Nilkare v Ombudsman Commission [1996] PGSC 2; SC498 (3 May 1996)

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SCA NO 53 OF 1995
BETWEEN:
JOHN MUA NILKARE - Appellant
And:
OMBUDSMAN COMMISSION - Respondent
Waigani

JUDICIAL REVIEW - Order 16 National Court Rules - Challenge to referral by the Ombudsman Commission for failure to comply with Organic Law on Ombudsman Commission, s 17 (1) - breach of natural justice - allegations of bias on the part of the Ombudsman Commission.

ORGANIC LAW - on Duties and Responsibilities of Leadership’s nature of the right to be notified and on opportunity to be heard under s. 20.

REMEDIAL ORDERS - Nature of the powers of the National and Supreme Courts - Relevant considerations.

AMET CJ: The Appellant John Mua Nilkare (the Appellant) is a member of the current National Parliament (1992 -1997). He was the Minister for Village Services and Provincial Affairs from 30 July 1992 to 30 August 1994.

As both a member of Parliament and a Minister of Government, he was subject to the Leadership Code provisions under the National Constitution and the Organic Law on the Duties and Responsibilities of Leadership - (OLDRL).

The Ombudsman Commission (the Commission) had conducted investigations into certain conduct of the Appellant during the tenure of his office as a Minister of Government. The Commission had not notified the Appellant that it intended to investigate allegations of misconduct in office against him.

After the Commission had carried out it’s investigation, it then gave notice to the Appellant pursuant to s. 20 (3) of the OLDRL by letter dated 8 June 1994 that he had the right to be heard in relation to certain allegations of misconduct in office which were enumerated in that notice letter.

The Appellant replied to this notice by letter dated 13 July 1994, generally denying all the allegations of misconduct. By letter dated 29 December, 1994, the Commission gave notice to the Appellant pursuant to s. 20 (2) of the OLDRL, that it intended to refer the allegations to the Public Prosecutor for prosecution before a Leadership Tribunal. This notice letter also then enumerated the allegations generally under the main categories under which they arose.

To this notice the Appellant responded through his lawyers by letter dated 25 January 1995, making comments and requests for detailed particulars in respect of the allegations. On 3 February 1995, the Commission advised the Appellant’s lawyers by letter of same date that it would be inappropriate for the Commission to respond to the requests for further details of the allegations, as the matter had already been referred to the Public Prosecutor.

On 15 February, 1995, the Appellant by his lawyers advised the Commission that he had forwarded a copy of the Commission letter of 3 February, 1995 to the Public Prosecutor, and gave notice to the Commission that he reserved his right under ss. 17 and 20 of the OLDRL and s. 17 of the Organic Law on the Ombudsman Commission ( OLOC), and the principles of natural justice.

Subsequently, a Leadership Tribunal was constituted at the request of the Public Prosecutor s. 27 (2) and (7) (e) OLDRL. On 1 June 1995 the appellant obtained leave in the National Court to apply for judicial review of the Commissions decision to refer the allegations to the Public Prosecutor for prosecution before a leadership tribunal. The proceedings of the tribunal was consequently stayed until the determination of the judicial review.

On 4 August 1994, the National Court dismissed the Appellant’s application for judicial review, declining to rule that the Commissions referral was invalid and found no cause to grant any of the other relief sought. It is from that decision that the Appellant now brings this appeal on various grounds.

I have read the opinion of Deputy Chief Justice Kapi and Justice Injia and I am content to adopt their fuller recitations of the facts and circumstances of this case and the judgement of the National Court appealed from. I propose to be brief, making some observations in principal and adding some remarks of my own in respect of several of the principal grounds of appeal.

This appeal raises some fundamental issues pertaining to the powers and functions and practices and procedures of the Commission pursuant to the Constitution, the OLOC and OLDRL. This is only inevitable in the ongoing developmental processes of the constitutional regime in these formative years of the nation. It is important therefore, in the interpretation and application processes of the relevant provisions of the Constitution and the subordinate enabling organic laws that the National Goals and Directive Principles embodied in the Preamble to the Constitution are not lost sight of or merely paid lip service to.

