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In re Raho Hitolo [2004] PNGLR 48; [2004] PNGLR 645 (3 December 2004)

NATIONAL COURT OF JUSTICE

THE CONSTITUTIONAL OFFICE-HOLDERS RIGHTS TRIBUNAL AT WAIGANI PAPUA NEW GUINEA
IN THE MATTER OF REFERRAL BY THE PUBLIC PROSECUTOR PURUSANT TO SECTION 27(2) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP; AND
IN THE MATTER OF THE CONSTITUTIONAL OFFICE-HOLDERS RIGHTS TRIBUNAL APPOINTED UNDER SECTION 27(7) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBITLITIES OF LEADERSHIP; AND
IN THE MATTER OF RAHO HITOLO MBE, A MEMBER OF THE OMBUDSMAN COMMISSION.

WAIGANI: HON. JUSTICE KANDAKASI – CHAIRMAN; HON. JUSTICE DAVANI – MEMBER; HON. JUSTICE LENALIA – MEMBER

03 December 2004

PRACTICE & PROCEDURE – Leadership Code – Alleged misconduct in office - Constitutional Office holder – Referral by Ombudsman Commission to Public Prosecutor – Powers of Public Prosecutor to refer to appropriate tribunal – Meaning of "appropriate tribunal"– Tribunal established under s.4 of Organic Law on Guarantee of Rights and Independence of Constitutional Office-holders – Only relevant appointing authority has authority to request Chief Justice to appoint tribunal – Organic Law on Duties and Responsibilities of Leadership s.27(1)(2) and (7) – Organic Law on Guarantee of Rights and Independence of Constitutional Office-holders ss. 4 and 5.

LEADERSHIP TRIBUNALS – Constitutional Office-holders Rights Tribunal – Jurisdiction of –Tribunal properly assumes jurisdiction once appointed on the request of the relevant appointing authority – A tribunal appointed at the request of the Public Prosecutor does not properly assume jurisdiction – Organic Law on Duties and Responsibilities of Leadership s.27(1)(2) and (7) – Organic Law on Guarantee of Rights and Independence of Constitutional Office-holders ss. 4 and 5.

Facts

The leader, constitutional office holder was alleged to have been guilty of misconduct in office and was referred to the Public Prosecutor by the Ombudsman Commission. The Ombudsman Commission, referred the leader to the Public Prosecutor under s.29 (1) of the Constitution and ss.17(d), 20(4), and 27(1) of the Organic Law on Duties and Responsibilities of Leadership (the Organic Law on Leadership) after having formed the view that the leader was guilty of misconduct in office. The Public Prosecutor considered the referral and formed the view that the matter should proceed pursuant to ss.29(1) and 177(1)(b) of the Constitution and s.27(2) of the Organic Law on Leadership. Based on that, the Public Prosecutor referred the matter to the Chief Justice who appointed the tribunal under s.27(7) (c) of Organic Law on Duties and Responsibilities of Leadership (Leadership Code) to hear, inquire into and determine allegations of misconduct in office by the leader.

The issues were whether the tribunal should disband itself on the grounds that its appointment was not proper, that it was not properly constituted, and that it did not have jurisdiction.

Held

1. The leader was a Constitutional Office-holder pursuant to s.221(d) of the Constitution and is subject to investigations for misconduct in office both under the Leadership Code and the Organic Law on Constitutional Office-holders and therefore subject to Division III.2 (Leadership Code) of the Constitution, pursuant to s.26 (1)(e) of the Constitution implemented under the Organic Law on Duties and Responsibilities of Leadership.

2. Under s 4 of the Organic Law on Constitutional Office-holders, the appropriate tribunal is the Constitutional Office-holders Rights Tribunal.

3. The power to request the appointment of an appropriate tribunal is not exclusively in the Public Prosecutor in every case. Rather, his power to refer or request the appointment of an appropriate tribunal is instead restricted to leaders covered by s. 27(7)(d) and (e) of the Leadership Code.

4. The Public Prosecutor usurped the powers and the functions of the appointing authority, being the Ombudsman Appointments Committee when he requested the Chief Justice to appoint this Tribunal.

