N5977 (LT)

PAPUA NEW GUINEA
IN THE CONSTITUTIONAL OFFICE
HOLDERS RIGHTS TRIBUNAL

LT 1 of 2015

REFERENCE BY THE NATIONAL EXECUTIVE COUNCIL

OF A MATTER PURSUANT TO SECTION 5 ORGANIC LAW ON THE GUARANTEE OF THE RIGHTS AND INDEPENDENCE OF CONSTITUTIONAL OFFICE HOLDERS

TO THE TRIBUNAL

APPOINTED UNDER SECTION 4 AND 5 OF THAT LAW

AND

IN THE MATTER OF VELA KONIVARO,
CLERK OF THE NATIONAL PARLIAMENT

THE HONOURABLE DEREK HARTSHORN, ML, CHAIRMAN,
THE HONOURABLE MARTIN IPANG, MEMBER,
THE HONOURABLE SIR KINA BONA, KBE, MEMBER

Waigani:
2015: May 4th, 28th

Cases: 

SCRev No. 1 of 1990; Electoral Commission [1990] PNGLR 441 
Bonga v. Sheehan [1997] PNGLR 452 
Re Public Prosecutor's Power to Request the Chief Justice to Appoint a 
Leadership Tribunal (2008) SC1011

Counsel:

Mr. J. Issack, for the Constitutional Office-Holder
Mr. P. Kaluwin, for the Public Prosecutor

28th May, 2015

1. BY THE TRIBUNAL: This is a decision on an application for this tribunal to be disbanded. The application is made by Mr. Vela Konivaro, the Clerk of the National Parliament, in respect of whom this tribunal was constituted.

Background

2. On 23rd January 2015 the members of this tribunal were appointed by the Chief Justice pursuant to sections 4 and 5 Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders (Organic Law) to enquire into and determine what is stated as allegations of misconduct in office brought by the National Executive Council (NEC) against Mr. Konivaro.

The application

3. In his application filed 23rd February 2015, Mr. Konivaro seeks six orders. They seek that the tribunal was not properly constituted, does not have jurisdiction and should be disbanded. The orders sought raise five grounds. At the hearing of the application Mr. Konivaro also relied upon a further 2 grounds.

4. The grounds in essence are:

a)	the improper conduct allegations are referred to as "misconduct in 	office" and thereby necessitate a different procedure to be followed 	than has been in this instance;

b)	this tribunal is not correctly named in the instrument of appointment 	and the instrument of appointment is incorrect;

c)	the appointing authority, the NEC did not conduct an investigation as is required;

d)	there is no proper statement of reasons;

e)	the Prime Minister incorrectly acted unilaterally in requesting the 	Public Prosecutor to prosecute this matter before the tribunal.

Improper conduct allegations referred to as "misconduct in office"

5. In the orders one and five that he seeks, Mr. Konivaro in essence contends that the improper conduct allegations against him are all referred to as "misconduct in office" by the NEC and by the Chief Justice in the instrument that appointed the members of this tribunal. Pursuant to s. 7 (c) Organic Law, a Constitutional office-holder may be removed from office only in accordance with Division III.2 (leadership code) Constitution, for misconduct in office.

6. That requires a separate investigation by the Ombudsman Commission and referral to the Public Prosecutor if the Ombudsman Commission is satisfied that there is a prima facie case. If the Public Prosecutor considers that the matter should be proceeded with, he refers the matter to the appropriate tribunal to be appointed by the Chief Justice. This has not occurred in this instance and so it is contended that this tribunal has not been properly constituted and does not have the necessary jurisdiction.

7. The Public Prosecutor contends as to order one that the procedure as established in Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011 has been complied with. At para 117 it is stated:

" In respect of the three other grounds of removal of COHs namely; misbehaviour, inability and breach of employment condition; the investigative and referral process is set out in ss 178(a) and (b), 179(1) and 180(1) of the Constitution in respect of law officers and s 5(1) of OLGRICOH in respect of other COHs. There is no question that the respective appointing authority has jurisdiction to investigate and determine the "question of removal". This is a special process which is initiated and completed by the COHs' appointing authority. This investigative process is distinct from the Leadership Code process. Both OC and PP have no role to play in this process."

