Nape v Geno [2009] PGNC 96; N3691 (28 July 2009)

N3691

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS NO. 157 OF 2008

BETWEEN

HON. JEFFERY NAPE, M.P. SPEAKER OF THE NATIONAL PARLIAMENT OF PAPUA NEW GUINEA
First Plaintiff

AND:

THE NATIONAL PARLIAMENT OF PAPUA NEW GUINEA
Second Plaintiff

AND:

ILA GENO, PHOEBE SANGETARI AND JOHN NERO as THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
First Defendant

AND:

THE OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA
Second Defendant

Waigani: Kandakasi, J.
2009: 18th March
28th July

OMBUDSMAN COMMISSION – Ombudsman Commission’s power to require information and production of documents - Summons served on Clerk of Parliament for production of certain documents and information – Speaker of National Parliament and Parliament refusing to - Claim of Parliamentary privilege – Whether information and documents relating to procurement and supply of goods and services to Parliament covered by Parliamentary Privileges? – Ombudsman Commission's power to require information and documents unlimited except only as provided for in the Organic Law on Duties and Responsibilities of Leadership – Parliamentary Privilege applies only to information or documents given in Parliament and or a Parliamentary Committee – Sections 26 and 219 Constitution – Sections 15, 17, 20 – 22 Organic Law on Duties and Responsibilities of Leadership - Sections 10 and 11 Parliament Powers and Privileges .

PRACTICE & PROCEDURE - Cause of action – Party seeking relief against clear statutory duties and responsibility - Failure to demonstrate meritorious issue or case – Effect of – No reasonable cause of action disclosed – Action abuse of process of Court – Proceedings dismissed – O.12 r.40 National Court Rules.

Papua New Guinean Cases Cited:

Dan Salmon Kakaraya v The Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2003) N2478.
Philip Takori & Ors v. The Independent State of Papua New Guinea & Ors (2008) SC905.
Telikom (PNG) Ltd v. Independent Consumer and Competition Commission and Digicel (PNG) Ltd (2008) SC906

Counsel:

V. Narokobi, for the Applicant/Defendants
J. Kusip, for the Plaintiff/Respondents

28th July, 2009

1. KANDAKASI J: The Ombudsman Commission is applying for a dismissal of these proceedings. That is on the basis that the proceedings do not disclose a reasonable cause of action and thus amount to an abuse of the process of the Court within the meaning of O.12 r.40 of the National Court Rules. The Commission says, that is the case because Honourable Jeffery Nape, Speaker of Parliament and the National Parliament are seeking relieves that are against their clear obligation to comply with its requirements for the provision of information and documents concerning the Minutes of the National Parliament’s Supply and Tenders Board meetings and minutes and decisions regarding the supply and installation of standby generator sets for the National Parliament. The Speaker and the National Parliament are claiming privilege from production of the information and or documents by virtue of sections 10 and 11 of the Parliamentary Powers and Privileges Act (chap), which the Commission does not apply.

Issue for Determination

2. Clearly, there is one main issue for this Court to determine and that is this. Are the decisions and the Minutes of the National Parliament’s Supply and Tenders Board and other documents immune from production or inspection by the Commission? Answer to that issue will help resolve the issue of whether these proceedings disclose a reasonable cause of action or it fails to do so and is thus an abuse of the process of the Court. There are a number of subsidiary issues which I will make mention and deal with as we proceed.
   

Background and Relevant Facts

3. But first, what is the background leading to these proceedings and the issues before the Court? In March 2008, the Commission commenced investigations into the supply and installation of standby generator sets for the National Parliament. For the purposes of those investigations, the Commission served a summons on the Clerk of Parliament requiring the production of certain documents. That included amongst others, the relevant meetings minutes and decision of the National Parliament’s Supply and Tenders Board in relation to the engagement of a technical advisor and the supply and installation of standby generator sets. The Speaker took the view that the documents sought by the Commission were confidential and privileged under ss.10 and 11 of the Parliamentary Powers and Privileges Act 1964. Proceeding on that basis, the Speaker filed these proceedings on 2nd April 2008. Later on, the Speaker filed a Supreme Court reference seeking answers to questions of whether the Speaker and the National Parliament were subject to the investigatory powers of the Commission. However, the Speaker subsequently withdrew the reference on 7th November 2008. That left these proceedings to be heard and determined. These proceedings effectively seeks to nullify the summons served on the Clerk of Parliament and prevent the Commission from carrying out its powers and functions under the Organic Law on the Duties and Responsibilities of Leaders.
   
