Vela Konivaro v Theo Zurenuoc

• Jurisdiction: Papua New Guinea
• Judge: Makail, J
• Judgment Date: 23 December 2014
• Citation: (2014) N5846
• Court: National Court
• Year: 2014
• Judgement Number: N5846

Full : OS (JR) NO 582 of 2014; Vela Konivaro v Hon. Theo Zurenuoc, MP Speaker of Parliament and Hon. Peter O’Neill, CMG, MP Chairman and other Members of Parliament comprising the National Executive Council and the National Executive Council and Podi Kohu, as acting Clerk of Parliament and The Independent State of Papua New Guinea (2014) N5846

National Court: Makail, J

Judgment Delivered: 23 December 2014

N5846

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 582 OF 2014

BETWEEN

VELA KONIVARO

Plaintiff

AND

HON. THEO ZURENUOC, MP

SPEAKER OF PARLIAMENT

First Defendant

AND

HON. PETER O’NEILL, CMG, MP

CHAIRMAN AND OTHER MEMBERS OF PARLIAMENT COMPRISING THE NATIONAL EXECUTIVE COUNCIL

Second Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL

Third Defendant

AND

PODI KOHU, AS ACTING CLERK OF PARLIAMENT

Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Makail, J

2014: 10th & 23rd December

JUDICIAL REVIEW – Review of decision to suspend – Suspension of Clerk of Parliament – Referral to Tribunal for investigation – Procedure for suspension and referral discussed – Breach of natural justice – Denial of right to be heard before suspension and referral to Tribunal for investigation – Whether right to be heard available – Constitution – Section 59 – Organic Law on Certain Constitutional Officer-holders – Section 7 – Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders – Sections 5 & 9.

Cases cited:

Vela Konivaro v. Hon. Theo Zurenuoc, NEC & The State (2014) N5724

Francis Damem v. Mark Mapakai as Minister for Justice & Ors (2004) N2730 Joseph Klapat v. NEC & Ors (2014) N5536

Supreme Court Reference: Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011

Rimbink Pato v. Manjin (1999) SC622

Simon Ketan v. Lawyers Statutory Committee (2001) N2290

Pius Nui v. Pius Nui v. Senior Sergeant Mas Tanda (2004) N2765

Counsel:

Mr J. Issack, for Plaintiff

Mr P. Kuman, for First and Fourth Defendants

Mr I. Molloy, QC with Mr N. Tame, for Second, Third and Fifth Defendants

JUDGMENT

23rd December, 2014

1. MAKAIL, J: This is an application for judicial review. Leave was granted on 09th September 2014: see Vela Konivaro v. Hon. Theo Zurenuoc, NEC & The State (2014) N5724. The Court has now heard all parties in relation to the grounds of review and also considered the written submissions presented by them.

Evidence

2. The following affidavits were tendered by consent and marked exhibits.

· Affidavit of the Plaintiff sworn on 23rd August 2014 and filed on 24th August 2014 (Exhibit “P1”).

· Supplementary Affidavit of the Plaintiff sworn on 27th August 2014 and filed on 28th August 2014 (Exhibit “P2”).

· Additional Affidavit of the Plaintiff sworn and filed on 24th October 2014 (Exhibit “P3”).

· Affidavit of the First Defendant sworn and filed on 22nd September 2014 (Exhibit “D1”).

· Affidavit of Ilagi Veali sworn and filed on 04th November 2014 (Exhibit “D2”).

· Affidavit of Nicholas Tame sworn and filed on 06th November 2014 (Exhibit “D3”).

Undisputed Facts

3. From these affidavits, the following are the undisputed facts:

· In May 2013, the plaintiff was appointed Clerk of the National Parliament of Papua New Guinea. The Clerk of Parliament is a Constitutional Office-holder.

· A number of allegations of abuse of office and misuse of funds were raised against the plaintiff. Some of them were unauthorised changes to bills passed by Parliament and misuse of Parliament funds to renovate his house including building a fence around it.

