |
[NATIONAL COURT OF JUSTICE]
PETER IPU PEIPUL
V
SHEEHAN J., MR ORIM KARAPO and MR IOVA
GEITA
(Constituting the leadership tribunal);
OMBUDSMAN
COMMISSION OF PAPUA NEW GUINEA; AND
THE INDEPENDENT STATE OF PAPUA NEW
GUINEA
Waigani: Davani J
4, 15 March 2002
CONSTITUTIONAL LAW – Organic Law on the Duties and Responsibilities of Leadership ('OLDRL')– Leadership Code – Referral to the Public Prosecutor and the Tribunal – Ombudsmans Commissions investigations and referrals – Leader dismissed, subsequent application to National Court for leave for Judicial Review – Leave refused, subsequent Appeal to Supreme Court – Leave for Judicial Review granted.
JUDICIAL REVIEW – Determination by Leadership Tribunal – Error of law on the face of the record – (misconduct in office) meaning
CONSTITUTIONAL LAW – INTERPRETATION – provisions of Constitution and any act of Parliament must be given fair and liberal interpretation
CONSTITUTION LAW – Interpretation and application of a Constitutional law – Supreme Court correct arena – Supreme Court has original jurisdiction ss 18 of the Constitution
REVIEW IN NATIONAL COURT – Matters to be raised at review are only those that were raised at the tribunal hearing - Unreasonableness – An authority or Tribunal must act as a reasonable person would act - Severity and Penalty – Variation of Tribunals penalty only if all mitigating factors were not considered by tribunal.
Facts
The applicant was charged with five counts of misconduct in office under the Organic Law on the Duties and Responsibilities of Leadership. The charges stemmed from the recommendation of the applicant (who was then the Public Service Minister) of his brother as a member of the Public Service Commission. The applicant did not disclose to the National Executive Council (the appointing authority) that the person he was recommending was his brother. The applicant was found guilty of misconduct in office by the Leadership Tribunal on 10 April 2001. On 19 April 2001, he was recommended for dismissal by the Leadership Tribunal. The applicant applied for a judicial review of the decision of the Leadership Tribunal.
Held
1. Matters that had not been raised before the Leadership Tribunal should not be raised in a judicial review proceeding because judicial review is about fairness of procedure and fair hearing.
2. To prove that a leader had 'personal gain' before an offence can be made out under s 27 of the Organic Law on Duties and Responsibilities of Leadership is very restrictive and misleading. There is no qualification to the term 'personal gain'. It is broad and covers all situations to ensure good leadership.
3. Rectifying an error by following the correct procedure for re-appointment of the same person does not absolve the leader of misconduct in office in the first instance as provided for under the Organic Law on Duties and Responsibilities of Leadership.
Papua New Guinea cases cited
Nilkare v Leadership Tribunal (No. 2) [1998] PNGLR 472.
SCR No. 1 of 1978 in Re: Leo Morgan [1978] PNGLR 460.
Wakon v Ombudsman Commission (2001) unreported (OS No. 427 of 2001) 29.08.01.
Counsel
A Jerewai and L Tilto, for the
applicant.
D Cannings, for the second respondent.
J Kawi,
for the first and third respondents.
15 March 2002
Davani J. This is an application for judicial review seeking an order for a Writ of Certiorari to quash the decision of the Leadership Tribunal, the first respondent, of 10 April and 19 April, 2001. On 10 April 2001, the Tribunal found the applicant guilty of misconduct in office in relation to five charges brought against the applicant under the Leadership Code (the "Code"), and the Organic Law on Duties and Responsibilities of Leadership ("OLDRL"). Then on 19 April 2001, the applicant was recommended for dismissal by the Tribunal.
The Charges
The five (5) charges or allegations and the decisions in relation to each allegation are summarised as follows:
1. Allegation
The plaintiff allowed his integrity to be called into question by making submission to the National Executive Council ('NEC') which did not disclose the fact that the person whose appointment he was promoting was his brother; then participated in the NEC meeting. This is engaging in nepotism thereby breaching Sections 27(1), 27(2) and 27((5)(b) of the Constitution.
Decision
Guilty of misconduct in office. The facts of this charge were proven beyond doubt in that the leader deliberately sought to take advantage of the difference in names to conceal his efforts to arrange his brother's appointment.
2. Allegation
The plaintiff failed to reveal to the second defendant and appropriate authorities the nature and extent of the interest of an associate in a matter with which he had to deal with in his official capacity, and then dealing with that matter without good faith etc. thereby breaching Section 6(1) and 6(2) of the OLDRL.