5. The appointment of the tribunal was not in accordance with any constitutional authority or foundation and was in breach of the provisions of s.5 of the Organic Law on Constitutional Office-holders and therefore was without jurisdiction.

Papua New Guinea cases cited

No cases cited

Counsel

J. Pambel, for the Public Prosecutor, the referring authority.
L. Henao and K. Hidu, for Raho Hitolo, referred Constitutional Office Holder.

3 December 2004

By the tribunal. On 17 November 2004, this tribunal endorsed orders by consent of the parties effectively ruling amongst others, that it did not have the necessary jurisdiction to hear, inquire into and determine allegations of misconduct in office by Raho Hitolo (the leader). Given the importance of the issue of jurisdiction, which has arisen for the first time at least, as the parties are concerned, we consider it appropriate to publish the basis on which the parties agreed and the tribunal decided to endorse the orders by consent.

In so far as is relevant, the background and facts are these. By letter and instrument dated 7 September 2004, the Chief Justice appointed this tribunal under s.27(7) (c)1 of Organic Law on Duties and Responsibilities of Leadership (Leadership Code) to hear, inquire into and determine allegations of misconduct in office by the leader. The leader is one of the three Ombudsman Commissioners appointed by the Head of State acting with and in accordance with the advice of the Ombudsman Appointments Committee (appointing authority). Ombudsman Appointments Committee appointed him on 14 December 1998 for a period of six (6) years commencing 6 January 1998, pursuant to s.217(2) of the Constitution.

On 25 June 2004, the Ombudsman Commission, referred the leader to the Public Prosecutor under s.29 (1) of the Constitution and ss. 17(d), 20(4), and 27(1) of the Organic Law on Duties and Responsibilities of Leadership (the Organic Law on Leadership) after having formed the view that the leader was guilty of misconduct in office. The Public Prosecutor considered the referral and formed the view that the matter should proceed pursuant to ss. 29(1) and 177(1)(b) of the Constitution and s.27(2) of the Organic Law on Leadership. Based on that, he referred the matter to the Chief Justice for the appointment of an appropriate tribunal to hear, inquire into and determine the allegations against the leader. That resulted in the appointment of this tribunal.

The tribunal formally commenced its function on 1 October 2004, when it mentioned the matter and conducted a directions hearing. At that time, it issued a number of directions aimed at identifying the real issues for hearing and determination, the number of witnesses required and an estimate of the duration of the hearing and or inquiry.

On 4 October 2004, the matter returned to the tribunal. At that time, the Public Prosecutor formally presented the charges against the leader. The leader requested an adjournment to enable him to study the charges and the material supporting the charges. With the Public Prosecutor's consent, the tribunal granted the adjournment up to 12 October 2004.

When the tribunal reconvened on 12 October 2004, the leader informed the tribunal through his counsel, that he successfully applied for and obtained an order staying the tribunal from proceeding with the hearing and inquiry. That was pending a determination of an application by him for leave for judicial review which the National Court heard and had reserved its ruling to 19 October 2004. That caused the tribunal to adjourn to 19 October 2004.

On 9 November 2004, the National Court decided to dismiss the leader's application. Following that decision, the tribunal set 16 November 2004 as the date to resume its hearing and inquiry and reconvened on that date. At that time, the leader informed the tribunal that, he obtained an interim stay order from the Supreme Court pending his substantive application for a stay of the tribunal proceedings until the determination of an appeal he had lodged against the decision of the National Court. Nevertheless, when the tribunal reconvened, the leader informed it that he had abandoned his Supreme Court appeal and decided instead to ask the tribunal to disband itself because, in his submission, the appointment of the tribunal was not proper, not properly constituted and that it did not have jurisdiction.

The parties agreed that the leader was a Constitutional Office-holder pursuant to s.221(d) of the Constitution. As such, he is subject to Division III.2 (Leadership Code) of the Constitution, pursuant to s.26 (1)(e) of the Constitution. The Organic Law on Duties and Responsibilities of Leadership (the "Organic Law on Leadership") provides for the implementation of this part of the Constitution. Section 218 (d) of the Constitution vests the Ombudsman Commission with the powers to supervise and enforce the Leadership Code.