I believe that the Constitutional principles embodied in the Constitutional documents, including the Organic Laws, are living principles, the interpretation of which must be capable of yielding to developmental aspirations and not remain static.

The role of the Commission, it’s powers and functions, practices and procedures in the investigation of allegations of misconduct in office by leaders subject to the Leadership Code, are to be examined, with these general perspective in the forefront of our thinking.

I agree with the draft opinion of Deputy Chief Justice Kapi that leave should be granted in respect of grounds of appeal that require leave.

I should place on record for the first time my firm opinion that the legal regime that has been adopted that requires leave to be obtained to appeal to the Supreme Court against findings and conclusions of fact of the trial court is inappropriate to the circumstances of Papua New Guinea. It is not necessary to develop this in this case, but the primary basis for my view is the fact that there are no jury trials in our legal system, the judge is judge of fact and law and secondly more importantly is the fact that there is only one tier appellate structure in the superior court from the National to the Supreme Court. It offends against the right to a full review of findings of facts and law that an aggrieved appellant should be compelled to seek leave before appealing against findings of fact. The elaboration of this has to await another more suitable occasion, when the issue might be fully argued.

His Honour erred in law in holding that the Supreme Court’s decision in Karo’s case (Albert v Ombudsman Commission of Papua New Guinea SCA 89 of 1995) did not confirm that the respondent was under a duty to notify the appellant of it’s intention to investigate certain allegations against him.

It is not disputed that the Commission had not informed the Appellant that it intended to investigate certain allegations of misconduct in office against him under the Leadership Code before it embarked upon the investigation. In the National Court the Appellant had contended that the Commissions investigation were ultra vires and void from the outset, because it had failed to comply with the statutory requirement (ruled mandatory in Albert Karo v Ombudsman Commission of Papua New Guinea SCA 89 of 1995) that it inform the Appellant of it’s intention to undertake such an investigation into his conduct in office, pursuant to s. 17 of the OLOC.

Before investigating any matter within its jurisdiction, the Commission shall inform the responsible person of it’s intention to make the investigation.

The court had stated in Karo’s case that this was a mandatory obligation upon the Commission, to give notice to the person who’s conduct it is intended to investigate.

The Commission had submitted in the National court, relying on section 3 of the OLOC and section 3 of the OLDRL, that the Commission was under no duty to comply with section 17 (1) of the OLOC in leadership code investigations.

The trial judge concluded that the ruling in Karo’s case on the application of section 17 (1) OLOC was inconsistent with the qualifying provisions of s. 3 of the OLOC and s. 3 of OLDRL and distinguished the ruling on the basis that these provisions were not drawn to the Supreme Court’s attention, nor argued before it. His Honour concluded that the Commission was not obliged under section 17 (1) or any natural justice principles to notify the appellant of an intended investigation into his conduct. There was therefore no impropriety on the part of the Commission in this respect.

It was submitted for the Appellant that the decision in Karo’s case bound His Honour to hold that where the respondent acted ultra vires s. 17 (1) of the OLOC, it exceeded it’s jurisdiction.

The Commission submitted that the remarks of the court in Karo’s case were in any event obiter dictum only, and secondly the statement as to the application of s. 17 (1) was per incurium because it was made without consideration of all the relevant provisions of the Constitutional Laws in particular section 3 of the OLOC and s. 3 of the OLDRL.

I was a member of the court in the Karo case, as was the trial judge in this appeal Justice Sheehan. I am satisfied, upon reading His Honour’s judgement in relation to this aspect and on the submissions of the Commission, that the remarks of the court in relation to the application of section 17 (1) of the OLOC were per incurium and obiter dictum only. Quite clearly, on the facts of the Karo case the interpretation and application of section 17 (1) was not in issue. The provisions of s. 3 of OLOC and s. 3 of OLDRL were not addressed by Counsel nor referred to by the court. I am now satisfied upon fuller arguments that section 17 (1) of the OLOC does not apply to investigation under the OLDRL.