8. As to order five, the Public Prosecutor contends that amongst others, the allegations against Mr. Konivaro are matters that fall under s. 178 (a) and (b) Constitution and s. 5 (a), (b) and (d) Organic Law and also for misconduct in office and consequently, the Ombudsman Commission and the Public Prosecutor should be involved in the process.
Consideration

9. The members of this tribunal were appointed by the Chief Justice pursuant to sections 4 and 5 Organic Law. This was after the NEC made the request for him to appoint three judges to hear and determine the matter, pursuant to s. 5 (1) Organic Law. In the NEC Decision no. 242/2014 it is stated that amongst others, that it "approved to advise the Head of State that it is satisfied the question of removal of the Clerk of Parliament, Mr. Vela Konivaro, should be investigated;" and "approved to request that the Chief Justice appoint three Judges to be the Chairman and Members of the Tribunal to hear and determine the matter." We are satisfied that s. 5(1) Organic Law has been complied with and that the members of this tribunal were properly appointed.

10. As to the instrument of appointment stating that amongst others that the tribunal is "…. to enquire into and determine allegations of misconduct in office brought by the National Executive Council….."; that statement is not capable of determining the limit of this tribunal's jurisdiction. The Organic Law does that and provides that this tribunal's jurisdiction includes that it determine the question of the removal from office of a constitutional office-holder.

11. A consideration of the relevant sections of the Organic Law, in our view demonstrates this. Section 5 (1) Organic Law concerns amongst others, "…the question of the removal from office of a constitutional office-holder…" and that the, "… tribunal is to hear and determine the matter."

12. Section 6 provides:

"The tribunal shall make due enquiry into any matter referred to it without regard to legal formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice."

and section 8 (2) provides:

"If the tribunal reports that the constitutional office-holder should be removed from office,….."

13. The subject statement in the instrument of appointment does not fetter and is not capable of fettering the tribunal's jurisdiction as contained in the Organic Law. Under s. 5 Organic Law the Chief Justice only has the power to appoint. He does not have the power to define or restrict what is to be investigated.

14. Consequently, this tribunal shall make due enquiry into any matter referred to it, and shall inform itself in such manner as it thinks proper. It will investigate the removal from office of Mr. Konivaro but only in respect of s. 7 (a), (b) and (d) Organic Law given that the membership of this tribunal was appointed upon request from the NEC, the appointing authority, and not via the Leadership Code process.

15. For the above reasons the orders sought in paragraphs one and five of the application of Mr. Konivaro are refused.

Tribunal not correctly named in instrument

16. Mr. Konivaro contends that in the instrument of appointment, reference is made to the "Appointment of a Leadership Tribunal" and that the members of the tribunal "…. constitute the Leadership Tribunal…" when pursuant to s. 1 and 4 Organic Law, the tribunal that is established is a "Constitutional Office-holders Rights Tribunal." Consequently, the instrument of appointment of the tribunal is defective, irregular and void. The tribunal is not properly constituted and cannot proceed on a defective instrument of appointment of tribunal, it is contended.

17. The Public Prosecutor contends that whilst it is correct that the instrument of appointment is not headed by its appropriate heading, this is not a matter that is material to the merits of the matter. It is not a matter that is prejudicial to either Mr. Konivaro or the appointing authority, the NEC.

Consideration

18. Section 4 Organic Law established a Constitutional Office-holders Rights Tribunal and s. 1 Organic Law defines "tribunal" as meaning the Constitutional Office-holders Rights Tribunal established by s. 4. The Chief Justice appointed the members of this tribunal pursuant to ss. 4 and 5 Organic Law. Those sections only refer to a Constitutional Office-holders Rights Tribunal. The Chief Justice could not make appointments to any other tribunal pursuant to ss. 4 and 5 Organic Law and so the appointments he made were to the Constitutional Office-holders Rights Tribunal, not any other tribunal. The use of the words Leadership Tribunal in our view is a reference to the Constitutional Office-holders Rights Tribunal as such a tribunal enquires into matters referred to it concerning a constitutional office-holder, and a constitutional officeholder is a leader. Even if the reference to Leadership Tribunal is an error, we are not of the view that it adversely affects the appointment of the members of this tribunal, or its jurisdiction. Again, the Chief Justice only has the power to appoint members to the Constitutional Office-holders Rights Tribunal under ss. 4 and 5 Organic Law. He does not have the power to appoint members to other tribunal's under those sections. The orders sought in paragraph 4 of Mr. Konivaro's application are refused.

