Re Leadership Tribunal appointed under The Organic Law on the Duties and Responsibilities of Leadership; Re Joseph Auna [1980] PNGLR 500

• Jurisdiction: Papua New Guinea
• Judge: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Miles J
• Judgment Date: 02 December 1980
• Citation: [1980] PNGLR 500
• Docket Number: Supreme Court Reference No 5 of 1980
• Court: Supreme Court
• Year: 1980
• Judgement Number: SC188

Full Title: Supreme Court Reference No 5 of 1980; Re Leadership Tribunal appointed under The Organic Law on the Duties and Responsibilities of Leadership; Re Joseph Auna [1980] PNGLR 500

Supreme Court: Kidu CJ, Kearney DCJ, Greville–Smith J, Andrew J, Miles J

Judgment Delivered: 2 December 1980

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

IN THE MATTER OF A REFERENCE UNDER S. 18 (2) OF THE CONSTITUTION BY A TRIBUNAL APPOINTED UNDER S. 27 (7) (E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP. AND IN THE MATTER OF JOSEPH AUNA

SUPREME COURT REFERENCE NO. 5 OF 1980

Waigani

Kidu CJ Kearney DCJ Greville Smith Andrew Miles JJ

1-2 December 1980

CONSTITUTIONAL LAW — Constitution of the Independent State of Papua New Guinea — Leadership Code — Misconduct in office — Person must be holder of an office to be dealt with — Organic Law on Duties and Responsibilities of Leadership, s. 27 (7) (e) — Constitution, s. 26 (1).

STATE SERVICES — Public service — Leadership Code — Misconduct in office — Person must be holder of an office to be dealt with — Organic Law on Duties and Responsibilities of Leadership, s. 27 (7) (e) — Constitution, s. 26 (1).

A person to whom the Leadership Code applies pursuant to s. 26 (1) of the Constitution may only be dealt with by a Tribunal constituted under s. 27 (7) (e) of the Organic Law on Duties and Responsibilities of Leadership, for misconduct in office whilst he is the holder of an office to which the Code applies; it need not be the office which was the subject of investigation into alleged misconduct: he cannot be so dealt with when he no longer occupies an office to which the Code applies.

Reference

This was a reference to the Supreme Court pursuant to s. 18 (2) of the Constitution, which provides that where any question relating to the interpretation or application of any Constitutional Law arises in any court or tribunal other than the Supreme Court, the court or tribunal may refer the matter to the Supreme Court. The questions which were referred by a Tribunal established pursuant to s. 27 (7) (e) of the Organic Law on the Duties and Responsibilities of Leadership, are set out fully at pp. 501-502.

Counsel

L. Gavara Nanu, for the Public Prosecutor.

S. Cory, for Joseph Auna.

Cur. adv. vult.

2 December 1980

KIDU CJ KEARNEY DCJ GREVILLE SMITH ANDREW MILES JJ: Mr. Joseph Auna was the Executive Director of the National Investment and Development Authority (NIDA) from 2nd December, 1976, until 24th July, 1980, when his term appointment expired.

On 25th July, 1980 the National Executive Council decided to appoint Mr. Auna as Ambassador to the Kingdom of Belgium and the EEC/ACP.

It is common ground that the office of Executive Director of NIDA is an office to which the provisions of the Leadership Code apply; see s. 26 (1) (g) of the Constitution of the Independent State of Papua New Guinea.

It appears that the Ombudsman Commission, carrying out its statutory function under Pt. 3 of the Organic Law on the Duties and Responsibilities of Leadership, had been investigating certain alleged misconduct in office of Mr. Auna, during his term as Executive Director of NIDA. The Commission satisfied itself that there was a prima facie case that Mr. Auna had been guilty of misconduct in office; and pursuant to s. 29 (1) of the Constitution on 21st August, 1980, referred the matter to the public prosecutor.

As at 21st August, Mr. Auna's appointment as "Ambassador Designate", as it has been termed before us, was still current; however, on 27th August the National Executive Council decided to revoke it.

The public prosecutor considered the matter referred to him, and decided that it should be proceeded with. On 26th September a Tribunal was constituted under s. 27 (7) (e) of the Organic Law. On 30th September, pursuant to s. 27 (2) of the Organic Law, the public prosecutor referred the matter to the Tribunal for inquiry. On the same day, he notified Mr. Auna, and drew to his attention that because the matter stood referred to a Tribunal, Mr. Auna was automatically suspended from duty under s. 28 of the Organic Law.

Before us, it became clear that the public prosecutor was not aware on 30th September that Mr. Auna's ambassadorial appointment had been revoked by the National Executive Council on 27th August.

The Tribunal commenced its inquiry into the matter on 22nd October. Mr. Auna took the point that the Tribunal had no jurisdiction to carry out the inquiry. Following argument, the Tribunal decided, pursuant to s. 18 (2) of the Constitution, and in a reference which sets out most usefully the facts and reasons, that the following questions should be referred to this Court:

"Does the Tribunal have jurisdiction to hear and determine a reference where the holder of an office under s. 26 (1) of the Constitution is:

(1) no longer occupying the office which was the subject of investigation into alleged misconduct, at a time:

(a) before the reference by the Ombudsman is forwarded to the Public Prosecutor,

(b) between the time the reference by the Ombudsman Commission is forwarded and action is instigated under s. 29 of the Constitution,

(c) between the time of the reference under s. 29 of the Constitution and the appointment of the Tribunal,

(d) between the date on which the Tribunal is appointed and the...