4. After having filed these proceedings, the Speaker did not take any meaningful step to have the proceedings heard and determined without unnecessary delay. On 7th November 2008, the Commission filed a motion seeking to dismiss these proceedings for a failure to disclose a reasonable cause of action and for an abuse of the process of the Court. That motion did not proceed on the misapprehension that, the Constitutional Reference by the Speaker was still on foot and that ought to be dealt with first. On discovering however that, that reference had been withdrawn, the Commission decided to pursue its motion.
   

Jurisdiction of the Commission

5. Broadly speaking, this case concerns the question of whether the powers and functions or jurisdiction of the Commission cover the Speaker of Parliament and the National Parliament. Section 26 of the Constitution specifies the persons who are subject to the Commission’s investigatory powers under the Organic Law on Duties and Responsibilities of Leadership. This is affirmed by the definition of the phrase "person to whom this Law applies" in the Organic Law to mean "the persons specified in Section 26 (application of Division 2) of the Constitution".
   
6. Section 26 provides a list of persons to whom the Organic Law on Duties and Responsibilities of Leadership applies. This starts with the Prime Minister at the very top followed by his Deputy and other Ministers of the State, the Leader and Deputy Leader of the Opposition and all other members of the Parliament. I note that, there is no specific mention of the Speaker of Parliament and the National Parliament. However, subsection (2) says, the Leadership requirements apply "not only in the office referred to in ... subsection [1] but also in any other office or position that he holds under any law by virtue of that office." This means in my view that, the Speaker is covered by the provisions of the Organic Law on Duties and Responsibilities of Leadership to the extent that, he holds the position of the Speaker of Parliament because he is first a Member of Parliament.
   
7. This is a position that is strengthened and covered by the provisions of s.219 (1) of the Constitution, which provides as to the function of the Commission in these terms:
   

"(1) Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are—

(a) to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—

(i) any State Service or provincial service, or a member of any such service; or

(ii) any other governmental body, or an officer or employee of a governmental body;

(iii) any local government body or an officer or employee of any such body; or

(iv) any other body set up by statute—

(A) that is wholly or mainly supported out of public moneys of Papua New Guinea; or

(B) all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,

or an officer or employee of any such body; ...

(c) to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and

(d) any functions conferred on it under Division III.2 (leadership code); and

(e) any other functions conferred upon it by or under an Organic Law."

8. On the strength of this provision, it has been held that organizations like the Mineral Resources Development Corporation,[1] although having an appearance of private entity, are public authorities for the purposes of the Commission having jurisdiction over such organizations. The National Parliament is the highest public authority in the land headed by the Speaker of Parliament as its political head. Both the Speaker and the National Parliament have their origin in the Constitution and are funded from public finances. There can therefore be no argument that, both the Speaker and the Parliament are public authorities and or institutions and are thus subject to the investigatory powers of the Commission.
   
9. The role and investigatory powers of the Commission under our Constitutional scheme is necessary in a democratic society such as ours. The powers and functions of the Commission are thus wide and cover all arms and instrumentalities of the State and other public authorities and institutions that are either wholly or substantially funded by public funds. The Commission has wider powers to carry out its functions, including the power to require the production of documents[2] and other evidence that are relevant and necessary for any matter under its investigation. The fact that we have a fully functional Commission, such as ours, ensures transparency, integrity and accountability in the conducts, functions and affairs of the various arms and instrumentalities of the State or all public authorities and institutions. The integrity and credibility of public authorities and institutions are dependant on the integrity and credibility of the people that are behind them. Such integrity and credibility are usually maintained by a ready allowance of appropriate investigations and inquiries by the relevant and appropriate lawful authorities who are charged with the duties and responsibilities to do so and the truth or otherwise of any allegations raised appropriately addressed and resolved. Hence, a person with integrity and credibility would readily welcome appropriate investigations and support them when serious allegations of misconduct in office or misuse of public funds and public offices are made. This, they will do readily because they will have nothing to hide. Anyone who is opposed to the investigatory powers of the Commission without any good legal foundation would in fact be opposed to integrity and credibility through transparency and accountability. In most truly transparent democratic societies, people in high offices readily step down/aside or even resign to allow for proper investigations following allegation of misconduct against them. Unfortunately, in our country, many leaders who are implicated in many improper conducts continue to hold office and resist appropriate and proper investigations.
   
