Manoka, In re In re Organic Law on Duties and Responsibilities of Leadership [2014] PGLT 1; N5597(LT) (12 May 2014)

N5597 (LT)

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

AND:

IN THE MATTER OF DR. BILLY MANOKA, COMMISSIONER INDEPENDENT CONSUMER COMPETION COMMISSION.

REFERENCE NUMBER LT.N0.1 OF 2014

BEFORE:

JUSTICE SALATIEL LENALIA
Chairman

HIS WORSHIP MR. IGNATIUS KUREI
Senior Magistrate – Member

HER WORSHIP MS. ROSIE JOHNSON
Senior Magistrate – Member

Waigani: 24th & 26th March, 16th, April, 7th & 12th May

CONSTITUTIONAL LAW – Leadership Code – Misconduct in office – Failure to submit annual statements to the Ombudsman Commission – Admitted allegations – The Leader admitted liability on all three (3) allegations. Consideration as to whether the Leader should be recommended either for dismissal under s.27 (5) (a) or should he be considered for an alternative penalty pursuant to Section 28(1A) of the Constitution (Leadership Code).

LEADERSHIP TRIBUNAL – Misconduct in office – Failure to submit annual statements for two periods – No serious culpability – "Public Policy and public good" – Alternative penalties – Relevant considerations.

LEADERSHIP TRIBUNAL – Constitutional interpretation – Disqualification from Office – Is Section 12 of the Independent Consumer and Competition Commission inconsistent with Sections 28(1)(g)(ii) 28(1A) of the PNG Constitution and Section 27(5) Of the Organic Law on Duties and Responsibilities of Leadership?

CONSTITUTIONAL INTERPRETATION – Issues raised in questions posed before this Tribunal on disqualification from office of the "Leader" as to has the leader been disqualified under Section 12(f) of the Independent Consumer and Competition Commission Act – A Section 18(2) Reference be referred to the Supreme Court.

Cases cited:

Singorom v Kalaut [1985] PNGLR 238
The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, Constitutional Reference No.1 of 1977 [1977] PNGLR 362
In the Matter of Melchior Pep Member of Parliament (2007) N3134

Counsel:

Mr. P. Kaluwin, the Public Prosecutor
Mr. L. Henao, for the Leader

l2th May 2014

1. THE TRIBUNAL: The hearing of the allegations against Dr. Billy Manoka, Commissioner for Independent Consumer Competition Commission commenced on 24th March 2014. After formally reading the five allegations to the Leader, his lawyer Mr. Sweeney, QC on instructions from the leader, denied the five allegations.

2. When we resumed on 25th March, we adjourned to consider an application on the notice of objection to competency which had not been formally filed, Mr. Sweeney left without formally giving notice to the tribunal members for his absence. The reason for this was he was to travel to Australia by 12 midday.

3. By about 11.30am, Mr. Kaluwin and Dr. Manoka requested an audience with the tribunal members and we were informed that Mr. Sweeney had left. The leader and Mr. Kaluwin requested for adjournment to enable Dr. Manoka find a new lawyer. The hearing was formally adjourned to 16th April 2014.

April 16th, 2014

4. When the tribunal resumed on 16th April, Mr. Kaluwin announced that the leader has a new lawyer. Mr. Henao announced his appearance for Dr. Manoka. The tribunal inquired with both counsels on the status of the leader's previous denials on the five allegations in the Reference. Mr. Kaluwin announced that due to counsels' consultation, he had chosen to withdraw the 4th and 5th allegations. Mr. Henao confirmed this and said, his client now pleads guilty to the three charges on failure to submit his annual statements to the Ombudsman Commission.

5. The tribunal adjourned 1.30 pm to discuss the status of the change of plea from not guilty to guilty plea. When we resumed at 1.30pm, the tribunal formally accepted the leader's guilty plea to the three allegations and also announced the decision to delete or withdraw, 4th and 5th charges. Those charges were withdrawn with consent by Mr. Henao.

6. The Reference by the Public Prosecutor contains three charges. In all the allegations or charges, the Public Prosecutor says that the leader breached Section 4 (1)(2) of the Organic Law on the Duties and Responsibilities of Leadership. The leader's failure to submit to the Ombudsman Commission was contrary to s.4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

7. The three charges read as follows:

"ALLEGATION 1: THAT from 17th April 2007 to 16th April 2008, the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership.