I am satisfied that the general principles of natural justice to give notice fairness and a right to be heard, is sufficiently enabled by s. 20 of the OLDRL. I accept and am satisfied also that the Commission has quite separate jurisdictional responsibilities under the two separate Organic Laws, the OLOC and the OLDRL. In the Karo case, whilst part of the investigation related to the responsibilities and jurisdiction under OLOC the Appellant Albert Karo was being investigated under the OLDRL and so s. 17 (1) of the OLOC did apply to him in respect of that investigation.

Consequently, I am satisfied that His Honour the trial judge in this case was not in error in concluding that he was not bound by that statement in the Karo case and ruling that the Commission was under no duty to notify the appellant of it’s intention to investigate certain allegations against him. This ground of appeal is therefore dismissed.

His Honour erred in fact and law in holding that the Respondent had not acted ultra vires because the Appellant had no right to have the “whole of the investigation file served on him” and that it was no part of the Appellant’s case that he had any such right.

I agree also that this ground of appeal is misconceived. If it was no part of the appellant’s case that he had the right to have the whole of the investigation file served on him pursuant to his right to be informed of the allegations made against him and the right to be given a hearing, then the fact that His Honour made such a statement that the Commission did not act ultra vires in not providing the whole investigation file to the appellant is of no consequence. It does not avail the appellant any relief even if His Honour made such a statement because it was not part of the Appellant’s case in any event.

The possible effect of this ground of appeal and the observations of the trial judge do raise on going questions and issues as to what might constitute sufficient compliance with the principles of natural justice, to give notice of allegations or complaints and to avail the person against whom the charges and allegations are made adequate opportunity to be given a hearing.

Complaint was made in the National Court that all necessary documents and particulars of the investigation such as were referred to in the Karo case were not fully furnished to the appellant in order that he make adequate reply to them in exercising his s. 20 (3) right under the OLDRL. The court in the Karo case said that the right to be heard:

“Can be facilitated quite satisfactory in writing as long as the person who’s conduct is being investigated is furnished all the necessary documents and particulars of the investigation and evidence, complaints and allegations that had been made in relation to his conduct that he needs to be informed of in order that his response or explanations is to be considered adequate.”

And His Honour in the judgement in this case concluded that that statement he believed set out a proper basis or a leader to be heard so as to enable him to formulate a defence or explanation.

The Commission has posed a number of practical suggestions as to how it could discharge it’s obligation under s. 20 (3) of the OLDRL. Section 20 obviously embodies the principles of natural justice as has been developed in the common law jurisdictions which we have adopted into the body of the Underlying Law of this country. There is no dispute that the Commission, as a preliminary independent, decision making body required to decide whether there is a prima facie case of misconduct in office is obliged to observe the rules of natural justice and conform with the duty imposed by s. 20 (3). I would adopt some of the suggestions made by the Commission in respect of some procedure in the following terms. It must be understood of course that these are by no means exclusive and exhaustive. Some variation and modification to these must necessarily be permitted, depending on the varying circumstances of each particular case. But I think as a general principle some of these are sufficiently developed in the body of judicial precedents from the common law jurisdictions that we have adopted and have relied upon in many cases under these general heading principles of natural justice. The requirements of the right to be heard could be deemed complied with if the following procedures were adopted:

1. Reasonable opportunity is given to the leader to respond, either in writing or in person before the Commission, if the leader so elects.

2. Particulars and clarification of the allegations ought to be given if the leader request the same in order that his right to be heard in respect of the allegations are to be considered adequate.

3. Any relevant documents are to be furnished to the leader if requested, to enable the leader to fully respond to the allegations.

