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 [1998] PNGLR 472

• Jurisdiction: Papua New Guinea
• Citation: [1998] PNGLR 472
• Date: 15 April 1997
• Court: Supreme Court
• Year: 1998

Full Title: 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 [1998] PNGLR 472

Supreme Court: Amet CJ, Kapi DCJ, Los J

Judgment Delivered: 15 April 1997

1 Application by John Mua Nilkare for judicial review of decision of Leadership Tribunal finding him guilty of 25 charges of misconduct in office under the Leadership Code and his dismissal from office as a member of Parliament—whether strict compliance with rules, guidelines and regulations for disbursement of Electoral Development Funds

2 Meaning of "lawfully" in s13 Organic Law on the Duties and Responsibilities of Leadership—whether to be construed in it strict legal (technical) sense—whether Guidelines for disbursement of Electoral Development Funds have the force of law.

3 Constitution s27, s155(4)—Organic Law on the Duties and Responsibilities of Leadership, s13(a)

4 Penalties—Power of Supreme Court to reconsider penalties and impose other penalties—Organic Law on the Duties and Responsibilities of Leadership

5 Associated Picture Houses Ltd v Wednesbury Corporation [1948] 1 KB 223, Independent State of Papua New Guinea v Philip Kapal [1987] PNGLR 417, Kekedo v Burns Philp (PNG) Ltd [1988–89] PNGLR 122, Rex Kupu v Demas Doria [1988–89] PNGLR 1, Re Moki Nikints [1988–89] PNGLR 164, Constitutional Reference No 1 of 1978; Re Leo Morgan [1978] PNGLR 460, Central Pomio Logging Corporation Pty Ltd v The Independent State of Papua New Guinea [1992] PNGLR 20, Application by Andrew Posai [1995] PNGLR 350, Avia Aihi v The State (No 1) [1981] PNGLR 81, SCR No 2 of 1981; Re S19(1)(f) Criminal Code [1982] PNGLR 150, The State v The Independent Tribunal; Re Moses Sasakila [1976] PNGLR 491, Mauga Logging Co Pty Ltd v South Pacific Oil Palm Development Pty Ltd (No 1) [1977] PNGLR 80 referred to

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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 s155(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.

S155(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 s155(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 the 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 s27, 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...