Decision
Guilty of misconduct in office. The Tribunal found that the plaintiff did not reveal his interest to the second defendant and that he took measures to inform the second defendant only after the NEC had ratified Moses Tawa's appointment and when there was an outcry. The Tribunal found that evidence from the Secretary to the NEC, Winnie Kiap, confirmed that the plaintiff was present at the meeting of the National Executive Council on 16 December 1998 that decided on the appointment of his brother.
3. Allegation
The plaintiff failed to make a disclosure of his indirect beneficial interest in a matter he proposed to speak and vote on at a meeting of the NEC thereby breaching Section 15 (5) of the OLDRL.
Decision
Guilty of misconduct in office. The Tribunal did not accept that the leader made a disclosure of personal interest prior to speaking or voting on the appointment of his brother at the National Executive Council meeting of 16 December 1998.
4. Allegation
The plaintiff allowed his integrity to be called into question etc. by not complying with the second defendant's request and proceeding to improperly arrange the revocation and immediate reappointment of his brother, thereby violating the constitutional requirements of consultation and (again) improperly participating in a meeting of the NEC that decided on the appointment of his brother, thereby breaching Sections 27(1), 27(2) and 27(5) (b) of the Constitution.
Decision
Guilty of misconduct in office. The Tribunal found that there had been no proper consultation with the Permanent Parliamentary Committee on Appointments and that the plaintiff had violated the provisions of the Constitution that determine the appointment procedure for constitutional office holders, in particular the need for proper and adequate consultation.
5. Allegation
The plaintiff failed to reveal to the second defendant and Parliament, the nature and extent of an associate's interest in a matter in which he dealt within his official capacity and that he dealt with that matter without good faith, thereby breaching sections 6(1) and 6(2) of the OLDRL.
Decision
Guilty of misconduct in office. It was found that he concealed the appointment and immediate reappointment of his brother without disclosing that to the second defendant, although he had disclosed the first appointment of his brother to the second defendant.
Brief Facts
The brief facts giving rise to this appeal is that the applicant was charged by the second defendant with five (5) serious counts of alleged misconduct in office, which I have set out above. Briefly, the allegations arose from the applicant's appointment, revocation and re-appointment of his own blood brother, Moses Tawa to the position of Member of the Public Services Commission, when at the relevant time, he was the Public Service Minister and therefore a leader within the meaning of the Code.
A Leadership Tribunal (the first respondent herein) was constituted to hear the charges of misconduct, found the applicant guilty on all five (5) counts, then recommended his dismissal from office by way of penalty.
The applicnt then sought a judicial review of the decision to recommend his dismissal. On 5 May 2001 His Honour Justice Kandakasi refused his application for leave. The applicant then appealed to the Supreme Court, which court upheld his appeal and granted him leave to apply for judicial review. The matter was then reverted back to the National Court for the application for judicial review to be prosecuted. This is the application.
Background
For purposes of clarity, I set out a brief chronological background to this matter:
Principles Governing Application for a Judicial Review
The aim of a judicial review is not to fetter with the reasoning of the sub-ordinate authority to substitute it with the Courts own decision, the decision making process, and not the decision itself. Judicial review is concerned with the fairness of the procedure and hearing.
The circumstances under which judicial review can be sought are where the decision making authority:
(a) Lacks power to make the decision;
(b) Exceeds or abuses its power;
(c) Commits an error of law;
(d) Breaches the principles of natural justice;
(e) Arrives at a decision which no reasonable tribunal would have reached;
(f) Takes into account irrelevant considerations in its decision making process;
(g) Fails to take into account relevant considerations in its decision making process.
Grounds for Judicial Review
In this case the applicant relies on the following grounds for the judicial review:
(a) There is an error of law on the face of the record;
(b) Want of jurisdiction;
(c) Unreasonableness under the Wednesbury principles; and
(d) Severity of penalty imposed.
The applicant abandoned the grounds of bias and standard of proof on the morning of the hearing.
Submission on Grounds
Ground 1 – Error of Law on the Face of the Record
I note that the first and second grounds of judicial review relate to an interpretation and application of sections 27(1)(a)(b)(c)(d); 27(2) and 27(5)(b) of the Constitution, sections 6(1)(2) (3) and 15 of the OLDRL.