It would not be appropriate to oblige the Commission to hand-over all documents concerning the leader at the time it gives notice of a right to be heard. By the same token, if there are particulars and documents which are relevant and vital to a fuller and better understanding of the nature of the allegations, by the leader, in order that his explanations thereto would be full and complete to enable the Commission to make the determination as to whether or not there is a prima facie case, then it is incumbent upon the Commission to ensure that the leader is fully aware of the existence of such materials and documents. If the leader requests copies of the same then they should be made available to him. It would not be appropriate for the Commission to withhold such information with the presumption that they should be used in the prosecution of the allegations before the Leadership Tribunal.

The Commission ought to be seen to be impartial and independent, without prejudice and preconception in it’s investigation decision and preliminary decision-making process at this juncture. Having conducted an investigation and obtained materials and preliminary evidence that might suggest the commission of misconduct in office, the Commission must be duty-bound, with a sense of fairness and impartiality, to put all relevant particulars and materials documentary or otherwise to the leader in order that his right to be heard is exercised meaningfully and fully. In my opinion, at this stage in the investigation and preliminary decision-making process the Commission must be presumed to be still impartial of mind and not having any prejudicial presumption and that it is now giving the accused leader the opportunity to be fully heard, with the realistic expectation and prospect that should his explanation be full and complete and satisfies the Commission that infact the allegations do not have any merit or that the leader‘s explanations have sufficiently demonstrated that no breach of leadership code provisions have occurred, then the leader ought to be entitled to be fully exonerated there and then.

This process and procedure ought to be seen to be analogous to the criminal procedure of the committal process where the committal court after examination of all the evidentiary material before it has the discretion to determine that there is no prima facie case to answer to commit the defendant to the National Court for trial and discharge the defendant forthwith.

The investigation of the Commission resulting in the right to be heard by the leader must in my view necessarily incorporate this principle of natural justice, that if the accused leader’s explanations are satisfactory and adequate to explain and put to rest the complaints and allegations then such a leader must be entitled to be exonerated and the matter put to rest and not proceed any further. Otherwise the right to be heard becomes meaningless and a formality only if the Commission has already formed a prejudiced opinion that in spite of what the leader might say, whether his explanations are satisfactory or otherwise he is going to be referred to the Public Prosecutor for prosecution before a Leadership Tribunal anyway. Such a perception and or attitude by the Commission would quite obviously be fatal to the valid exercise of this right by the leader and obligation to administer fairly his right by the Commission. For these reasons, any perception that the Commissions investigators and or the Commission has withheld vital information or documentation and not disclosed the same to the leader to enable him to fully exercise his right to be heard, would leave the Commission open to the criticism that it has usurped the functions of the Public Prosecutor in determining whether or not the leader should be referred before the appropriate Tribunal and the appropriate Tribunal’s function in determining whether or not the leader has committed misconduct in office.

The Commission, in my opinion is an independent investigative instrumentality of the people and it must conduct it’s investigation in an impartial and fair manner. Pursuant to the Constitution it only needs to be satisfied that there is a prima facie case that a leader has been guilty of misconduct in office, and for it to refer the matter to the Public Prosecutor for prosecution. It is not the Commissions function to determine that, in fact and law, the leader has been guilty of misconduct in office. It must therefore be very diligent in ensuring that it’s administration of the powers to investigate and duties to accord leaders, whose integrity is likely to be impugned, the correct procedures adopted and administered under the Constitutional provisions, are above reproach.

His Honour erred in fact and in law in holding that the Respondents referral to the Public Prosecutor contained no new charges; and that the Respondent was entitled to rely on unnotified charges “so long as they arose out of the same basic allegations”; in that the evidence before the court established that the referral did contain new charges; and the Respondent had no such right to refer unnotified matters to the Public Prosecutor.

