and In the Matter of the Constitutional Office–Holders Rights Tribunal Appointed Under s27(7) of the Organic Law On Duties and Responsibilities of Leadership; and In the Matter of Raho Hitolo MBE, a Member of the Ombudsman Commission (2004) N2745

• Jurisdiction: Papua New Guinea
• Judge: Hon Justice Kandakasi—Chairman, Hon Justice Davani—Member, Hon Justice Lenalia—Member (Constitutional Office–Holders Rights Tribunal at Waigani Papua New Guinea)
• Judgment Date: 03 December 2004
• Citation: (2004) N2745
• Docket Number: In the Matter of Referral By the Public Prosecutor Pursuant to s27(2) of the Organic Law On Duties and Responsibilities of Leadership
• Year: 2004
• Court: National Court
• Judgement Number: N2745

Full Title: In the Matter of Referral By the Public Prosecutor Pursuant to s27(2) of the Organic Law On Duties and Responsibilities of Leadership; and In the Matter of the Constitutional Office–Holders Rights Tribunal Appointed Under s27(7) of the Organic Law On Duties and Responsibilities of Leadership; and In the Matter of Raho Hitolo MBE, a Member of the Ombudsman Commission (2004) N2745

National Court: Hon Justice Kandakasi—Chairman, Hon Justice Davani—Member, Hon Justice Lenalia—Member (Constitutional Office–Holders Rights Tribunal at Waigani Papua New Guinea)

Judgment Delivered: 3 December 2004

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

2004: 3rd December

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.

Counsel:

J. Pambel for the Public Prosecutor, the referring authority.

L. Henao and K. Hidu for Raho Hitolo, referred Constitutional Office Holder.

03rd December 2004

BY THE TRIBUNAL: On 17th 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 7th September 2004, the Chief Justice appointed this tribunal under s. 27(7) (c)

The instrument reads as subparagraph (e) which the tribunal noted was a typographical error.

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 14th December 1998 for a period of six (6) years commencing 6th January 1998, pursuant to s.217(2) of the Constitution.

On 25th 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 1st 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 4th 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 12th October 2004.

When the tribunal reconvened on 12th 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 19th October 2004. That caused the tribunal to adjourn to 19th October 2004.

On 9th November 2004, the National Court decided to dismiss the leader’s application. Following that decision, the tribunal set 16th 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.”

(Emphasis supplied)

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...