Re Belden Namah

• Jurisdiction: Papua New Guinea
• Judge: Justice Terence J. Higgins, Ms Patricia Tivese (Senior Principal Magistrate), Mr. Alex Kalandi (Senior Magistrate)
• Judgment Date: 09 April 2018
• Citation: (2018) N7194 (LT)
• Court: Leadership Tribunal
• Year: 2018
• Judgement Number: N7194 (LT)

Full : LT. No 6 of 2015; The Leadership Tribunal appointed pursuant to Section 27(2) and 27(7) (e) of the Organic Law on Duties and Responsibilities of Leadership and in the matter of the Honourable Belden Namah, MP (“the Leader”), Member for Vanimo-Green (2018) N7194 (LT)

Leaadership Tribunal: Justice Terence J. Higgins, Ms Patricia Tivese (Senior Principal Magistrate), Mr. Alex Kalandi (Senior Magistrate)

Judgment Delivered: 9 April 2018

N7194 (LT)

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT TO SECTION 27(2) AND 27(7)(e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND

IN THE MATTER OF THE HONOURABLE BELDEN NAMAH, MP (“the Leader”), MEMBER FOR VANIMO-GREEN OPEN

REFERENCE NUMBER LT. NO. 6 OF 2015

BEFORE:

HONOURABLE JUSTICE TERENCE J. HIGGINS – Chairman

HER WORSHIP MS. PATRICIA TIVESE – Senior Principal Magistrate – Member

HIS WORSHIP MR. ALEX KALANDI – Senior Magistrate - Member

Waigani:

2017: 18th, 19th, 20th October,

7th - 10th November

2018: 9th April

LEADERSHIP TRIBUNAL – referral by Public Prosecutor – Member of Parliament -misconduct in office – attempting to arrest Chief Justice – seeking dismissal of District Administrator – failure to lodge accurate returns on time with Ombudsman Commission – with Integrity of Political Parties and Candidates Commission – Quaere power of Registrar to impose fines

PENALTY – recommendations for dismissal and fines for late and inaccurate returns - acquittal on charge relating to seeking dismissal of District Administrator

Cases Cited:

Papua New Guinea Cases

Albert Karo v Ombudsman Commission N1383

Application pursuant to Section 155(4) by John Mua Nilkare SC 536

Hon Belden Namah v Tribunal and others [2016] N6397

In the matter of Hon. Sir Moi Avei [2007] PGLT 4

In re Gallus Yumbui [2007] PGLT 2

In re Knight [2015] PGLT 3

In re Michael Somare [2011] PGLT 1

Paulus Pawa v The State (1981) PNGLR 498

Re Sigulogo [1988] PGLT 2

Supreme Court Reference No. 2 of 1992 [1992] PNGLR 336

The State v Kais Pohien (2016) N6350

Overseas Cases

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Dietrich v R (1992) 177 CLR 292

Emmanuel v Dau [1995] ACTSC 196

Jago v District Court of NSW (1989) 168 CLR 23

LM v Childrens Court of ACT & DPP [2014] ACTSC 26

Nudd v R [2006] HCA 9; 80 ALJR 614; 162A. Crim R 301; 225 ALR 161

Re application by TS [2002] ACT SC 102

R v Delly [2003] ACTSC 113

R v Forsyth [2013] ACTSC 179

R v Griffin [2006] ACTSC 77

R v Griffin [2007] ACTCA 6

R v Upton [2005] ACTSC 52

S & B Pty Ltd v Podobnik (1994) 53 FCR 180

Counsel:

Mr. P. Kaluwin with Mr. F. Popeu, Counsel Assisting the Tribunal

Mr. G. Sheppard with Mr. G. Purvey & Mr. P. Tabuchi, Counsel for the Leader

09 April, 2018

1. HIGGINS, J – Chairman & Ms. PATRICIA TIVESE, SPM - Member: On 28 September 2017, Salika DCJ, then Acting Chief Justice of Papua New Guinea, appointed us to constitute a Leadership Tribunal to enquire into and determine allegations of misconduct in office brought against the Hon. Belden Namah, MP, Member for Vanimo-Green Open in the National Parliament (the Leader).

2. As a matter of history, a previous Tribunal was convened pursuant to a request from the Public Prosecutor dated 14 August 2015 following a Referral from the Ombudsman Commission made on 13 April 2015, to Chief Justice Injia. That led to the appointment of a Tribunal comprising Poole J, a National and Supreme Court Justice and Senior Magistrates Mark Selefkariu and Ernest Wilmot.