10. In this case, issues have arisen over the proper supply and installation of standby generator sets for the National Parliament using public funds. In so far as that issue is concerned and generally in all cases, the National Parliament’s integrity and credibility is dependant on the integrity and credibility of those who constitute it and those who are responsible for its administrations under the political leadership of the Speaker. The National Parliament, its constituents, the Speaker of the National Parliament and those in its services should be in the forefront of supporting the work of the Commission and lead by example by readily allowing for appropriate investigations when serious allegations are aired. It is the most necessary and responsible thing to do, given the position the National Parliament, its constituents, the Speaker of Parliament and those in its service have in our country. Only through investigations can the truth be known and any questions that suggest any wrong doing and that goes against the integrity and credibility of such higher institutions and authorities be appropriately resolved. If no such investigations are carried out and the truth remains unknown, an avenue is thus created for fair and reasonable minded people to conclude in favour of there being merits in the allegations.
    
11. Here, after the allegations over proper use of public funds were raised, the Commission served a summons under Section 21 of the Organic Law on Duties and Responsibilities of Leadership requiring the production of certain documents relating to the issue. Honorable Nape and the National Parliament under his leadership declined or refused to provide the documents required by the Commission claiming that, those documents are confidential and privileged from production, by virtue of ss. 10 and 11 of the Parliamentary Powers and Privileges Act (Chp. 24). Proceeding on that basis, Honourable Nape took out these proceedings and the now withdrawn Supreme Court reference to effectively prevent the Commission from carrying out its functions. This gave rise to the main issue before this Court, which is, are the National Parliament and the Speaker immune from producing documents required for production by the Ombudsman Commission? We turn to a consideration of that issue now.
    

Are the National Parliament and the Speaker immune from producing documents required for production by the Ombudsman Commission?

12. I have no difficulty in answering this question in the negative for four reasons. First, as we have noted above, the function of the Commission is "to investigate, on its own initiative or on complaint by a person affected" by any conduct of a public service or authority or an employee of a public service or authority that is wholly or mainly supported out of public moneys. The conduct complaint of or under investigation may constitute prohibited discriminatory practices, misconduct in office in terms of the Leadership Code or such other duties and responsibilities that may be imposed by law on a person in such employment or covered by the Leadership Code.
    
13. Appreciating that some of the matters under investigation may be highly confidential and may be inappropriate to make public, Section 20 of the Organic Law on Duties and Responsibilities of Leadership provides in clear terms that the "investigations of the Commission shall be private". Proceeding on the same vain, the same provision provides against any hearing except only for the person, the subject of its investigation. Such hearings are left to take place on referral to the appropriate authorities, in particular the Public Prosecutor if the investigations demonstrate a case of misconduct. This in my view gives sufficient basis in terms of retaining any confidentiality and protection against any disclosure of documents and other evidence given and or obtained by the Commission in the cause of a particular investigation.
    
14. Section 21, of the Organic Law on Duties and Responsibilities of Leadership under the cover of privacy, pertinently provides:
    

"21. Production of documents, etc.

(1) Subject to the provisions of this section and of Section 22, the Commission ... 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 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 possession or control of that person.

(2) Subsection (1) applies whether or not—

(a) the person is an officer, employee or member of any State Service, provincial service, local government body or statutory body; and

(b) the documents, papers or things referred to in that subsection are in the custody or under the control of any State Service, provincial service, local government body or statutory body.

(3) The Commission ... may, by instrument in writing, summon any person ... who in its opinion is able to give any information relating to any matter that is being investigated by the Commission or other authority to attend the Commission or other authority at a time and place specified in the summons for examination by it on oath.

(4) ...

(5) ...

(6) Except on the trial of any person for perjury in respect of his sworn testimony, no statement made or answer given by that or any other person in the course of any inquiry by or any proceedings before the Commission or other authority is admissible in evidence against any person in any court or at any inquiry or any other proceedings, and no evidence in respect of proceedings before the Commission or other authority shall be given against any person.

(7) ..."

(Underlying supplied)

15. This provision clearly provides the Commission with power to require the furnishing to it "information ... [and] any documents, papers or things that, in the opinion of the Commission ... relate to any matter being investigated by it and that may be in the possession or control" of a person who is requested to provide them. Subsection (2) makes it clear that this provision applies without any exception to all information in the custody of public institutions or authorities and servants and or agents.
    
16. The only exception against the Commission’s wide powers to require information and the production of documents is as is provided for in s. 22 of the Organic Law on Duties and Responsibilities of Leadership. This provision reads:
    

"22. Disclosure of certain matters not to be required.

(1) Where the Prime Minister, after consultation with the Chief Ombudsman, certifies that the giving of any information or the answering of any question or the production of any documents or papers or things is likely to—

(a) prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea's relations with the Government of any other country or with any international organization) or the investigation or detection of offences; or

(b) involve the disclosure of proceedings, deliberations or decisions of the National Executive Council, or of any Committee of that Council which, the Prime Minister certifies, relate to matters of a secret or confidential nature and the disclosure of which would be injurious to the public interest,

the Commission shall not require the information or answer to be given or, as the case may be, the document, paper or thing to be produced.

