John Mua Nilkare v Ombudsman Commission

• Jurisdiction: Papua New Guinea
• Judge: Sheehan J
• Judgment Date: 04 August 1995
• Citation: (1995) N1344
• Court: National Court
• Year: 1995
• Judgement Number: N1344

National Court: Sheehan J

Judgment Delivered: 4 August 1995

N1344

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 216 OF 1995

JOHN MUA NILKARE — Plaintiff

v

OMBUDSMAN COMMISSION — Respondent

Waigani

Sheehan J

17 July 1995

4 August 1995

JUDICIAL REVIEW — Reference of Leader to the Public Prosecutor on allegations of misconduct in breaches of the Leadership code-Challenge to referral for failure to comply with Organic Law and breach of natural justice-allegations of bias

Counsel:

SM Littlemore QC for the Plaintiff

G Toop for the Defendant

4 August 1995

DECISION

SHEEHAN J: The Plaintiff, Mr. John Mua Nilkare is a member of the National Parliament and subject to the Leadership code established by the Constitution.

In January of this year, following an investigation, the Ombudsman Commission referred some thirty one (31) allegations of misconduct in office to the Public Prosecutor for consideration as to whether charges should be laid before a Leadership Tribunal constituted under the Organic Law on the Duties and Responsibilities of Leadership. The Public Prosecutor determined to lay charges and these were in fact prepared for referral and served on the Plaintiff. Charges were in fact laid in April of this year. A Leadership Tribunal was convened to hear these complaints commence the hearing to on June 1995.

However, in late May, the Plaintiff made application this Court to stay the proceedings of the Leadership Tribunal until a challenge to the validity of the Ombudsman Commission's referral on grounds to breaches of statutory and natural justice requirements bias and unabias could be heard.

That application resulted in an order that:

"Leave (be) granted to the Plaintiff to apply for Judicial Review of the decision made by the Respondent (the Ombudsman Commission pursuant to s. 29 (1) of the Constitution and s. 20 (4) and s. 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership, to refer to the Public Prosecutor for prosecution before a Tribunal established under s. 28 (1) (g) of the Constitution and s. 27 (7) of the Organic Law on Leadership "the Tribunal"), thirty one (31) allegations of misconduct in office ["the Referred Allegations"], such allegations being set out in a document titled "Referral Statement of Reasons by the Ombudsman Commission to the Public Prosecutor" and dated 7th January, 1995."

The proceedings of the Tribunal were likewise stayed pending the hearing of this application.

The Plaintiff contends that the Commission's decision to refer him to the Public Prosecutor on allegations of misconduct were invalid on the grounds which are set out in the Statement filed in support of the application for Judicial Review. In summary, it is the Plaintiff's case that before the Commission could come to a determination that prima facie the Plaintiff was guilty of misconduct in office and the Commission was therefore empowered to refer the allegations to the Public Prosecutor, it was obliged to follow the procedures governing its functions set out in the Organic Law.

There was first a requirement of law that it inform the Plaintiff of its intention to undertake an investigation into his conduct in office. This was not done. Secondly, the Commission having undertaken an enquiry was obliged and failed to give him a reasonable opportunity to be heard in relation to all the issues being investigated by the Commission. Thirdly, the Commission failed to furnish the Plaintiff with all the necessary documentation and particulars relating to the allegations of misconduct to unable him to make adequate reply. Fourthly, in making its referral the Commission failed to set out in a full fair and proper manner the Plaintiffs defence or explanation of the allegations against him. The failure to follow these statutory procedures are themselves sufficient to invalidate the referral. They also constitutes a denial of the rules of natural justice and a breach of the Commission's duty to observe such rules. Finally, the Plaintiff contends that the sum of the Commission's failure to oberve the rules of natural justice, its failure to follow the procedures determined under the Leadership Legislation is evidence of real bias in the conduct of its duties.

Accordingly, the Plaintiff seeks declarations that the determination that the Plaintiff is prima facie guilty of misconduct in office is invalid and that it be quashed; that the referrals are likewise invalid and that the referral should be withdrawn. That the Leadership Tribunal should be disbanded and that the Ombudsman Commission be ordered to take no further steps in regards to the allegations wrongfully referred.