The Appellant had submitted that he had provided conclusive evidence of five (5) fresh allegations which were not notified him in the original letter of notification dated 08 June 1994. A comparison of that original letter of notification with the referral to the Public Prosecutor dated 29th December 1994, confirmed that there were five (5) allegations which were completely new. The following five (5) allegations were submitted to be new:

(a) Beach of section 27 of the Constitution and section 13 of the OLDRL by failing to ensure that Henry Mokomo properly conducted himself in relation to road plant purchase of K200,000.00.

(b) Failure to ensure that Henry Mokomo properly conducted himself in relation to release of an additional K100,000.00.

(c) Apply rural Transport Development Program funds to unlawful purposes, including cash advance to Terry Takadol and other projects.

(d) Apply nineteen thousand eight hundred and sixty kina sixty six toea (K 19,860.66) of rural agriculture development funds to unlawful and improper purposes, including K590,090.39 to PTC and K8,000.00 to the KAY Community Group.

(e) Failure to declare share holdings of himself and his wife in a number of companies including five named corporations.

It was submitted that these were five (5) fresh and discrete allegations which was evidenced by the fact that the Commission particularised them as distinct allegations, each worthy of separate prosecution as instances of misconduct.

The Commission also submitted a tabular comparison between the alleged new allegations and the notice of the right to be heard dated 8th June 1994, to demonstrate that infact there was sufficient reference to and thus notification of the general nature of the allegations which were subsequently discreetly particularised in the referral document. The Commission again gave notice to the appellant pursuant to s. 20 (2) of the OLDRL by letter dated 29th December 1994 wherein these five (5) alleged new allegations were more specifically stated. It was submitted therefore, that His Honour the trial judge was correct in concluding that he could not say that any of the alleged new charges were new and unrelated to the prior allegations.

I have for my own part examined the allegations contained in the section 20 (3) notice letter dated 8th June 1994 with the referral notice and in particular the notice under section 20 (2) to the Appellant dated 29 December 1994, and find that only one of the five (5) new allegations is not given notice of. I am satisfied that counts 8, 12, 26 and 30 are sufficiently generally alluded to in the s. 20 (3) notice letter dated 8th June 1994.

For instance the counts 8 & 12 that relate to the conduct of Henry Mokomo relate generally to the counts relating to the minor transport program funds that are referred to under allegation 2 in the letter of 8th June 1994 in relation to the K200,000.00 & K100,000.00 related allegations. I am also satisfied that count 26 is sufficiently emanating from the count that relates to the allegation in respect of the K20,000.00 under the rural agricultural program funds which is referred to in the allegation contained in the notice letter dated 8th June 1994. Similarly, count 30 sufficiently emanates from the accounts that relate to Directorships & Shareholdings by the Appellant and his wife that are sufficiently referred to in the notice letter of 8th of June 1994.

I am therefore satisfied that the alleged new allegations are not new except for count 13. I am also in agreement that His Honour the trial judge did not need to have any evidence adduced before him in order to determine whether or not any of the alleged new charges contained in the referral document were infact new, all the necessary documentation were before him and that was all necessary to do a comparative examination of the original notification letter with the referral documents. In any event apart from count 13 I can not find that there was any error in the conclusions reached by His Honour.

His Honour erred in purporting to ‘balance’ the “emotive and sensationalist language” of the Respondents referral document against the “equally intemperate and unfounded allegations of malice” in that judgement on the issue of the Respondents bias and/or malice should have been unaffected by the Appellant’s legal contentions, which were irrelevant to the function His Honour was required to perform.

This ground of appeal suggests that His Honour’s decision as to whether or not there was bias and or malice was affected by what His Honour found to be also the appellant’s “equally intemperate and unfounded allegations” of malice. Although His Honour found that there was no evidence of deliberate bad faith or deliberate wrong doing on the part of the Commission, His Honour also held that the claims of procedural impropriety are insufficient to support the claim of bias. Then His Honour concluded that while the language of the Commission might have been emmotive or sensationalist, and if bias or bad faith was evidenced by such wording, the equally intemperate and unfounded allegations of malice by the Appellant demonstrated like conduct on the part of the Appellant.

