In the matter of an application for Judicial Review pursuant to Order 16 of the National Court Rules; Alois Kingsly Golu v The National Executive Council and Sam Koim and Timothy Gitua and Sylvester Kalaut and Thomas Kulunga in his capacity as the Acting Police Commissioner and The Independent State of Papua New Guinea (2011) N4425

• Jurisdiction: Papua New Guinea
• Judge: Gavara—Nanu J
• Judgment Date: 21 October 2011
• Docket Number: OS No. 770 Of 2011
• Court: National Court
• Judgement Number: N4425

Full Title: OS No. 770 Of 2011; In the matter of an application for Judicial Review pursuant to Order 16 of the National Court Rules; Alois Kingsly Golu v The National Executive Council and Sam Koim and Timothy Gitua and Sylvester Kalaut and Thomas Kulunga in his capacity as the Acting Police Commissioner and The Independent State of Papua New Guinea (2011) N4425

National Court: Gavara—Nanu J

Judgment Delivered: 21 October 2011

N4425

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 770 OF 2011

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW

PURSUANT TO ORDER 16 OF THE NATIONAL COURT RULES

BETWEEN

ALOIS KINGSLY GOLU

Plaintiff

AND

THE NATIONAL EXECUTIVE COUNCIL

First Defendant

AND

SAM KOIM

Second Defendant

AND

TIMOTHY GITUA

Third Defendant

AND

SYLVESTER KALAUT

Fourth Defendant

AND

THOMAS KULUNGA in his capacity as the Acting Police Commissioner

Fifth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Sixth Defendant

Waigani: Gavara – Nanu J

2011: 18th & 21st October

JUDICIAL REVIEW – Application for leave – Application for leave to apply for judicial review of a decision made by the National Executive Council to appoint an Investigation Team to investigate into how 2009 to 2011 Development Budgets were appropriated – Such decision being made following allegations of corruption within Government Departments including the Department of National Planning & Monitoring and Government Agencies.

JUDICIAL REVIEW – Powers of the National Executive Council regarding control and management of public funds – Constitution ss. 142 (2), 146 (2), 148 (1) and149 – Public Finances (Management Act), 1995, s.3.

JUDICIAL REVIEW – Application for leave to apply for judicial review – Purpose of application for leave – Grounds for the application and the relief sought as pleaded in the Statement in Support – Whether the grounds and the relief sought relate to the decision, the subject of application.

Cases cited:

Papua New Guinea Cases

Burns Philip (PNG) Ltd v. The Independent State of Papua New Guinea (1989) N769

Isaac Lupari v. Sir Michael Somare (2008) N3476

Peter Ipatas v. Sir Mekere Morauta (2001) N2048

Robmos Limited v. Frederick M. Punangi N337

S.C.R No.i of 1982; Re Bouraga [1982] PNGLR 178

Southern Highlands Provincial Government v. The State & Ors [1993] PNGLR 401

The State v. Philip Kapal N417

Overseas cases:

Inland Revenue Commissioners v. National Federation of Self-Employed and Small Business Ltd [1982] AC 617 at 644

Counsel:

W. Donald, for the plaintiff/applicant

M.Murray & S. Pannaphen, for the defendants/ respondents

21 October, 2011

1. GAVARA-NANU J: This is an application by the plaintiff seeking leave to apply for judicial review of a decision made by the first defendant (NEC) on 12 August, 2011. The application is made pursuant to Order 16 r 3 of the National Court Rules (NCR) and the Originating Summons (OS) filed on 3 October, 2011.

2. The decision of the first defendant involved appointment of an investigation team with broad Terms of Reference to investigate into allegations of corruption within the Department of National Planning and Monitoring and other Government Departments and Agencies. The first defendant also in its decision tasked the investigation team to investigate into how 2009 to 2011 Development Budget was appropriated, coupled with this was to investigate into the appropriation of K125 million for Kokopo Community Projects and K10 million which were outside of the Development Budget.