EVIDENCE

The events backgrounding these claims are, in brief, that following certain complaints to the Commission dating back to November 1992 concerning the Plaintiffs conduct as a leader, the Commission on or about 11 February determined to investigate those allegations and any others that might arise in the course of its investigations. That decision was not communicated to the Plaintiff.

Enquiries then proceeded throughout remainder of 1993 and early 1994 and resulted in the Commission advising the Plaintiff by letter of 8 June 1994 that he had a right to be heard in respect of certain allegations of misconduct made against him. The correspondence between the Commission and the Plaintiff from that point through to referral of charges to the Public Prosecutor establish the major facts of this enquiry. The Commission's letter commences:

"8 June 1994

Hon John Mua Nikare MP

Member of Guinea

c/- National Parliament

Parliament House

WAIGANI NCD

Dear Sir

YOUR RIGHT TO BE HEARD ON ALLEGED BREACHES OF THE LEADERSHIP CODE AND THE ORGANIC LAE ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

You are hereby advised that in accordance with Section 20 (3) of the Organic Law on the Duties and Responsibilities of Leadership you have a right to be heard in relation to certain allegations of misconduct in office against you.

The allegations are as follows:"

There than follows eleven (11) pages detailing the allegations against him. Each allegation finishing with the statement:

"As a consequence you may have committed misconduct in office. Thus your explanation is required."

The letter than concludes as follows:

"REQUIRED ACTION

You are required to contact the Ombudsman Commission, either personally or in writing, within 21 days after receiving this letter, so that a suitable time can be arranged for you to respond to all of the above allegations and exercise your right to be heard under Section 20 (3) of the Organic Law on the Duties and Responsibilities of Leadership.

Section 20 (3) of the Organis Law on the Duties and Responsibilities of Leadership states:

'Nothing in this law compels the Commission or other authority to hold any hearing and no person, other than the person whose conduct is being investigated, is entitled as of right to be heard by the Commission.'

If you do not contact the Ombudsman Commission within 21 days after receiving this letter, the Commission will proceed with its investigation in your absence and take whatever action is considered necessary under the Constitution and the Organic Law on the Duties and Responsibilities of Leadership.

If the Ombudsman Commission is satisfied that there is a prima facie case that you are guilty of misconduct in office, it is obliged by Section 29 (1) of the Constitution and Sections 17 (d), 20 (4) and 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership to refer the matter to the Public Prosecutor for prosecution before a Leadership Tribunal.

We therefore strongly suggest that it is in your best interests to give this matter your urgent consideration and attention.

CHARLES MAINOJOE WAUGLANINCHIB TETANGChief OmbudsmanOmbudsmanOmbudsman"The Plaintiff replied on the 21 June 1994:

"PO Box 1

WAIGANI NCD

Phone: 201009

Fax: 200993

21 June 1994

Chief Ombudsman

Ombudsman Commission of Papua New Guinea

PO Box 852

BOROKO

National Capital District

Dear Sir

RE: ALLEGED BREACHES OF THE LEADERSHIP CODE

I refer to and acknowledge your letter to me dated 8 June 1994.

You will appreciate that the allegations are extensive and cover many diverse and desperate areas. Accordingly I ask that I be allowed one month to respond in writing to the allegations and thereafter be allowed to be heard by your investigators.

Yours faithfully

JOHN M NILKARE CMG MP"

And wrote again on the 28 June 1994 requesting a reply:

"Mr John Nilkare

PO Box 1

WAIGANI NCD

Phone: 201009

Fax: 200993

28 June 1994

Sir Charles Maino

Chief Ombudsman

Ombudsman Commission of Papua New Guinea

PO Box 852

BOROKO

National Capital District

Dear Charles,

ALLEGATIONS RE: LEADERSHIP CODE

I refer to my letter to you dated 21 June, 1994. I have had no response from your office to this letter.

For the sake of certainty and the avoidance of doubt please note that pursuant to my rights under, inter alia, section 0...