Manoka, In re In re Organic Law on Duties and Responsibilities of Leadership [2014] PGLT 2; N5657(LT) (2 July 2014)

N5657 (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: 2nd & 4th July 2014

CONSTITUTIONAL LAW – Leadership Code – Misconduct in office – Failure to submit annual statements to the Ombudsman Commission on three consecutive periods – Breach of Constitutional responsibilities – Section 27 (5) (a) OLDRL & Section 28(1A) of the Constitution.

LEADERSHIP TRIBUNAL – Application to withdraw the Supreme Court Reference SCC (OS) No. 3 of 2014 – Issues contained in the Reference – Whether 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? – Section 18(2)

CONSTITUTIONAL INTERPRETATION – Matters for consideration – Application granted.

Cases cited:

Opai Kunagel v The State [1991] PNGLR 1
Ando Kenene v Gabriel Samson, Alois Gabour & George Tapu [1983] PNGLR 179
Avona v The State [1986] PNGLR 148

Counsel:

Mr. P. Kaluwin, the Public Prosecutor, Counsel assisting the Tribunal
Mr. H. Henao, for the Leader

4th July, 2014

Preliminaries

1. THE TRIBUNAL: The hearing of the allegations against Dr. Billy Manoka, Commissioner for Independent Consumer Competition Commission commenced on 24th March 2014. When the charges on the five allegations were formally put to Dr. Manoka (the leader) pleaded not guilty through his former lawyer, Mr. Sweeney, QC.

2. The tribunal resumed on 16th April. On this date, Mr. Henoa announced his appearance for the leader. 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 pleads guilty to the three charges on failure to submit his annual statements to the Ombudsman Commission.

3. The tribunal adjourned to 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. The three remaining charges all concern the leader's failure to submit his annual statements for three consecutive periods from 17.4.2007 – 16.4.2008, 17.4.2008 – 16.4.2009, 17.4.2009 – 16.4.2010.

4. The tribunal 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.

5. When the Tribunal resumed on 17.4.2014, Mr. Henao lawyer for the leader and Mr. Kupmain representing the Public Prosecutor made submissions on the proposed Constitutional Reference pursuant to Section 18(2) of the Constitution. Both counsels 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 dismissal of the leader under s.12 (f) of the Independent Consumer and Competition Act 2002.

6. There were three Constitutional issues raised by Mr. Henao. Those issues relate to the interpretation of Sections 28 (1) (g) (ii) & 28(1A) of the Constitution and Section 27(5) of the OLDRL.

7. The questions posed were:

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?

8. On 12th May 2014, the three questions were referred to the Supreme Court (See Reference No. SCC (OS) No.3 of 2014). Since then the Reference has not been given a hearing date.

Application to withdraw the Reference
2.7.2014

9. When the tribunal reconvened on 2nd July 2014, counsels announced a new twist on the status of the Reference. Mr. Henao, counsel for the leader made submission asking the Tribunal to withdraw its Supreme Court Reference.

10. Reasons advanced by Mr. Henao which, Mr. Kaluwin agreed to are that, since Section 12 (f) of the Independent Consumer and Competition Commission Act has been amended by the Parliament in May this year, and certified on 22nd May 2014, it is no longer an issue on the leader's case which he had pleaded guilty to. (See Gazette No. 6 of 2014).

11. On the issue of what would be the applicable law on the status of the three cases which the leader has pleaded guilty to and which this Tribunal had stayed counsels referred to Section 11 of the Criminal Code which states what happens where there is change of any laws. This Section states:

"11. Effect of change in law.

(1) A person cannot be punished for doing or omitting to do an act unless –

• (a) The act or omission constituted an offence under the law in force when it occurred; and
  
• (b) Doing or omitting to the act under the same circumstances would constitute an offence under the law in force at the time when he is charged with the offence.
  