(2) Subject to Subsection (1), any Law that authorizes or requires the withholding of any document, paper or thing, or the refusal to answer any question, on the ground that the disclosure of the document, paper or thing or the answering of the question would be injurious to the public interest does not apply in respect of any investigation by or proceedings before the Commission.

(Underlining supplied)

17. This provision is very clear so much so that no art of interpretation is required. It simply says that unless, the Prime Minister’s certification has been secured in accordance with Section 22 (2) of the Organic Law on Duties and Responsibilities of Leadership, no law or any person has any authority to refuse to answer the Commission’s questions or meet the Commission’s requirements to produce any documents, paper or thing. Honourable Nape and the Parliament through him are not coming under s.22 which is the only provision that can come in the way of the Ombudsman Commission’s investigatory power.
    
18. However, as noted, Honourable Nape and the Parliament are relying upon ss.10 and 11 of the Parliamentary Powers and Privileges Act (Chp. 24) to resist the summons served on the Clerk of Parliament by the Commission under Section 21 of the Organic Law on Duties and Responsibilities of Leadership. Going by the hierarchy of laws in our country under s.9 of the Constitution, the provisions of the Act cannot override the requirements of the Organic Law which is more superior. That would be the way to go if there was an apparent conflict. In this case, there is no conflict. The provisions of s.22 (2) Organic Law on Duties and Responsibilities of Leadership make it clear that any:
    

"Law that authorizes or requires the withholding of any document, paper or thing, or the refusal to answer any question, on the ground that the disclosure of the document, paper or thing or the answering of the question would be injurious to the public interest does not apply in respect of any investigation by or proceedings before the Commission."

19. Sections 10 and 11 of the Parliamentary Powers and Privileges Act (Chp. 24) read as follows:
    

"10. Unauthorized disclosure of parliamentary proceedings.

A member, officer or employee, or a former member, officer or employee, of the Parliament who, except with the consent of the Speaker, discloses to any court or tribunal, or to any person who has a duty to inquire into or investigate any matter, the contents of—

(a) any evidence given before the Parliament or a committee of the Parliament; or

(b) a report of the debates and proceedings of the Parliament that has not been published with the authority of the Parliament; or

(c) a manuscript or document laid before the Parliament or a committee that has not been published with the authority of the Parliament,

is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding six months.

11. Disclosure of confidential information, etc.

An officer of the Parliament or Parliamentary adviser, or a former officer of the Parliament or Parliamentary adviser, who, except with the consent of the member concerned or of the Speaker, reveals to another person any confidential information or other matter given to him, in his capacity as such, by a member of the Parliament is guilty of an offence.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding six months."

20. Two things are apparent in these provisions which are also my second and third reasons for rejecting the Speaker and Parliament’s arguments. The first is, these provisions do not specifically provide the National Parliament or its Speaker with immunity from providing any information, document, paper or thing required by the Commission. It follows therefore that, these provisions do not run contrary to the provisions of ss.21 and 22 of the Organic Law on Duties and Responsibilities of Leadership. Hence, I am of the respectful view that, the obligation to answer any questions asked or any requirement for provision of any information, document, paper or thing by the Commission applies to the National Parliament and its Speaker without any exception except as provided for in s.22 of the Organic Law on Duties and Responsibilities of Leadership.
    
21. The second apparent thing about provisions is this. The provisions of ss.10 and 11 of the Parliamentary Powers and Privileges Act (Chap. 24) talk about and concern the disclosure of any information, documents or evidence given before the Parliament or a Parliamentary Committee of the Parliament or any such matters given to any officer of the Parliament or Parliamentary adviser, or a former officer of the Parliament or Parliamentary adviser. There is a general prohibition from any discloser of such material except with the permission of the Speaker or any member concerned.
    
22. There is no evidence before the Court that demonstrates or clearly establishes that the documents and information required by the Commission from the Clerk of Parliament are the kind of material covered by ss.10 and 11. There is no evidence whatsoever that the information and documents required for production in the Commission’s summons are materials that were given before the Parliament or a Parliamentary Committee.
    