1. (A): Section 27
It is claimed that the tribunal erred in its interpretation and application of s 27 of the Constitution in two respects. First in sub-ground 1(a)(i) it is said that for misconduct in office to be proven under s 27 there has to be an element of "personal gain". Secondly, in sub-ground 1(a)(ii) it is argued that the second respondent must give a direction under s 27(4) of the Constitution before misconduct can be found under any of the other provisions of s 27.
Threshold issues
I will deal firstly with the threshold issues raised by both respondents being that the applicant is estopped from raising the various subgrounds because these issues were not raised at the tribunal hearing:
In relation to the s 27 arguments raised by the applicant, His Honour, Kandakasi J, in refusing leave, was faced with this dilemma. His Honour relied on the appeal cases for the proposition that a party is precluded from raising on appeal, matters not taken up or raised before the lower Court.
His Honour said:
"It is incumbent on a plaintiff to raise all the necessary issues. If he fails to do that, then by that conduct he is telling the decision-maker that there is no issue on matters not specifically raised by them. If for whatever reason a plaintiff fails to raise an issue or point before the decision-maker and draw to the decision-maker's attention the relevant facts and issues, he is estopped by his conduct from raising them for the purposes of getting a judicial review. The reason for this is simple. Judicial review is about fairness of procedure and a fair hearing. Therefore, before a plaintiff can be allowed to complain of unfairness to him, he must in fairness put all the issues to the decision-maker first before making such a complaint".
In this case, the applicant did not raise this ground before the Leadership Tribunal. Proceedings in an application for judicial review is about fairness of procedure and fair hearing. If these matters were not raised at the tribunal hearing, they should not be raised now in a judicial review. I say this because what is being reviewed is the decision making process and in so doing, this court must consider all that was raised at the Tribunal hearing. Grounds that were not raised at the Tribunal hearing should not be raised at the review hearing. The review hearing is akin to an appeal hearing although not the same.
I find that the s 15 (OLDRL) arguments, should not be raised by the applicant because of the reasons I have stated above.
I find that the applicant is estopped from raising those grounds in a judicial review application in the National Court.
With regard to the second threshold issue, it raises arguments relating to the interpretation and application of a Constitutional law. Although respondent's counsel did not raise it as a threshold issue, it will be dealt with as such. The law is specific that matters relating to the interpretation and application of Constitutional laws are solely within the jurisdiction of the Supreme Court. Section 18 of the Constitution states that only the Supreme Court is given "original jurisdiction, to the exclusion of other Courts, as to any question relating to the interpretation or application of any provision of a Constitutional law". That is the law and cannot be changed unless amended by Parliament.
The interpretation of a Constitutional provision falls within the domain and jurisdiction of the Supreme Court. The National Court does not have jurisdiction to deal with matters relating to interpretation and application of a Constitutional law or provision. Consequently this Court should not consider this ground as it has no jurisdiction to do so.
Having said that, strictly speaking, I should not proceed to address the grounds raised by the applicant. However, I will do so as lengthy arguments were raised by all counsels on all the grounds and the court will respond to these arguments.
1. (B): Ground 1(a)(i) – personal gain
Section 27 of the Constitution reads:
"27. Responsibilities of Office
(1) A person to whom this Division applies has a duty to conduct himself in such a way, both is his public or official life and his private life, and in his association with other persons, as not –
(a) to place himself in a position in which he has or could have a conflict of interest or might be compromised when discharging his public or official duties; or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal integrity, to be called into question; or
(d) to endanger or diminish respect for and confidence in the integrity of the government in Papua New Guinea.
(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).
(3) It is the further duty of a person to whom this Division applies –
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.
(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.
(5) A person to whom this Division applies who –
(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsections (1), (2) and (3),
is guilty of misconduct in office."
The applicant submits that the first respondent fell into an error when it failed to properly interpret and apply these provisions. The applicant argues that if the Tribunal had correctly interpreted the facts of this case, it would have found that the element of "personal gain" as provided in s 27(2) of the Constitution was not proven in that the applicant's actions in appointing his blood brother to the post of Chairman of the Public Services Commission is not in itself a "personal gain."
The applicant argues that in relation to the 1st and 4th charges of misconduct, the second respondent did not specify the breach committed by the applicant as a leader under ss 27(1)(a), (b), (c), or (d); 27(2), and 27(5)(b) of the Constitution to then prove or establish a "misconduct."