Conduct of investigation

19. Mr. Konivaro contends that the NEC, the appointing authority did not properly conduct its own investigation and did not observe the principles of natural justice when determining the question of his removal as Clerk of Parliament. He contends that there was no opportunity accorded to him to respond to the allegations by the NEC and that the NEC only acted upon an investigation report compiled by the Speaker of Parliament based on some allegations from unknown and "pen-named" disgruntled officers within the Parliamentary Services.

20. The Public Prosecutor contends that an investigation was recommended and carried out by a Special Investigation team and a Special Investigation Report was compiled. It was submitted to the NEC for deliberation and the NEC reached a decision which is Decision no. 242/2014. Further, although the Statutory Business Paper does not refer to the affording of the right to be heard, Mr. Konivaro was given a letter advising him of the nature of the allegations against him, to which he responded. There is however no evidence in the Decision no. 242/2014 to show that the appointing authority considered his response before referring him to the tribunal.

Consideration

21. We are satisfied that in this instance there was an investigation conducted on behalf of the NEC as to whether the question of Mr. Konivaro's removal arose. In our view, there is no reason why an appointing authority cannot request another person or body to investigate on its behalf and report to it. We are satisfied that is what happened here. After the report was considered NEC then made its decision. 

22. As to no opportunity being accorded to Mr. Konivaro to respond to the allegations against him, it is not disputed that by letter dated 9th October 2013 Mr. Konivaro was written to by the Speaker of Parliament. The letter was copied to the Prime Minister. The letter amongst others, informed of 14 allegations against Mr. Konivaro. The letter did not specifically request Mr. Konivaro to respond to the allegations but it did contain an invitation to voluntarily resign.

23. Mr. Konivaro did respond to the allegations by his letter of 19th October 2013. He provided a detailed answer to each of the 14 allegations against him. As to the NEC being required to observe the principles of natural justice when determining the question of Mr. Konivaro's removal, this is not provided for in the Organic Law. The Organic Law in s. 6 provides for the tribunal to comply with the principles of natural justice.

24. Reliance is placed by Mr. Konivaro upon Re Public Prosecutors Power (supra) at p.6 in which the Court said:

"The COH's appointing authority has jurisdiction to investigate the complaint. In conducting its investigations and determining the question of removal, it must, amongst other things, observe principles of natural justice."

25. As to the rules of natural justice, as Sheehan J said in SCRev No. 1 of 1990; Electoral Commission [1990] PNGLR 441 at 454:

"Basically this is a duty to act fairly and without bias or oppression. A prime example is that the body or authority empowered to make a decision affecting a person's public rights is obliged to give that person the opportunity to be heard before a decision is made contrary to his interests."

26. In this instance, although it would appear that Mr. Konivaro was not specifically given an opportunity to respond to the allegations against him, Mr. Konivaro did take the opportunity given to him by being sent the letter of 9th October 2013, to respond comprehensively to those allegations. The purpose of giving to a person the opportunity to be heard is for that person to be able to present his version of events and for him to have his say. By Mr. Konivaro responding as he did, he has achieved the result that the giving of an opportunity to be heard seeks. Consequently we are not satisfied that Mr. Konivaro has been prejudiced or treated unfairly. We are also mindful that if this tribunal continues with this enquiry it must do so subject to compliance with the principles of natural justice and so Mr. Konivaro will amongst others be given the opportunity to be heard.

27. For the above reasons the orders sought in paragraph 2 of Mr. Konivaro's application is refused.

Statement of reasons

28. Mr. Konivaro contends that there was no proper statement of reasons accompanying the notice of referral by the NEC to the Chief Justice, as required by s. 8 Organic Law. He places reliance upon the decision of Bonga v. Sheehan [1997] PNGLR 452 in which it was held that amongst others that a statement of reasons under s. 27 Organic Law on the Duties and Responsibilities of Leadership (OLDRL), must consist of a clear statement of the misconduct alleged, an opinion that the leader is guilty of misconduct and the reasons for its opinion. As there was not a proper statement of reasons provided as required, it is contended, the notice by the appointing authority to the Chief Justice was defective, highly irregular, void ab initio and thereby warranting the tribunal to be disbanded.

29. The Public Prosecutor contends that in this instance, the Special Investigation Report is by its nature the statement of reasons. The term used on the set of documents compiled for the purposes of the referral is not material to the content of the file. Further, Bonga v. Sheehan dealt with a leader who is not a constitutional office-holder. Also, the content of the Investigation Report is not evidence unless and until properly brought to the tribunal in the course of its investigations.