3. By order of Cannings J of 2 September 2016 that Tribunal was permanently stayed from further proceeding due to reasonable apprehension of bias on its part. That arose out of a challenge to the decision of the Chief Justice to appoint the Tribunal as one of the allegations concerned the interruption of proceedings before the Chief Justice by the Leader. The argument was raised that the Chief Justice could not validly appoint the Tribunal by reason of personal interest. That contention was dismissed but Cannings J found that the role the Tribunal took in those proceedings before him raised a reasonable apprehension of bias on its part towards the Leader (see Hon Belden Namah v Tribunal and others [2016] N6397).

4. Following that decision, the Public Prosecutor, on 8 November 2016, wrote to the Chief Justice requesting the appointment of another Tribunal to inquire into the allegations initially referred in April 2017. That Referral had particularized 15 allegations of misconduct in office.

5. In the current request, the Public Prosecutor has deleted some of those allegations and requested inquiry into only 5 categories of allegations.

6. These are:

CATEGORIES OF ALLEGATIONS AS DETERMINED BY THE PUBLIC PROSECUTOR PURSUANT TO PART C 1.2 (b) OF THE PROTOCOL FOR THE APPOINTMENT OF LEADERSHIP TRIBUNALS AND CONSTITUTIONAL OFFICE HOLDERS RIGHTS TRIBUNAL BY THE CHIEF JUSTICE

CATEGORY 1

INTERFERENCE WITH THE ADMINISTRATIVE PROCESS – SUSPENSION OF DISTRICT ADMINISTRATOR CONRAD TILAU

It is alleged that on the 14th August 2007 the Leader demanded for the removal, suspension and discipline of Conrad Tilau, Vanimo-Green District Administrator; and directed that his staff, John Salle be appointed as Acting District Administrator without lawful authority.

It is therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution

CATEGORY 2

IMPROPER CONDUCT AND ABUSE OF POWER WHEN LEADER STORMED THE SUPREME AND NATIONAL COURT BUILDING WHEN COURT WAS IN SESSION AND DEMANDED THE IMMEDIATE RESIGNATION AND ARREST OF THE CHIEF JUSTICE

It is alleged that on the 24th May 2012 the Leader in company of some policemen and soldiers went into Court Room Number Three (3) while Sir Salamo Injia, Chief Justice was presiding over matters and interrupted court proceedings by shouting in a threatening manner and demanded for the immediately (sic) resignation and arresting of the Chief Justice.

It is therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution

CATEGORY 3

LATE OR NON SUBMISSION OF ANNUAL STATEMENT FOR THE PERIOD 6th AUGUST 2007 TO 5th AUGUST 2012

It is alleged that between 17th September 2008 and 17th December 2012 the Leader failed without reasonable excuse or was late in submitting his annual statement to the Ombudsman in accordance with Section 4(1) of the Organic Law on the Duties and Responsibilities of Leadership

It is therefore alleged that the leader is guilty of misconduct in office under Section 4(6)(a) of the Organic Law on the Duties and Responsibilities of Leadership

CATEGORY 4

KNOWINGLY OR NEGLIGENTLY GIVING FALSE, MISLEADING OR INCOMPLETE STATEMENT IN HIS ANNUAL STATEMENT TO THE OMBUDSMAN COMMISSION FOR THE PERIOD AUGUST 2006 TO AUGUST 2007.

It is alleged that on or about the 14th November 2007 and on or about the 5th September 2008 the Leader knowingly or negligently gave his annual statement to the Ombudsman Commission for the periods 6th August 2006 to 5th August 2007 in accordance with Section 4(1)(b) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) that contained false, misleading or incomplete information.

It is therefore alleged that the leader is guilty of misconduct in office under Section 4(6)(b) of the Organic Law on the Duties and Responsibilities of Leadership

CATEGORY 5

FAILURE TO LODGE FINANCIAL RETURNS TO THE OFFICE OF INTEGRITY OF POLITICAL PARTIES AND CANDIDATES COMMISSION AS WINNING CANDIDATE FOR 2012 GENERAL ELECTIONS

It is alleged that from the 8th November 2012 to 26th October 2015 the Leader failed to file a financial return as required by Section 68 of the Organic Law on the Integrity of Political Parties and Candidates 2003

It is therefore alleged that the leader is guilty of misconduct in office under Section 27(5)(b) of the Constitution

Dated this 8th day of November 2016

(Signed)

PONDROS KALUWIN

Public Prosecutor

7. Under the OLDRL, s.27(4):

“The Tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.”

8. Subsection (5) provides:

“If the tribunal finds that a person to whom this law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that -

(a) he be dismissed from office or position; or

(b) as permitted by Section 28(1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection some other penalty provided for by an Act of Parliament be imposed.

(6) The Tribunal shall announce its decision in public, and shall send a copy of the decision to the Speaker, for presentation to the Parliament, and to the National Executive Council …”

9. The “appropriate authority”, pursuant to s.27(7) is defined as the authority to whom in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a...