The applicant argues that because the charges were not specific he could not be held liable for breaches of any one of the duties imposed under s 27(1) and (2) of the Constitution. He also argues that there is no evidence of "personal gain" or "transaction" or "enterprise" from which he would enjoy personal gain. He argues that this is an essential element to be proven along with other elements given that the 1st and 4th charges are in the most general terms. The applicant submits that the first respondent ought to have given a liberal interpretation to the provisions of s 27 of the Constitution, particularly subsections (1), (2), (4) and (5)(b) and have them read as a whole, the result of which he submits, will be that in the absence of any evidence of "personal gain" or "transaction" or "enterprise" these charges would not be sustained.
The applicant further argues that the first defendant erred in its interpretation of s 27(1) of the Constitution when dealing with the applicant, in that the first respondent should not have charged the applicant under those provisions as it is not self-executing. The applicant's counsel urges me to consider Schedule 1.5 of the Constitution (fair and liberal meaning), and Section 158(2) of the Constitution (dispensation of justice).
It is settled law in this jurisdiction that the Constitution and any act of parliament must be given a fair and liberal interpretation as to give effect to the purpose or objective of the legislation or provision in question.
I find the contention that there must be some "personal benefit" or "personal gain" by the applicant before he could make out an offence under s 27 is a very restrictive interpretation indeed and would defeat the entire thrust and purpose of s 27 as well as the whole Leadership Code. Obviously, s 27 is not restricted to "personal gains" only, as it sets out various offences. The argument that there must be a "personal gain" before an offence can be committed under s 27 is spurious, misleading and misconceived.
The effect of a clear literal interpretation is that a leader who fails to carry out any of the obligations imposed by subsections (1), (2) and (3) commits a misconduct in office. It would defeat the purpose of the Leadership Code to require a tribunal to find that there was personal gain in every allegation of misconduct. Furthermore personal gain is an unqualified term. The Leadership Code is intended to cover a broad range of misconduct. Leaders are required to follow proper appointment procedures.
Although the applicant requests a liberal interpretation of these provisions, he in effect is very restrictive in his analysis or interpretation of the provisions in question. In saying that, I note the number of cases decided previously by the courts which have demonstrated or taken a strict approach in judicial review of decisions of leadership tribunals. Sixteen (16) judicial review cases were referred to in submissions by second respondent's counsel. These review applications were all refused by the courts, with one exception - that of Nilkare v Leadership Tribunal (No. 2) SCA 46 of 1996, decided in April 1997.
In the leave application, Justice Kandakasi made it absolutely clear that if the term "personal gain" as used in s 27(2) of the Constitution was interpreted and applied in the manner proposed by the applicant, that term will be restricted to monetary or some tangible gain only. That would defeat the purpose and aim of the constitutional provisions and the relevant Organic Law.
At this juncture, I take note of the Solicitor-General's submissions where he requested that the court remind itself of the purpose of the Leadership Code, more specifically, the case, Supreme Court Reference No. 1 of 1978 in Re: Leo Morgan where the Supreme Court held that:
"A Leader has a duty not to place himself in a position in which he could have a conflict of interest or might be compromised when discharging his duties, not to demean his office or position, not to allow his public, official or personal integrity to be called into question, not to endanger or diminish respect for or confidence in the integrity of government and not to use his office for personal gain. Again in this connection, we consider that the constitution, in so far as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders, should not be considered as a "penal" statute. In requiring a high standard of behaviour from its leaders than from ordinary citizens, it should not be considered as "penalizing" or "punishing" a leader; but as ensuring in the interest of the safety of the people that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders."
In my view, the intent or purpose of having these constitutional provisions in question was to prevent leaders from using their position and power for all manner of personal gain howsoever remote that might be. These provisions were made to ensure that leaders do not misuse their privileges or engage in corrupt practices. They are there to ensure that leaders conduct themselves in a fair and transparent manner. I am of the view also, that Parliament made no mistake in not putting any qualification to the phrase "personal gain". This was deliberately done to cover all situations, however slight it might be for the integrity of public offices and for good governance. The aim was to protect the country from unscrupulous leaders and unbecoming behaviour by our leaders. I therefore dismiss this ground.
