State v Ramoi (No 1) [1990] PGNC 124; [1990] PNGLR 133; N847 (27 March 1990)

N847

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

THE STATE

V

GABRIEL RAMOI (NO 1)

Waigani
Brown J

27 March 1990

STATE SERVICES - Ombudsman Commission - Leadership Code - Investigation into misconduct in office - Summons to produce documents and furnish information - Summons to "any person" - Includes person under investigation - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), s 21(1).

CONSTITUTIONAL LAW - Leadership Code - Misconduct in office - Investigation by Ombudsman Commission - Summons to produce documents and furnish information - Summons to "any person" - Includes person under investigation - Organic Law on the Duties and Responsibilities of Leadership (Ch No 1), s 21(l).

The Organic Law on the Duties and Responsibilities of Leadership (Ch No 1) (the Organic Law), s 21, provides that the Ombudsman Commission or any other authority may "require any person who in its opinion is able to give any information relating to any alleged or suspected misconduct in office by a person to whom this law applies who is being investigated by the [Ombudsman] Commission" to give evidence or produce relevant material. The Constitution, s 26(c), renders the Organic Law applicable to all Members of the Parliament.

Held:

A summons under s 21 of the Organic Law may be addressed to "any person" including a person subject to the Organic Law and notwithstanding that that person is incidentally being investigated by the Ombudsman Commission or other authority.

Cases Cited

The following case is the only case cited in the judgment:

PLAR No 1 of 1980 [1980] PNGLR 326.

Preliminary application on validity of summons
In a preliminary application the lawyer for a person subject to investigation under the Leadership Code made a submission on the validity of a summons under s 21 of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1) which had been served upon him.

Counsel:

C Manek, for the State.
K V Kapa, for the accused.

27 March 1990

BROWN J.: The witness to whom a summons has been directed under s 21 of the Organic Law on the Duties and Responsibilities of Leadership (Ch No 1) challenges its validity on the basis that he was at the relevant time, a Member of the National Parliament and consequently not a person to whom such a summons might be addressed. Mr Kapa, for the defendant, argues that the definition section of that Organic Law provides that Mr Gabriel Ramoi is "a person to whom that law applies" and consequently cannot be included in the general phraseology "any person", at the commencement of s 21. Mr Gabriel Ramoi is such a person specified in s 26 of the Constitution dealing with the application of Division 2 (Leadership Code), which relevantly provides: "26(1) The provisions of this Division apply to and in relation to — ... (c) all other members of the Parliament; and ...."

The summons was in the following form:

"Pursuant to s 21 of the Organic Law on the Duties and Responsibilities of Leadership, you are hereby required to appear at the office of the Ombudsman Commission situated on the first floor of the building complex known as the 'Garden City’ in Angau Drive, Section 18 Allotment 4, Boroko on Wednesday the 11th day of January 1989, at 9.00 am to given evidence in a matter relating to:

Alleged or suspected cases of misconduct in office under the Leadership Code and the Organic Laws on the Duties and Responsibilities of Leadership in general and matters relating to your affairs as a Leader pursuant to s 26 of the Constitution.

You are further required to bring with you and produce the following documents you have in your control or possession:

(a) All bank statements, cheque butts and deposit slips from 1 January 1987 to 30 November 1988 in respect of every account whether personal or business in and outside Papua New Guinea in which you, your spouse(s) or children had an interest either directly or indirectly;

(b) All Financial records including cash books, ledgers, share register books and minute books in respect of all businesses whether corporate or unincorporate in which you, your spouse(s) or children had any controlling interest either directly or indirectly for the period 1 January 1984 to 30 November 1988;

(c) All records, correspondence and details of all transactions relating to every project sponsored by you out of Public Funds including the National Development Fund since 1 January 1986 to 30 November 1988; and

(d) All personal passports current and old, held by you and your wife since 1982."

Mr Kapa bases his argument on the tenuous submission that, because of the break as it were in the sentence structure of the section, the legislature’s intention was that any person other than a person to whom this law applies may be required to furnish information and produce documents to the Commission.

He also referred me to s 109(4) (and the Schedule at 1.22 and 1.52) of the Constitution to assist with this interpretation.

I see from reading the commentary at 219 of the Annotated Constitution of Papua New Guinea, Wilson J, in the case of PLAR No 1 of 1980 [1980] PNGLR 326 at 334ff, explained why a more liberal interpretation of legislative enactments is appropriate instead of perhaps a literal interpretation which sometimes results in a nonsense being made of provisions in a statute.

But quite frankly I do not see any difficulty in interpreting the provisions of s 21 even without supporting argument about "the object to be achieved" by the legislation or by looking at the overall functions of the Commission.

The section, excepting the introductory part, says:

"(1) ... the Commission or any other authority may from time to time require any person who in its opinion is able to give any information relating to any alleged or suspected misconduct in office by a person to whom this law applies that is being investigated by the Commission or any other authority to furnish to it that information and to produce any documents, papers or things that in the opinion of the Commission or other authority relate to any matter being investigated by it and that may be in the position or control of that person."

The verb "require" predicates the words that follow, "any person"; it does not relate to the words "by a person to whom this law applies" which occur later on in the sentence. To read the sentence otherwise would be to not give the wording its natural meaning. I find the section has as an object, to furnish the Commission with information. The subject of the sentence is "any person", not as Mr Kapa would have it, "any person other than one subject to the Leadership Code".

The alleged misconduct in office is "by a person to whom this law applies". Consequently that phrase is not the predicate of "require". There is no need for me to consider the other legal argument of counsel on possible alternate meanings or inquire into the objects of the Ombudsman Commission or the Organic Law.

I find the summons validly directed to Mr Gabriel Ramoi pursuant to s 21(1) and further on its face it appears to require production of documents and things relating to the matter in issue.

Summons ruled valid

_______________

Lawyer for the State: K Bona, Public Prosecutor.
Lawyers for the accused: K V Kapa, Kei Vuatha Kapa & Associates, Lawyers.