Additionally, s.223 of the Constitution deals with Constitutional Office-holders. That provision in relevant parts reads:

"(1) Subject to this Constitution, Organic Laws shall make provision for and in respect of the qualifications, appointment and terms and conditions of employment of constitutional office-holders.

(2) In particular, Organic Laws shall make provision guaranteeing the rights and independence of constitutional office-holders by, amongst other things—

(a) specifying the grounds on which, and the procedures by which, they may be dismissed or removed from office, but only by, or in accordance with the recommendation of, an independent and impartial tribunal; and

(b) providing that at the end of their periods of office they are entitled, unless they have been dismissed from office, to suitable further employment by a governmental body, or to adequate and suitable pensions or other retirement benefits, or both, subject to such reasonable requirements and conditions (if any) as are laid down by an Organic Law.

(3) A constitutional office-holder may not be suspended, dismissed or removed from office during his term of office except in accordance with a Constitutional Law."

The Organic Law, which provides for the implementation of s.223 of the Constitution, is the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders ("Organic Law on Constitutional Office-holders"). Section 7 of that Organic Law provides for the grounds for removal or dismissal of a Constitutional Office-holder from office. It also provides for the procedures by which that could be done.

There was also no dispute between the parties that a Constitutional Office-holder is subject to investigations for misconduct in office both under the Leadership Code and the Organic Law on Constitutional Office-holders. Under Part III of the Leadership Code, the Ombudsman Commission carries out the necessary investigation under the Leadership Code. Part V of the Leadership Code provides for enforcement. Section 27 is the provision that provides the scheme to deal with leaders, the Ombudsman Commission finds guilty of misconduct in office. That section in relevant parts provides:

"(1) If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion—

(a) to the Public Prosecutor; or

(b) to the appropriate tribunal referred to in Subsection (7).

(2) If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7).

...

(7) For the purposes of this section—

"the appropriate authority" means, in relation to a person to whom this Law applies, the authority to whom, in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him should be made;

"the appropriate tribunal" means—

(a) in the case of alleged misconduct in office by the Chief Justice—the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution; or

(b) in the case of alleged misconduct in office by a Judge, a Law Officer or the Chief Magistrate—the tribunal referred to in Section 180 (removal from office of other Judges, etc.) of the Constitution; or

(c) in the case of alleged misconduct in office by any other constitutional office-holder—the tribunal established by Section 3 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders; or

(d) in the case of alleged misconduct in office by the Prime Minister—a tribunal appointed by the Chief Justice, consisting of a Chairman and two other members, all of whom must be—

(i) Judges or former Judges of the National Court; or

(ii) former Judges of the pre-Independence Supreme Court of Papua New Guinea; or

(iii) Judges or former Judges of an equivalent court of a country that has a legal system similar to that of Papua New Guinea;

(e) in any other case—a tribunal consisting of a Judge (who shall be the Chairman) and two senior magistrates appointed by the Chief Justice."

Again, the parties agreed that once the Ombudsman Commission arrives at the view that a person subject to the Leadership Code, which includes a constitutional office-holder, is guilty of misconduct in office, it has authority to refer him together with a statement of its reasons for prosecution to either of the two authorities. The first is the Public Prosecutor, while the second is the "appropriate tribunal" referred to in subsection (7) of s.27.

Where the Ombudsman decides to refer to the Public Prosecutor, as in this case, the Public Prosecutor then considers the matter and comes to a decision whether or not to proceed. This, the leader argues, and we accept with the agreement of the Public Prosecutor that it calls for an independent exercise of discretion whether or not to proceed after considering the merits ad demerits of the case. If at the end of that process, the Public Prosecutor decides that "the matter should be proceeded with" he is obliged to refer the matter to the "appropriate tribunal" referred to in subsection (7) of s.27.