1. (C): 1(a)(ii) – Issue of Directions, s 27(4)
The applicant argues that the Ombudsman Commission should have given or issued him a direction pursuant to or in accordance with s 27(4) of the Constitution. This direction, the applicant argues, should have been issued after receipt by the second respondent, of the applicant's letter of 29 December 1998. He argues that the second respondent should have issued directions in response to the applicant's proposal to revoke Mr. Tawa's (his brother) appointment as the Public Service Commissioner. However according to the second respondent transcript on verdict, the applicant did not disclose in that letter that prior to consideration of the NEC's submission, he had not consulted with the Permanent Parliamentary Committee on Appointments. The second respondent immediately responded by letter of 30 December 1999, setting out 12 requisitions for the applicant to respond to. The applicant, the first respondent found, did not respond to those requisitions, which were due on 5 January 1999, and ultimately receive advice from the second respondent, which was his original intention. The applicant sent a submission to the NEC seeking and obtaining a revocation of his brother's appointment. The second respondent learnt of this in February 1999. I consider that the second respondent did issue the "direction" the applicant now requests, which is its letter of 30 December 1998. These directions need not be specific (s 27(1) of Constitution) and can be general statements (s 27(4) of Constitution).
For the applicant to say that the second respondent did not issue directions is hypocritical and outlandish considering that the applicant, without responding to the second respondent's requests or directions, (letter of 30 December 1998) immediately, relying on fraud and deceit sought to and did revoke his brother's initial appointment and engineered his subsequent reappointment.
A similar argument was recently considered by the National Court in Wakon v Ombudsman Commission (OS No 427 of 2001, 29.08.01). Salika J., accepted the Ombudsman Commission's response that there was no obligation to give a direction to Mr. Wakon under s 27(4) of the Constitution prior to making a finding that there was a prima facie case that he had been guilty of misconduct in office. Further the applicant's argument was not consistent with s 27 of the Constitution. The court there held that the power of the Commission to give direction is discretionary. The exercise of that discretion is in no way a precondition to a finding that there is prima facie evidence of misconduct in office. It is often simply not possible to give directions before the misconduct occurs.
His Honour accepted the Ombudsman Commission's interpretation of s 27(4). He conceded that "it is an arguable proposition that perhaps referral should be the last resort...". But he concluded that: "In the ultimate, however, it is entirely a matter of discretion for the Ombudsman Commission" and that "this Court should not interfere with that discretion unless it is shown that the discretion has not been lawfully exercised."
Therefore, this ground of review would require the court to find that the interpretation and application of this critical provision of the Leadership Code has been misconstrued by the Ombudsman Commission, the Public Prosecutor, numerous leadership tribunals and the National Court and the Supreme Court for more than 26 years. That is an extreme, hypothetical scenario but which is not forthcoming or apparent in this case.
The interpretation of s 27 advanced by the applicant is simply not available
on a literal reading of the section and if accepted would
make a mockery of
enforcement of the
Leadership Code.
I therefore dismiss this ground.
1. (D): Ground 1(b); Misconduct in office – Section 6 of OLDRL.
This ground arises from the 2nd and 5th charges relate to contraventions of s 6(1)(2) of the OLDRL wherein the applicant failed to disclose or reveal his interests to the Ombudsman Commission.
The applicant concedes that such disclosure must be made prior to taking action on the matter. He however, submits that by the revocation of Mr. Tawa's December 1998 appointment and adoption of the correct process on 13 January 1999, this error was rectified. The applicant submits that his letter of 29 December 1998, disclosed the interest of the applicant's brother Mr. Moses Tawa and that if the second respondent upon receiving the applicant's letter of 29 December 1998, considered such disclosure inadequate, it did not say so in its letter of 30 December 1998.
It is argued that the Tribunal erred in its interpretation and application of s 6 of the OLDRL in two respects. First, in sub-ground 1(b)(i) it is argued that it is sufficient for a leader to reveal an associate's interest to the Ombudsman Commission after he deals with a matter. Secondly, in sub-ground 1(b)(ii) it is argued that this was a case in which the exception provided by Section 6(3)(b) of the OLDR applied.
1(b)(i) – when does a leader reveal his/her interests?
Is the applicant correct in his interpretation as portrayed above? Such an interpretation is plainly inconsistent with the way in which section 6 is meant to operate. I see that section 6 creates two separate "misconduct in office" offences. First, where he fails to reveal (re section 6(1)) and secondly, he has an interest in a matter which he has to deal with in an official capacity and he deals with it. The interpretation by the applicant is completely wrong. These subsections require that a leader reveal his interest before dealing with a matter. The exceptions in s 6(3) do not apply to the applicant. The Tribunal made no error of law in this regard.