· In a letter to the plaintiff dated 09th October 2013, the first defendant gave the plaintiff fourteen days to resign, if not, he would be referred to the Prime Minister for further disciplinary action.

· The plaintiff did not resign. Instead, on 19th October 2013, the plaintiff wrote to the first defendant and responded to the allegations.

· The first defendant set up an Investigation Committee to investigate the allegations and report to him. It conducted its investigation and reported to him. The first defendant referred the plaintiff to the second and third defendants for further disciplinary action.

· On 07th August 2014, the second and third defendants made a decision to firstly, suspend the plaintiff, secondly, request the Chief Justice to set up a Tribunal to investigate allegations against him and thirdly appoint the fourth defendant as acting Clerk of Parliament. It should be stated here that at the date of trial, the fourth defendant had since died.

· On 13th August 2014, the decision was published in a notice in the National Gazette and communicated to the plaintiff on 20th August 2014.

· On 24th August 2014, he commenced proceeding to have the Court review the decision.

Grounds of Review

4. The grounds of review are:

4.1. Breach of natural justice.

4.2. Ultra vires.

4.3. Bad faith.

4.4. Bias.

4.5. Unreasonableness.

Breach of Natural Justice

5. From the submissions, the plaintiff’s main ground for seeking review of the decision is breach of natural justice. For this ground, the plaintiff mainly repeated his submissions made in the leave application. The gist of his submissions is that he was not given the opportunity to be heard before the second and third defendants made the decision to suspend and refer him to the Tribunal for investigation.

6. He claimed that while section 9 of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders which provides for suspension of the Clerk of Parliament is silent on the question of right to be heard, it is implicit in the referral process that such a right is available in light of the importance of the Office of the Clerk of Parliament as one of the Constitutional Office-holders under section 221 of the Constitution.

7. He submitted that the second and third defendants as the decision making authority must observe the principles of natural justice under section 59 of the Constitution and the minimum requirement is to afford him the opportunity to respond to the allegations before suspending and referring him to the Tribunal for investigation.

8. Even if the defence were to argue that he was heard when he responded to the allegations in his letter to the first defendant dated 19th October 2013, it was not formally a response as he was given an ultimatum to resign within 14 days and secondly, there is no evidence that this letter was presented to the second and third defendants for consideration before they made the decision to suspend and refer him to the Tribunal for investigation.

9. The first and fourth defendants submitted that this ground is misconceived because there is no right to be heard in the process of suspension and referral of a Clerk of Parliament. That right can only be availed of at the hearing before the Tribunal. The Court must not unnecessarily interfere with the referral process and must allow it to be completed.

10. The second, third and fifth defendants submitted that to suggest that a right to be heard before the plaintiff is suspended and referred to the Tribunal is a ridiculous notion because firstly, such a proposition would suggest a right that is not intended to be available to the plaintiff in the scheme of the investigation and disciplinary process established under the Organic Law on Certain Constitutional Office-holders and Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders.

11. This right is not available because the appointing authority is not vested with investigative powers, expertise and time such that it should be required to give the plaintiff an opportunity to respond to the allegations before making a decision to suspend and refer him to the Tribunal for investigation. It is not its function. Its function is if it is satisfied that the question of the removal from office of the Clerk of Parliament should be investigated, it shall request the Chief Justice to appoint a Tribunal to hear and determine the matter. This was what the second and third defendants did.

12. Secondly, the right to be heard is at the Tribunal and it is the function of the Tribunal to investigate, make appropriate findings and recommendation to the appointing authority. Following on from these reasons and finally, they submitted the proceeding is an attempt to derail the whole process of referral of the plaintiff to the Tribunal for investigation.

13. I consider that this ground raises the fundamental issue whether the plaintiff has a right to be heard before the decision to suspend and refer him to the Tribunal for investigation. The grounds of ultra vires, bias, bad faith and unreasonableness of the decision are dependent, if not intertwine this ground.

14. Section 9 of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders provides for suspension of Constitutional Officer-holders, in this case, the Clerk of...