I am satisfied that there was infact not sufficient evidence to found or support a claim of malice. I am also satisfied that the claims of procedural impropriety are in themselves insufficient to support claims of bias. I am however not entirely satisfied that the volume of emotive and sensationalist language or description of the conduct of a Leader being investigated is necessary to be balanced out by any equally intemperate or unfounded allegations made by the Leader being so investigated, such as the Appellant in this case.

If the description and wording used are sufficient in themselves objectively to found the basis for a conclusion as to bias or bad faith, then they stand to be so judged on the face of those descriptions and wording without any qualification by any possibly equally intemperate description or allegations by the Leader who complains about such description or wording used against him.

I have had the benefit of reading the draft judgement of my brother Justice Injia in relation to this ground and I accept and endorse his remarks in respect of the statement of test and principles in relation to the issue of bias. But I wish to add some additional remarks in relation to the appropriateness or otherwise of such descriptions and wording used in any preliminary investigation process under the laws.

The body descriptions, expressions and wording adopted by the Commission were described by the Trial Judge as possibly emotive or sensationalist. The totality of the descriptions and wording complained of are sufficiently gathered by Justice Injia in his judgement which I simply adopt. I concur entirely with the examination of this issue by Justice Injia, but I wish to add my strong expression of unacceptance of this kind of commentary in such a referral document of a preliminary investigation by a statutory institution which ought to be independent in that process. Some of the descriptions and wording used and the totality of them all are most inappropriate language to be adopted by such a constitutional institution. The Commission or any other such administrative investigative authority or Tribunal must be very careful to using language that is appropriate and be fitting the importance, independence and integrity with which such an organisation is held in the esteem of the people that it is to serve. Such public institutions are to uphold the integrity of the Constitution and the powers and functions held on behalf of the people in the exercise of those powers. Such Institutions and the Commission in particular, in this instance must be careful that the very principles of the protection of the integrity of the leadership is not brought into question in respect of it’s conduct by the manner in which investigation is conducted or the attitudes and preconceptions that might clearly be manifested by the inappropriate expressions and descriptions being used such as in this case.

Ordinary reasonable members of the public at large and the body of people that the Commission administers the Leadership Code in respect of could well be justified in questioning the impartiality and integrity of, the Commission if such inappropriate preconceived judgemental language is adopted. It must be remembered that it is not the responsibility nor function of the preliminary investigative body such as the Commission to pass moral judgement or judgement generally in it’s investigative decision-making process. The Commission is only charged with the jurisdiction under section 29 of the Constitution to be satisfied that there is a prima facie case that a person has been guilty of misconduct in office. It is therefore unnecessary and inappropriate to be embarking upon all the conclusion that were expressed in the descriptions and wording complained of.

The Court is unanimous in it’s disapproval of the use of these expressions and the kind of wording adopted in this referral document. In fact the court is so concerned at the objective appearance of bias that if it were not for the particular circumstances of this case the upholding of this ground of appeal would be sufficient to quash the referral.

Another aspect of the inappropriate expressions of opinion in the statement of reasons contained in the referral document is the fact that these documents are then presented to the Tribunal if the Public Prosecutor determines the allegations should be prosecuted before a Leadership Tribunal. Although the tribunals have not in any way been influenced at all by the statement of reasons and any conclusions that might have been reached by the Commission in respect of the allegations. If the Tribunal is not to be seen to be influenced in anyway by the language that is adopted by the Commission the barest minimum conclusion that there is prima facie case, will be sufficient. And again some guidance ought to be found in drawing on the analogy from a criminal committal prosecution before a Magistrate who has to determine if there is a prima facie case to be referred to the National Court. The court does not embark upon any conclusions of its opinion; it merely determines whether there is a prima facie case on the evidence before it and simply pronounces that fact and refers the matter to go before the National Court. I would suggest that the Commissions referral statement of reasons could well learn from the brevity of referral in criminal Committal prosecution. Ultimately the Tribunal is not interested in the Commissions opinions as to conclusions in respect of the allegations. The Tribunal must receive the necessary evidence and determine for itself whether the allegations of misconduct in office are proven or not.