Consideration

30. It is the case that in Bonga v. Sheehan (supra) Kapi DCJ held that a statement of reasons under s.27 OLDRL must consist of a clear statement of the misconduct alleged, an "opinion" that the leader is guilty of the misconduct and the reasons for its opinion. It was not held though that the absence of a statement of reasons or that an incomplete statement of reasons somehow renders a notice of referral to the Public Prosecutor defective and void ab initio.

31. In Bonga v. Sheehan (supra) Kapi DCJ said as to a statement of reasons 
under s. 27 (1) OLDRL:

"The purpose of the statement under s. 27 (1) is to give the Public 
Prosecutor a basis to consider if he should proceed further with the matter."

32. This demonstrates a difference with a statement of reasons under s. 8 Organic Law as under s. 8 the statement of reasons is referred to the tribunal, not the Public Prosecutor.

33. Further, Kapi DCJ states:

"In essence, the statement of reasons is the opinion of the Commission and at the highest it is the case the prosecution proposes to prove against the leader. It is properly to be regarded as the opening statement of the prosecution case. ………….

Where a leader contests the counts as in the present case, the statement of reasons with the exhibits cannot in anyway constitute the evidence that is required to prove the counts. It was the duty of the Tribunal to enquire into the allegations and the Prosecution to call the evidence to prove the counts."

34. As the statement of reasons does not constitute evidence and is properly to be regarded as the opening statement of the prosecution case, in our view, if the statement of reasons is missing or is incomplete, it does not have the effect of rendering a fatal blow to the tribunal and its enquiry. It is the duty of the tribunal to enquire into the allegations, to determine the counts and the prosecution to call evidence to prove the counts.

35. We accept the submission of the Public Prosecutor that the Special Investigation Report is by its nature the statement of reasons. To the extent that it is incomplete, it does not entitle Mr. Konivaro to the orders that he seeks.

Incorrect instrument of appointment

36. This is an additional ground relied upon by Mr. Konivaro. It is that the members of the tribunal were appointed to constitute a "Leadership Tribunal" to enquire into and determine allegations of "misconduct in office". The proper procedure for the appointment of a tribunal to consider allegations of misconduct in office have not been followed. Hence the tribunal is not properly constituted and does not have the requisite jurisdiction, it is contended.

37. We are satisfied that our consideration of the orders sought in paragraphs one and five of Mr. Konivaro's application above adequately deal with this ground, and the orders sought in respect of this ground are refused.

Whether the Prime Minister acted incorrectly

38. This is a further additional ground relied upon by Mr. Konivaro. It is that the Prime Minister acted unilaterally in making a decision to request the Public Prosecutor to prosecute this matter in the absence of an NEC decision - a decision of the appointing authority.

39. The Public Prosecutor submits that there is no doubt that the Prime Minister is the Chairman of NEC and is entitled to request the Public Prosecutor to prosecute in respect of a decision of the NEC to request the appointment of members of a tribunal to hear and determine a matter. Further, in Re Public Prosecutors Power (supra), it was held that the Public Prosecutor must prosecute the matter before the tribunal.

Consideration

40. We agree with the Public Prosecutor. There is no doubt that the Prime Minister is the Chairman of NEC. Moreover, it was held in Re Public Prosecutors Power (supra) that the Public Prosecutor must prosecute a matter before the tribunal: para 133, and so in the subject letter of the Prime Minister, the Prime Minister was merely requesting the Public Prosecutor to do something that the Public Prosecutor is obliged to do in any event.

41. Further, the NEC had already made a decision, the effect of which was for there to be a tribunal that enquires into allegations, and for that purpose it was necessary to have someone appear on behalf of the appointing authority. The Prime Minister was attending to a consequential matter arising from an NEC decision.

42. We also mention that we are not of the view that any prejudice is caused to Mr. Konivaro by the actions of the Prime Minister about which complaint is made. Further, Mr. Konivaro did not contend that he was in any way prejudiced by the actions of the Prime Minister.

43. Consequently, for the above reasons all of the relief sought by Mr. Konivaro in his application is refused.
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Lawama Lawyers: Lawyers for the Constitutional Office-Holder
Office of the Public Prosecutor: Lawyers for the Public Respondent