(2) If the law in force when the act or omission occurred differs from that in force at the time of conviction, the offender cannot be punished to any greater extent than was authorized by the former law, or to any greater extent than is authorized by the latter law."

12. Mr. Kaluwin submitted that, the amendment to Section 12 (f) of the Independent Consumer and Competition Commission Act does not affect the leader's case and referred the tribunal to Section 37(7) of the Constitution. This Section reads:

"No person shall be convicted of an offence on account of any act that did not, at the time that it took place, constitute an offence, and no penalty shall be imposed for an offence that is more severe in degree or description than the maximum penalty that might have been imposed at the time when it was committed."

13. Counsel submitted that Section 11 of the Criminal Code and Section 37(7) of the Constitution have the same effect and referred to the case of Opai Kunagel v The State [1991] PNGLR 1 where the Tribunal in that case said that a tribunal is not a criminal proceeding and this tribunal should accept Mr. Henao's submission to go ahead and hear submissions on the penalty. (See also the case of Ando Kenene v Gabriel Samson, Alois Gabour & George Tapu [1983] PNGLR 179).

14. We agree with submissions by both counsels that a leadership tribunal proceeding is not a criminal proceedings. The tribunal's view on the effect of Section 11(2) of the Criminal Code is that, if the punishment to which a person would be subjected to under the former law is greater than that to which a person would be punished under the new law, then the punishment under the new amended law should apply. To give effect to s.11(2) of the Criminal Code, one of the principles set in Avona v The State [1986] PNGLR 148 is that, for the proper meaning of s.11(2) of the Code, addition of the words "whichever is the lesser" must be or should be implied.

15. The amended provision in s.12 (f) of the ICCC Act would be interpreted to mean that dismissal from the Office of the Independent Consumer and Competition Commission would only occur when the Commissioner has been found guilty of misconduct in office and where he or she is recommended for dismissal by a leadership tribunal. We quote the whole provision (s.12 ICCC Act) to avoid distortion with emphasis added to the relevant Subsection with the amendment inserted in close brackets.

"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 (and recommended for dismissal) under the Organic Law of the Duties and Responsibilities of Leadership."(Emphasis added).

16. On this application, there are two issues raised by counsels:

1. Should the reference by the tribunal to the Supreme Court continue due to the amendment to s.12 (f) of the ICCC Act?
   
2. Whether s.12 (f) ICCC Act as amended have any effect on the leader given that the misconduct was committed prior to that amendment.
   

17. We are of the view that, even if there was no Constitutional Reference arising from s.12 (f) ICCC Act, the tribunal would still have the power to decide on penalties as it has discretion to decide penalties pursuant to Section 28 (1A) of the Constitution. This Section states:

""(1A)An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that—

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and

(b) public policy and the public good do not require dismissal, it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

(2) Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation."

18. In support of the view reached by this tribunal, we also quote Section 27 (5) (a) & (b) of the Organic Law on Duties and Responsibilities of Leadership. It states:

""(5) 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 public policy and the public good do not require dismissal, 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 the Parliament be imposed.

19. Any misconduct in office allegations that come before any tribunal and the issues of penalties will be entirely dependent on whether a case involves serious culpability or not and whether public policy and the public good require or do not require dismissal.

20. So on the current allegations, what is now remaining to be done is if the tribunal rules against the application, it means the matter will be prolonged. There is a saying "justice delayed is justice denied". It is for the foregoing reasons that the tribunal is of a collective view that, the leader has pleaded guilty and the case should no longer be prolonged.

21. We grant the application to withdraw the Reference and lift the stay orders. We make the following orders:

1. The stay order of this tribunal dated 12th May 2014 be now set aside.
2. The Supreme Court Reference referred on the above date shall now be withdrawn.
3. The Tribunal directs that, counsels shall now address the tribunal on penalty.

________________________________________________________________

The Public Prosecutor: Lawyer Assisting the Tribunal.
Henao Lawyers: Lawyer for the Leader.