(g) His Honour erred in law in holding that errors going to jurisdiction, and amounting to a nullity ab initio were not void but merely voidable at the Courts discretion.

(h) His Honour erred infact and in law in holding that there had been undue delay in the Appellant’s application for judicial review.

I am content to adopt the conclusions reached by my brothers the Deputy Chief Justice and Justice Injia in respect of these two grounds. Again I have just a few brief remarks in respect of ground (h). I would also endorse the observations in respect of this ground by Justice Injia that the different efforts made by the appellant to seek some redress from the Commission and the Public Prosecutor at different stages to no avail by the appellant. Whilst those different requests and representations show that there was no undue delay, yet the fact remained that as the jurisdictions are presently administered by these Institutions without any development as to what they may or may not be able to do in respect of the requests that were made by the Appellant, the exercise was futile and of no benefit to the Appellant in the end result in terms of the time that was utilised. These procedures of course remain to be addressed at some point in the future as to whether after the Commission had referred to the Public Prosecutor the allegations it is able to reconsider any aspect of it and secondly upon receipt of such referral from the Commission whether any representation such as were made by the Appellant to the Public Prosecutor are to be of any utility and purpose at all. For instance does the Public Prosecutor have any discretion to consider any further representation made by an aggrieved leader such as the Appellant contended in his application to the Public Prosecutor, or whether the Public Prosecutor is not entitled to consider any such representation and is simply duty bound to consider the material that is before him to make referral if he so decides to a Leadership Tribunal.

It in fact transpired that the Public Prosecutor did not entertain the representations made by the Appellant and determined that the matter should proceed before any Leadership Tribunal. If for instance it were to be of no utility or purpose at all to make such representation because the Public Prosecutor is not entitled or empowered to consider such representation or receive any further submissions in his consideration of whether or not the allegation should be referred to a Leadership Tribunal then of course any such representation is futile and in reality tantamount to wasting of time.

In the end result however I am not prepared to say that such representations by the Appellant amounted to undue delay.

His Honour erred in law in holding that the Appellant’s Constitutional rights are subservient to those of the Public Prosecutor in the exercise of his statutory functions.

Again I am content to adopt the conclusions of my brothers Kapi and Injia, and do not feel necessary to add anything further.

The end result of this is that although some procedural irregularity has occurred, in respect of count 13, which I have found to be one that no notice was given to the Appellant in respect of and very strong evidence of bias, the issue in the end result still remains whether in the exercise of the courts discretion the relief sought by the Appellant should be granted. For this purpose all the circumstances and the history of this case need to be considered and a balance struck between the need to protect and enforce rights of affected leaders and persons investigated by the Commission and the ultimate interest of the people as well in ensuring that justice is ultimately effected in bringing to finality allegations that are investigated and where some evidence is found to warrant referral to a Leadership Tribunal for determination.

If the ultimate relief sought by the Appellant is to be granted then the referral and the investigations are quashed in total and no further proceedings are to ensue. Should this be the just result without the truth or otherwise of the allegations being established, which for some evidence has been established to found a prima facie case? Or does the interest the preservation and protection of the people of Papua New Guinea from improper and corrupt conduct by the leaders as stated by the court in SC Reference No 2 of 1992 [1992] PNGLR 336 compel a remedy other than to totally cost the referral? Where does the balance of justice and convenience fall in these circumstances of this case?