23. The Parliamentary Powers and Privileges Act (Chp. 24) is there for a purpose. In a democratic system of government such as ours, it is necessary for Parliament to have the kind of privileges and protections that are provided for under the Act. In societies where there is a fully functional parliamentary democracy, Parliament with the support of its various specialized committees, and officers is the most highest place for check and balance in public administration and expenditure taking place. It is the members of Parliament that hold to account the government of the day and to raise issues and concerns over the decisions public authorities and institutions make including the proper use or otherwise of public funds and offices. Hence, those who provide Members of Parliament with the necessary information or evidence for that purpose need to be assured against any action in reprisals so they can come freely, without fear and provide such information as are within their knowledge or possession. This encourages members of the public to go to any Member of Parliament or a Parliamentary Committee and give any information concerning any misconduct, misadministration or any wrong doing that impact upon good governance and accountability so that they can be raised in Parliament. Hence, the protection provided, under ss.10 and 11 of the Parliamentary Powers and Privileges Act (Chp. 24) is thus necessary. If it were not for such protection, no one would go to members of the Parliament with any information or evidence of any wrong doing in public administration and expenditure.
    
24. It follows therefore that, the protection under the Parliamentary Powers and Privileges Act (Chp. 24) is not to conceal any wrong doing, be it criminal or not. That is why in my view, there is clearly no provision aimed at preventing the Commission from exercising its investigatory powers over Parliament following any allegation of misconduct in office, by the Speaker of Parliament or anyone in its employ or misuse of public funds or breach of the nation’s law. Hence, the relevant provisions of Organic Law on Duties and Responsibilities of Leadership apply without any exception, other than the ones it provides for.
    
25. That leads to my fourth and final reason for rejecting the Speaker and the Parliament’s arguments which is this. There is no evidence of the Prime Minister’s certificate under s.21 (1) of the Organic Law on Duties and Responsibilities of Leadership. Even if there was such a certificate, I cannot see how the kinds of information and documents required by the Commission would qualify as capable of prejudicing "the security, defence or international relations of Papua New Guinea ... or the investigation or detection of offences" or would be "injurious to the public interest" within the meaning of s.21.
    

Decision

26. In the end result, I find that, these proceedings do not raise any serious Constitutional issue. I also find that these proceedings do not raise any meritorious legal issue or present an arguable case. Instead, I find that, these proceedings seek relieves against clear statutory duties and responsibilities placed upon the Speaker of Parliament and the National Parliament. The issues presented by the Speaker and the Parliament require nothing more than a straight forward application of the relevant provisions of the various Organic Laws discussed in the foregoing and the clear provisions of Parliamentary Powers and Privileges Act (Chp. 24). Perhaps that is the reason for the Speaker and the Parliament withdrawing their Constitutional reference. Hence, I have no difficulty in finding that, no case has been made out or disclosed that demonstrates a meritorious cause of action to be pursued by the Speaker and the Parliament. Rather I find that, these proceedings fall nothing short of an abuse of the process of the Court to delay or otherwise frustrate the Constitutional powers and functions of the Commission being exercised in so far as the matters giving rise to these proceedings are concerned.

27. I remind myself of the principles governing applications for dismissal of proceedings for failure to disclose a reasonable cause of action or for abuse of the process of the Court as reiterated and restated by the most recent Supreme Court decision in the matter of Philip Takori & Ors v. The Independent State of Papua New Guinea & Ors.[3] As these and many authorities before it clearly show, it is settled law that, the Court must exercise care before upholding such an application. It is also settled law that, where a clear case of a failure to disclose any reasonable cause of action or there is an abuse of the process of the Court, the Court has an inherent power to dismiss the proceedings.
    
28. In the present case, I am satisfied that, this is a case in which the Court should exercise its summary jurisdiction powers to end these proceedings here because no reasonable cause of action is disclosed, as I have found above. It is also an appropriate case for this Court to exercise its summary jurisdiction for the proceedings amounting to an abuse of the process of the Court. The Court proceedings are there only for genuine and meritorious issues to be litigated and not merely to be used to avoid clear statutory duties and responsibilities or actions brought with the aim and intention to prevent a lawful authority from carrying its lawful powers, authority and function in democratic society. Where the process of the Court is being abused, as the other recent decision of the Supreme Court in Telikom (PNG) Ltd v. Independent Consumer and Competition Commission and Digicel (PNG) Ltd[4] made it clear, the Court has power to order dismissal of proceedings to prevent an abuse of its process.
    
29. For the foregoing reasons, I am minded to dismiss these proceedings and I so order with costs to the Ombudsman Commission.
    

____________________________________________________
Virgil Narokobi: In House Counsel to the Applicant/Defendants
Patterson Lawyers: Lawyers for the Plaintiff/Respondents.

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^[1] Dan Salmon Kakaraya v The Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2003) N2478.
^[2] See section 21 of the Organic Law on Duties and Responsibilities of Leadership.
^[3] (2008) SC905.
^[4] (2008) SC906.