3. The Minutes of the decision is reproduced hereunder for ease of reference:

PAPUA NEW GUINEA

____________

NATIONAL EXECUTIVE COUNCIL

Decision No: NG 03/2011 Special Meeting No: NG 02/2011

Subject: INVESTIGATION INTO THE ALLEGATIONS OF CORRUPTION AT THE NATIONAL PLANNING DEPARTMENT

On 11th August 2011, Council;

1. Noted the content of Policy Submission No. NG 04/2011,

2. Approved the establishment of the Investigation into allegations of corruption at the Department of National Planning & Monitoring which would also extend to other Departments or Sate agencies insofar as the Development Budget from 2009 to 2011 was appropriated, and among others the K125 million for the Kokopo Community Projects and the K10 million which are outside of the Development Budget;

3. Appointed the named respective State agencies as listed in the submission which is attached as annexure “A”, to furnish an officer(s) as identified by the Minister for National Planning and the Attorney General;

4. Directed the Department of Treasury through the Minister for Treasury & Finance to allocate the sum of K6 million to be immediately made available for the investigation to commence;

5. Approved the draft Terms of Reference as stated in the submission for the Investigation, attached as (Annex “B”) amended (sic.);

6. Approved the Team Members to be paid special contract allowances during the term of their engagement;

7. Directed Department of Personnel Management through the Minister for Public Service to immediately organize short term special contracts of (sic.)Team Members for immediate execution;

8. Directed the Department of National Planning through the Minister for National Planning, in consultation with the Department of Personnel Management to immediately suspend public servants who are implicated in the Investigation; and

9. Directed the Attorney General and Minister for Justice through the Ministerial Committee on Law and Justice Sector to consult with the Chief Justice to appoint a Special Judge to hear the above cases as a matter of priority.

( Signed)___________

PETER O’NEILL Chairman

__________(Signed)_________

MANLY UA Secretary, NEC

Date: 12th August 2011-10-19

Distribution: PRIME MINISTER /DEPUTY PRIME MINISTER /ATTORNEY GENERAL & MINISTER FOR JUSTICE / MINISTER FOR NATIONAL PLANNING & MONITORING / NATIONAL PLANNING/ PERSONNEL MANAGEMENT / PMNEC / TREASURY/FINANCE.

4. The instrument of appointment for the members of the investigation team is also reproduced hereunder for ease of reference:

INVESTIGATION TEAM

The Investigation Team comprise of the following persons/authorities:

1. Chairman – Mr. Sam Koim, a Principal Legal Officer – Office of the Solicitor General, Department of Justice;

2. Deputy Chairman – Superintendent Sylvester Kalaut, PPC of East New Britai;

3. Chief Inspector Timothy Gitua, Director of Frauds and Anticorruption Squad and six Investigators – 1 x Forensic Expert, 1 x Police Prosecutor, 2 x Financial Intelligence Unit Officers and 6 Mobile Squards;

4. A lawyer with the POCA Division at the Office of the Public Prosecutor;

5. An Officer with the Department of Treasury;

6. An Accountant from the Office of the Auditor General;

7. An Officer from Tax Compliance Division of the Internal Revenue Commission;

8. An Officer of the Department of Provincial and Local-Level Government Affairs;

9. A Media Officer.

5. The Terms of Reference for the investigation team is also reproduced hereunder:

TERMS OF REFERENCE

The following are the Terms of Reference (TOR) for the Team:

1. Inquire into and ascertain:

i) That Public Funds (Development Budget Component) administered by the Department of National Planning & Monitoring of the 2009, 2010 & 2011 Budgets were appropriated in compliance with their respective Appropriation Acts:

ii) That those who applied for and received the funds were in accordance with the Appropriation Acts;

iii) That the project submissions were consistent with the Appropriation Act and passed the screening criteria used by the Department of National Planning and Monitoring without undue influence;

iv) That the proponents of the project did not place themselves in a conflict of interest position;

v) If those funds were diverted, who orchestrated the diversion and who benefited from such diversion;

vi) If the funds were paid outside of the Appropriation Act, who applied for and benefited from the funds;

vii) Whether the funds were sufficiently used for the purpose to which it was applied and granted;

viii) Whether certain laws including the Public Finance (Management) Act and the Criminal Code Act, etc, were breached;

ix) Who orchestrated the breach of those laws;

x) Whether the person(s) implicated were public servants and if so, whether their conduct also amounted to conflict of interests.

2. Prosecute the persons criminally implicated during the inquiry under the laws of Papua New Guinea including but not limited to the Criminal Code Act and Proceeds of Crime Act 2005;

3. Take all steps the Proceeds of Crimes Act 2005 and the Mutual Assistance in Criminal Matters Act 2005 to recoup all proceeds of all funds found to have been diverted and misappropriated , such proceeds as are defined by Section 10 Proceeds of Crime Act;

4. Refer the person(s) to the Ombudsman Commission if he /she is a leader covered by the Leadership Code;

5. Recommend for immediate termination of employment if he or she is a public servant who is implicated in the investigations;

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