1(b)(ii) – whether an exception under section 6(3)
The applicant submits that the first respondent erred by not accepting that the leader, dealt with the matter by urgent necessity. However, I note that the Tribunal did address this in its decision on guilt. The Tribunal was concerned about the manner and speed with which the appointment was made and was satisfied that there was no urgent necessity for the appointment of the leader's brother. The Tribunal did not misunderstand the law and properly considered s 6(3) of the OLDRL. There was no error of law.
I also note that the third respondent's submissions in relation to this ground where the Solicitor-General referred to the first respondent's findings, that it took the applicant less than 8 working days from the date of his appointment as Public Service Minister (on 3 December 1998) to sponsor and eventually secure the Public Service Commission job for his brother. The applicant did this without disclosing the facts that the nominee was his brother.
The applicant's arguments that he revealed his "interests" by the act of revoking his brother's appointment and then subsequently seeking his brother's reappointment is incorrect because the applicant revoked his brother's appointment after the second respondent began inquiries.
I find that to suggest that a leader must reveal an interests after an event, i.e. after committing an offence, is to defeat the whole purpose of the Leadership Code. The court will not accept this. These grounds have no basis and are dismissed.
1. (E): Ground (1)(c) - The applicant claims the Tribunal erred in its interpretation of s 15 of the OLDRL in that there was no evidence of "direct or indirect beneficial interest". The Tribunal found there was evidence of "direct or indirect beneficial interest" in the applicant's appointment of his blood brother to a very senior post in the public Service. I will dismiss this ground as it fails to disclose an error of law on the face of the record.
1. (F): Ground (1)(d) – The applicant raises the same arguments regarding s 27 of the Constitution, but in relation to the fourth charge. I find no merit in those arguments and will dismiss this ground.
1. (G): Ground (1)(e) - The applicant raises the same arguments regarding s 6(1) and (2) of the OLDRL in relation to the fifth charge. I find no merit in this ground and dismiss this ground.
2: Ground 2 - Want of Jurisdiction
I find the Tribunal did act within its powers when it did. In any event, it was raised as a preliminary objection at the Tribunal hearing and rejected.
I therefore dismiss this ground.
3: Ground 3 - Unreasonableness under the Wednesbury Principles
The Wednesbury unreasonableness principle states that an authority or tribunal must act as any reasonable person would act and must not be so absurd in its action such that no reasonable person would act in that way.
On perusal of the Tribunal's decision on verdict, I find that the Ttribunal did carefully consider all the evidence before it. In fact, I am informed the applicant exercised his right not to give evidence hence not be subjected to cross-examination, so he cannot now come to court and say the Tribunal was unreasonable. The Tribunal did carefully weigh all the evidence before it, aspects of which I have already covered.
This ground has no merit and is dismissed.
4: Ground 4 – Severity and Penalty
The applicant urges me to consider that the Tribunal did not consider all mitigating factors including the fact that the plaintiff had an unblemished record in the public service of 26 years. The applicant also asked that in light of my findings, that this court consider an alternative penalty as provided under s 2 of the Leadership Code (Alternative Penalties) Act.
On perusing the Tribunal's decision on verdict, I find that it did carefully consider all materials put before it. I refer to the following:
i) Tribunal re brother's appointment – "His action was a step in a deliberate course of conduct to engineer his brother into a public office" (pg 6 re Decision on Verdict)
ii) Tribunal re brother's appointment – "Rather than obtaining the advice that he had himself sought from the Ombudsman Commission, he set out on a course of further deception instead." (pg 6 re Decision on Verdict)
iii) Tribunal re alternative penalty – "...satisfied that misconduct shown is of such serious culpability that only a recommendation of dismissal is appropriate."(pg 6 re Decision on Verdict)
Pages 6, 7, 8 and 9 of the first respondent's Decision on Verdict and pg 260 of the Transcript of Proceedings are evident of the manner in which the decision was reached. I quote; "...thus when the leader's conduct is taken step by step or in the whole, it shows a deliberate flouting of the appointment procedures and leadership duties. The only recommendation of penalties must be for dismissal."
Consideration of argument under s 155(4) of the Constitution to vary penalty is therefore not relevant and will not be considered.
I dismiss this ground.
5: Conclusion
In the circumstances, as all grounds for relief are dismissed, I accordingly refuse the reliefs sought in the originating summons and with additional orders that the applicant pay all respondents' costs.
Lawyer for the applicant/plaintiff: Jerewai Lawyers.
Lawyer for the
first and third respondent: Solicitor-General.
Lawyer for the second
respondent: Mr. D. Cannings.
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