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 17th April 2007 to 16th April 2008;

THREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

ALLEGATION 2: THAT from April 2008 to April 2009 the Leader without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4 (1) of the Organic Law on Duties and Responsibilities of Leadership;

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 17th April 2008 to 16th April 2009;

THEREBY contravening Section 4 (6) (a) of the Organic Law on the Duties and Responsibilities of Leadership.

ALLEGATION 3:THAT from April 2009 to April 2010 the Leader failed without reasonable excuse to give to the Ombudsman Commission a statement in accordance with Section 4 (1) of the Organic Law on the Duties and Responsibilities of Leadership;

IN THAT he failed to furnish to the Ombudsman Commission his annual statement for the period from 17th April 2009 to 16th April 2010;

THEREBY contravening Section 4 (6) (a) the Organic Law on Duties and Responsibilities of Leadership."

8. After reading the above allegations to the leader, he was asked if he admitted or denied liability. The leader then pleaded or admitted liability to all charges. The tribunal then adjourned to consider the statement of reason pleaded guilty to by the Leader. When it resumed, the tribunal unanimously confirmed Dr. Manoka's guilty plea to the three charges of misconduct in office pursuant to s.27 (5) of the OLDRL.

Facts in Brief.

9. The facts to which the leader pleaded guilty to are that, on the advice from the Independent Consumer and Competition Commission, the Governor General on 17th April 2008, appointed Dr. Manoka as a part-time Associate Commissioner of the Independent Consumer and Competition Commission. The appointment was for a period of five (5) years. Such appointment was published on Gazette No.G83 dated 14th May 2008.

10. By virtue of his appointment as part-time Associate Commissioner, Dr. Manoka became a "Leader" under s.26 (1) (g) of the Constitution and was subject to s.4 of the Organic Law on the Duties and Responsibilities of Leadership.

11. The appointment on part-time Associate Commissioner was revoked on 7th May 2010 and Dr. Manoka was substantively appointed as the Commissioner for Independent Consumer Competition Commission on Gazette No.G99 dated 7th May 2010.

12. As a Leader, Dr. Manoka had a Constitutional duty to comply with s.28 of the Constitution and s.4 of the Organic Law on Duties and Responsibilities of Leadership because he failed without reasonable excuse to give to the Ombudsman Commission his annual statements in accordance with Section 4 (1) of the Organic Law on three consecutive periods between 17th April 2007 to 16th April 2008, 17th April 2008 to 16th April 2009 and 17th April 2009 to 16th April 2010.

13. After reading the facts contained in various documents attached to the statement of reasons including the affidavit filed by Mr. Richard Pagen sworn on 19th March and filed 24th March 2014. He is employed with the Office of the Ombudsman Commission as Lawyer and Team Leader of Team 2 attached to the Leadership Division. His affidavit gives a full account of how the leader defaulted by not submitting the annual statements for consecutive periods referred to above. When we resumed at 1.30 pm the tribunal announced its unanimous decision that the leader was guilty.

14. The tribunal then adjourned to allow counsels to address on penalties. At this stage, Mr. Henao, counsel for the leader addressed the tribunal on Constitutional issues on interpretation of Sections 28(1) (g) (ii) and 28(1A) of the Constitution and Section 27(5) of the OLDRL and Section 12(f) of the Independent Consumer and Competition Commission Act 2002.

May 7th, 2014.

15. When the Tribunal resumed on the above date, Mr. Henao of counsel for the leader and Mr. Kupmain representing the Public Prosecutor and counsel assisting the Tribunal, made submissions on the proposed Constitutional Reference pursuant to Section 18(2) of the Constitution. Both counsel agreed that the Leadership Tribunal should make a Reference to the Supreme Court because questions posed by Mr. Henao relate to interpretation of the Constitution in relation to the disqualification of the leader under s.12 (f) of the Independent Consumer and Competition Act 2002.

16. Mr. Henao posed three questions which this Tribunal summarized in the following:
1. On proper interpretation and application of Sections 28((1)(g)(ii) and 28(1A) of the Constitution and Section 27(5) of the Organic Law on Duties and Responsibilities of Leadership (OLDRL):

(a) Is the power to impose a penalty upon a leader found guilty of misconduct in office exhaustive to a Leadership Tribunal to the exclusion of any other power or authority in any other law?

(b) Are the penalties solely open to a Leadership Tribunal to impose upon a Leader found guilty of misconduct in office exclusive and exhaustive vis-à-vis any other law that may provide for the same?

