Application Pursuant to s155(4) by John Mua Nilkare before a tribunal appointed under the Organic Law on the Duties and Responsibilities of Leadership comprising His Honour Mr Justice Robert K Woods — Chairman, His Worship Mr Seri Seneka — Member, His Worship Mr Richard Koronai — Member

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Kapi DCJ, Los J
• Judgment Date: 15 April 1997
• Citation: (1997) SC536
• Court: Supreme Court
• Year: 1997
• Judgement Number: SC536

Supreme Court: Amet CJ, Kapi DCJ, Los J

Judgment Delivered: 15 April 1997

SC 536

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCA NO. 46 OF 1996

Application pursuant to Section 155(4)

Waigani : Amet CJ, Kapi DCJ & Los J

1997 : 24, 25 February, 10 & 15 April

APPLICATION

Application by John Mua Nilkare before a tribunal appointed under the Organic Law on the Duties and Responsibilities of Leadership comprising:

His Honour Mr Justice Robert K Woods - Chairman

His Worship Mr Seri Seneka - Member

His Worship Mr Richard Koronai - Member

Mr P Lowing, for the applicant.

Mrs P Mogish, for the State.

Mr D Canning, for the Ombudsman Commission.

10 April 1997

AMET CJ: The Applicant John Mua Nilkare was a Member of the National Parliament of Papua New Guinea, representing the Gumine Open constituency in the Simbu Province, in the 1992-1997 Parliament. He was found guilty of 25 charges of misconduct in office under the Leadership Code by the Leadership Tribunal and was dismissed from office as a Member of Parliament. He applied for and was granted leave by the National Court to apply for judicial review of the Tribunal's decision. Whilst the application for review was pending in the National Court, he applied to the Supreme Court for it to assume jurisdiction and remove the application into this Court pursuant to Constitution s 155(4). That application was granted and that is how this application for review has come to this Court from the decision of the Leadership Tribunal, in the first instance.

Section 155(4) of the Constitution provides that:

"Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case."

Because the initial application before the National Court, for which leave was granted, was for judicial review, the application proceeded before this Court on the same basis as the standard judicial review before the National Court. The grounds advanced by the applicant were thus confined to procedural irregularities and unreasonableness in the decisions arrived at.

I consider however that Section 155(4) as the supreme inherent supervisory jurisdiction of this Court is not limited to orders in the nature of prerogative writs only, but enables this Court, "to make in such circumstances as seem to it proper, such other orders as are necessary to do justice in the circumstances of a particular case."

The twenty-five counts for which he was found guilty could be conveniently divided into six categories for the purposes of this review:

1 - Minor Transport Programme (MTP) — Counts 1 to 6

2 - Rural Transport Assistance Programme (RTAP) — Counts 7 to 15

3 - Local Government Tied Grants (LGTG) — Counts 16 to 21

4 - Rural Agriculture Development Programme (RADP) — Counts 25 to 27

5 - Indebtedness — Count 29

6 - Mr Arabgali — Count 31

It will be noted by these categorisations that the largest number of charges, except two, are related to the administration and expenditure of Electoral Developmental Funds under four main programmes. The principle policy rationale for the introduction of these different electoral developmental funds, it seems to me, is to enable and facilitate expeditious expenditure on minor developmental programmes in the electorates by the incumbent member of Parliament by overcoming what his perceived to be bureaucratic delay in the delivery of goods and services to the vast majority of grass-roots constituents. I consider therefore that in the consideration of whether or not a leader has infringed any provisions of any guidelines, regulations or rules in relation to the administration and expenditure of such developmental funds, one ought always to bear in mind the primary purposes for the developmental funds. Given this principle policy basis for the appropriation of these funds for implementation and expenditure by the members of Parliament directly in their constituencies, the consideration of whether or not leadership code provisions have been breached in the management and expenditure of these funds in the implementation of projects and services related to the purposes of the programmes, cannot be one of strict liability in a purely technical and legal sense.

On the basis of this policy rationale, it is my view that the liability for breach of the Leadership Code and thus misconduct in office is not to be limited to strict technical non compliance with the letter of rules, guidelines and regulations but rather whether in the final analysis the primary purposes for which the funds were allocated were fulfilled or realised substantially. Viewed from this perspective, the issues would be, in my view, not as much as whether the specific regulatory provisions of administrative guidelines have been strictly complied with but whether the general purpose for which the funds where allocated were achieved or implemented. And ultimately whether the policy basis for which this developmental funds were appropriated by Parliament are substantially fulfilled, that is to say whether the general purposes of developmental programs or projects for the benefit of the public constituents was achieved or developed by the expenditure of the funds.

In the majority of the charges relating to the developmental programme being the MTP, RTAP, LGTG and RADP, it is not in dispute that the funds allocated to the applicant leader were expended on substantially programmed related purposes. It is not in dispute that none of the funds under those programmes were appropriated and expended by the Applicant for his personal benefit or purposes. The evidence quite clearly reveals that the purposes to which the funds were expended were public institutional purposes for the benefit of the member's constituency as well as several other constituencies for the general benefit of the public.

The applicant leader was found guilty of misconduct in office under two principle provisions of the Constitution and the Organic Law on Duties and Responsibilities of Leadership (the Organic Law). The principle provision of the Constitution pursuant to which the applicant was found guilty of misconduct is Section 27, the relevant provisions of which are enumerated hereunder.

27. Responsibilities of Office

(I) A person to whom this Division applies has a duty to conduct himself in such way, both in his public or official life and his private life, and in his associations with other persons, as not -

(a) to place himself in a position in which he has or could have a conflict of interests 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 government in Papua New Guinea.

(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 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.

(5) A person to whom this Division applies who -

(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 was also found guilty of misconduct in office pursuant to Organic Law Section 13(a) which provides as follows:

13. Misappropriation of funds of Papua New Guinea.

A person to whom this Law applies who -

(a) intentionally applies any money forming part of any fund under the control of Papua New Guinea to any purpose to which it cannot be lawfully be applied; or

I turn now to deal with the specific counts under each category.

1 - Minor Transport Programme (MTP) — Counts 1 to 6

These counts relate to the request for and expenditure of K20,000.00 from the MTP Funds. The applicant was a member of the new government elected into office following the July 1992 General Elections, and he was caretaker Minister for Transport as well as other ministries. He was advised that out of the budgeted appropriation for this programme in 1992 only K600,000.00 was left to be allocated by the new government, the out-going government having allocated and expended most of the funds out of this programme. There was some evidence to suggest that this amount of K600,000.00 had been allocated to members of Parliament in the previous Parliament, but no specific evidence as to which members and in particular as to whether or not those members had been re-elected.

The applicant instructed the Departmental Secretary to...