The leader submits with the agreement of the Public Prosecutor and we accept that, subsection (7) does a number of things. First, it prescribes different tribunals for different categories of leaders. Secondly, it identifies the authorities who should request the appointment of the relevant tribunals. Thirdly, it identifies the authorities who should appoint the relevant tribunal. Fourthly, it identifies who the relevant tribunal should report to on the outcome of its investigations. Finally, it provides as to what the authorities should do after receiving the reports and the effect of the recommendations of the relevant tribunal as against the leader. This is clear from the words employed in the provision.

The effect of the scheme under subsection (7) therefore is clearly this. When one refers to the relevant provisions of the Constitution and organic laws mentioned above, it is clear that there are different tribunals for the different categories of leaders listed in this provision. It provides for different authorities to appoint and or request the appointment of the appropriate tribunals. That starts with the Chief Justice. The Head of State acting with and in accordance with the advice of the National Executive Council ("NEC") pursuant to s.179 of the Constitution appoints the tribunal.

The next category of leaders is judges, the Attorney General, the Public Prosecutor and the Public Solicitor (s.156) and the Chief Magistrate. The appropriate authority to appoint the appropriate tribunal is the Judicial and Legal Services Commission ("JLSC") under s.180(1) of the Constitution.

Other Constitutional Office-holders constitute the next category of leaders which is the category, the subject of this tribunal. Under s.4 of the Organic Law on Constitutional Office-holders, the appropriate tribunal is the Constitutional Office-holders Rights Tribunal. Section 5 of that organic law provides in relevant parts:

"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."

Therefore, it is clear that if the appointing authority on being satisfied that the question of the removal from office of a constitutional office-holder should be investigated, it requests the Chief Justice, and the Chief Justice appoints the appropriate tribunal.

The scheme continues with the next category of leaders being the Prime Minister. There is no reference to any other constitutional or organic law provision for the appointment of the relevant tribunal to deal with the matter. Instead, subsection (7) of s.27 clearly provides for the Chief Justice to appoint the relevant tribunal consisting of three current or former judges of the National and Supreme Courts. This is done on referral from the Public Prosecutor.

The final category of leaders is all other leaders not covered under paragraphs (a), (b), (c) and (d) of subsection (7) who are subject to the Leadership Code. As in the case of the Prime Minister, subsection (7)(e) does not refer to any other provisions of the Constitution or an Organic law. It instead, clearly states that, the Chief Justice appoints the appropriate tribunal consisting of one Judge of the National Court and two senior magistrates. The appointment is on the referral of the Public Prosecutor.

What appears clearly from a close examination of the scheme is this. The powers and the functions to investigate and determine a prima facie case against a leader who is subject to the Leadership Code is in the Ombudsman Commission or any other authority it authorizes under s.19 of the Leadership Code. The various appointing authorities such as the NEC, JLSC and Ombudsman Appointments Committee under their respective enabling Constitutional and Organic Law provision also have similar investigative powers and the authority to appoint or request the appointment of an appropriate tribunal. The NEC (through the Head of State) and JLSC have the powers to appoint the appropriate tribunal without requesting the Chief Justice to appoint it, in the case of the Chief Justice, Judges, the Law Officers and the Chief Magistrate.

This is apparent from ss.179(1) and 180(1) of the Constitution, which provide:

"If the National Executive Council is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may—

(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and

(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it."

...

"If the Judicial and Legal Services Commission is satisfied that the question of the removal from office of a Judge (other than the Chief Justice), the Public Prosecutor, the Public Solicitor or the Chief Magistrate should be investigated, it may—

(a) appoint a tribunal under Section 181 (Constitution, etc., of tribunals); and

(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it."

In the case of all other Constitutional Office-holders, the "appropriate appointing authority"has the power to investigate and request the Chief Justice to appoint the appropriate tribunal if it is "satisfied that the question of removal from office ... should be investigated" (s.5(1) Organic Law on Constitutional Officer-holders).