2. If the answer to question 1 is in the affirmative, is Section 12(f) of the Independent Consumer and Competition Commission Act (ICCC Act) to the extent that it provides a penalty for a leader (Commissioner of the ICCC) found guilty of misconduct in office, inconsistent with Sections 28(1)(g)(ii) and 28(1A) of the Constitution and Section 27(5) of the Organic Law on Duties and Responsibilities of Leadership, thereby rendering it unconstitutional, invalid and ineffective?

3. On a proper interpretation and application of Sections 28(1)(g)(ii) and 28(1A) of the Constitution and Section 27(5) OLDRL:

(a) Has Dr. Billy Manoka, having been found guilty of misconduct in office by this Leadership Tribunal on 16th April 2014, ceased to be the Commissioner of the Independent Consumer and Competition Commission by virtue of Section 12(f) of the ICCC Act?

(b) If the answer to 3(a) (immediately above) is in the affirmative, is Dr. Manoka thus no longer a "leader" under Section 26(1)(g) of the Constitution and therefore would no longer be subjected to further prosecution under the Organic Law on Duties and Responsibilities of Leadership, i.e. this Leadership Tribunal has now been functus officio by virtue of Section 12(f) of the Independent Consumer and Competition Commission Act?

17. This Tribunal is of the view that, the questions posed above raise issues of Constitutional interpretation. Original interpretive jurisdiction on any provisions of the Constitution is vested in the Supreme Court. This is clear from Section 18 of the Constitution. It states:

"Original interpretive jurisdiction of the Supreme Court.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate."

18. All members of this Tribunal are unanimous in its view that, all provisions of the Constitution and all Acts of the Parliament must be given their fair and liberal meaning as intended by the legislators.

19. Legislative power of the people of Papua New Guinea is vested in the Parliament subject to the Constitution, see s.109 (1) of the Constitution: Singorom v Kalaut [1985] PNGLR 238. (See also cases of The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, Constitutional Reference No.1 of 1977 [1977] PNGLR 362.

20. The Tribunal finds that questions earlier posed do actually raise factual issues in relation to the issue of whether as from 16th April 2014 when Dr. Billy Manoka pleaded guilty to the three charges of misconduct in office, he was by that date already disqualified to hold the office as the Commissioner for the Independent Consumer and Competition Commission.

21. It is our unanimous view that section 12 (f) of the ICCC Act would seem to contradict section 28(1) (g) (i) (ii), 28 (1A) of the Constitution and s. 27(5) of the Organic Law on the Duties and Responsibilities of Leadership. The tribunal is of the opinion that, the decision to dismiss or disqualify a "leader" from holding a public office should be left to the independent tribunal to investigate and determine any alleged or suspected cases of misconduct in office and depending on its findings, may then recommend to an appropriate appointing authority that, that the leader be dismissed from the office or recommend any other penalties under s.28 (1A) of the Constitution.

22. We arrived at the above conclusion because the wording of s.12 (f) of the ICCC Act if accepted as it is, why refer Dr. Manoka to this tribunal since he is no longer the Commissioner for the Independent Consumer and Competition Commission. We quote s.12 of the ICCC Act which states:

"Disqualification from Office.

A person is not qualified to be, or to remain, a member of the Commission if he –

(a) a member, or candidate for election as a member, of the National Parliament, a member of a Provincial Government or a member of a Local-Level Government or a Local Level Government Special Purposes Authority; or
(b) an office-holder or candidate for election as an office-holder, in a registered political part; or
(c) an undischarged bankrupt or insolvent; or
(d) of unsound mind within the meaning of any law relating to the protection of the person and property of persons of unsound mind; or
(e) under sentence of death or imprisonment or has previously been sentenced to death or a term of imprisonment; or
(f) found guilty of misconduct in office under the Organic Law of the Duties and Responsibilities of Leadership."(Emphasis added).

23. As we have pointed out, Dr. Manoka pleaded guilty before this Leadership Tribunal and after reading the facts of the three allegations we were satisfied about his guilt and formally confirmed his guilty plea. By virtue of s.12 (f) of the ICCC Act, Dr. Billy Manoka had ceased to be the Commissioner of the ICCC. Why refer Dr. Manoka to the Leadership Tribunal when he is no longer the Commissioner.

24. The Leadership Tribunal now refers the questions posed in the proposed Reference to the Supreme Court. We order that this proceeding be stayed until the Supreme Court gives its opinion on the questions raised. A copy of the Reference will be appended to this judgment after it has been filed.
___________________________________________________________
Public Prosecutor: Lawyer for the State
Henaos Lawyers: Lawyer for the Leader