It follows therefore, that the power to request the appointment of an appropriate tribunal is not exclusively in the Public Prosecutor in every case. Rather, his power to refer or request the appointment of an appropriate tribunal is instead restricted to leaders covered by s. 27(7)(d) and (e) of the Leadership Code. In these categories of leadership, the Chief Justice may appoint the appropriate tribunal. He too does not have the exclusive power to appoint an appropriate tribunal in every case, but limited to the leaders covered by s.27(7) (c), (d) and (e). Nevertheless, his power to appoint an appropriate tribunal is as provided for in s.5 of the Organic Law on Constitutional Office-holders, on the request of the relevant appointing authority.

Proceeding on the above basis and following the scheme of things as noted above, the leader submitted that whilst the investigations run parallel to each other, the power to request the appointment or the appointment of an appropriate tribunal goes back to the appropriate appointing authority. This, the leader submitted is a necessary further checking and balancing process given the importance of the offices of the Chief Justice, Judges, the Law Officers and other constitutional office-holders occupy.

The leader acknowledged that it was open to the Ombudsman Commission, to refer a matter directly to the appropriate tribunal pursuant to s.27(1) (b) of Leadership Code. However, in the leader's submission, the process as noted above equally applies even in that case. The Public Prosecutor accepted these submissions too.

Applying the above reasoning to his case, the leader submitted, that the Public Prosecutor usurped the powers and the functions of the appointing authority, being the Ombudsman Appointments Committee when he requested the Chief Justice to appoint this Tribunal. The leader went on to submit that the appointment of this tribunal was not in accordance with any constitutional authority or foundation and was in breach of the provisions of s.5 of the Organic Law on Constitutional Office-holders. He therefore urged the tribunal to rule that it was without jurisdiction and for some other consequential orders.

The Public Prosecutor's initial reaction to the leaders submission centered on his constitutional power to prosecute. He submitted that he had the power to make the request and sought to rely on s.27 (2) (7) (c) of the Leadership Code. In so doing, he argued that s.27(2) authorized him to refer and he did refer the matter to the appropriate tribunal being the Constitutional Office-holders Rights Tribunal, if he considered it appropriate to proceed. He relied on the precedents set in the case of the appointment of the Constitutional Office-holders Rights Tribunal that dealt with Mark Wani the then Auditor General and Ruben T Kaiulo, the former Electoral Commissioner, without referring to any legislative basis for that precedent, or a decision supporting that argument. Further, he submitted, that a referral of the matter to the appropriate appointing authority would unnecessarily delay the process, thereby ignoring the need for a working check and balance system given the importance of the position of the different constitutional office-holders.

The Public Prosecutor was not able to assist in relation to the question of how is the tribunal appointed, once he makes such a referral having regard to the scheme of things under s.27(7) of the Leadership Code. This was particularly so in view of the express provisions of s.5 of the Organic Law on Constitutional Office-holders and a lack of specific authorization as in the case of any other leaders including the Prime Minister under s.27(7)(d) and (e) of the Leadership Code. Realizing his difficulties the Public Prosecutor took an adjournment to the next day at 10:00am. That was to enable him to conduct further research, consider the submissions made by the leader and come to a decision whether to maintain his submissions or concede to the submissions of the leader.

When the tribunal resumed the next day, the Public Prosecutor handed up a written extract of his arguments of the previous day. He then informed the Court that he carefully considered the leader's submissions and reconsidered his own and concluded that the leader's submissions were correct and was therefore agreeing to the orders the leader was seeking. We considered that the submissions of the leader as accepted by the Public Prosecutor were sound and we accepted them. Accordingly, we endorsed orders in the following terms with the consent of the parties:

1. The Tribunal does not have the necessary jurisdiction to deal with the matter.

2. Consequential on the first order, the Public Prosecutor withdraws the charges against the leader.

3. The Public Prosecutor shall be at liberty to take the matter up through the appropriate appointing authority, pursuant to section 5 of the Organic Law on Rights and Independence of Constitutional Office-holders.

4. Pursuant to section 9 of the Organic Law on Rights of Constitutional Office-holders, the suspension of the leader is now lifted.

Lawyers for the Leader: Henaos Lawyers.
Lawyers for Referrer: Public Prosecutor.