The legal and constitutional position is that the Appellant was referred to the Public Prosecutor to consider in his independent judgement whether on the evidentiary material before him there was a prima facie case demonstrated to warrant referral to a Leadership Tribunal to inquire into those allegations and make determination. The Public Prosecutor’s decision to so refer in his independent judgement has not been challenged as being irregular or unsubstantiated on the basis of the evidentiary material that was investigated and referred. The whole matter and the totality of the allegations remain to be fully inquired into and to be determined by an independent Leadership Tribunal if the decision of the Commission to refer to the Public Prosecutor were upheld. The Appellant in this latter circumstance still has the full rights to challenge any evidence and the validity of the allegations and will have the opportunity to present any evidence and statements in response to the allegations and importantly still has the full opportunity to persuade the Leadership Tribunal that he is innocent of any misconduct in office. The decision to refer to the Public Prosecutor was a very preliminary decision. The Public Prosecutor also of course has the independent discretion to determine that there is no case warranting referral to a Leadership Tribunal. And furthermore even though the Public Prosecutor has referred the matter to a Leadership Tribunal the Appellant still has the full armoury of rights under the law and the law to persuade the Tribunal that he is not guilty of the allegations.

For these reasons that the decision of the Commission was not in any way conclusive or determinative of any of the allegations, in my opinion, the balance of justice and convenience both in the interest of the people of Papua New Guinea and Leaders who are subject to the leadership code is to allow the allegations to be proceeded with to be finally determined on their merits. I do not believe that the balance of justice and convenience and the interest of leadership integrity and honesty and good government would be met by totally quashing the referral as the Appellant has sought. There is of course the middle opinion as discussed by Deputy Chief Justice Kapi which I agree with as well, that it is possible to quash the referral and remit the investigation to an Investigating Authority appointed by the Commission under s. 19 of OLDRL to consider whether the leader should be referred to the Public Prosecutor for prosecution. For the reasons of balance of justice and convenience I do not consider that this option is any more meritorious than that of quashing the referral in total.

In the end result my opinion is that the referral should be proceeded with on the basis that the Appellant has now been given full notice of the fresh allegation that I have found as well as the others that he has taken issue with as being new. He will have the opportunity to present before the Leadership Tribunal his case in full to be determined accordingly thereafter.

KAPI DCJ: Mr John Mua Nilkare (hereinafter referred to as “the Appellant”) is a member of the National Parliament. He was duly elected in the general elections in 1992. He was the Minister for Village Services and Provincial Affairs from 30 July 1992 to 30 August 1994. He is subject to the provisions of the Leadership Code.

The Ombudsman Commission (hereinafter referred to as “the Respondent”) carried out investigations into alleged misconduct in office by the appellant. In a letter dated 8 June 1994 (hereinafter referred to as “the Notification Letter”) the respondent gave notice to the appellant under s. 20 (2) of the Organic Law on the Duties and Responsibilities of Leadership (hereinafter referred to as “the OLDRL”) that the respondent intended to refer certain allegations of misconduct to the Public Prosecutor for prosecution before a Leadership Tribunal. This was followed by a series of exchange of letters between the appellant and the respondent. It is not necessary to set out the details of these letters at this stage. The investigations by the respondent resulted in referral to the Public Prosecutor for prosecution of the appellant for misconduct in office. The referral and statement of reasons (hereinafter referred to as “the Referral Document”) by the respondent is dated 7 January 1995. The appellant was subsequently served with the copies of all the relevant documents relating to the charges.

A Leadership Tribunal was appointed and scheduled its first sitting on 5 June 1995.

The appellant made an application for leave for judicial review of the decision of the respondent to refer the matter to the Public Prosecutor for prosecution before the Leadership Tribunal. Leave for judicial review was granted on 1 June 1995 and an order staying the Leadership Tribunal from further proceeding until the determination of judicial review proceedings.

The judicial review proceeding was heard on 17 July 1995 by Sheehan J. The contention by the appellant before the National Court are well summarised by the Court as follows:

“In summary, it is the Plaintiff's case that before the Commission could come to a determination that prima facie the Plaintiff was guilty of misconduct in office and the Commission was therefore empowered to refer the allegations to the Public Prosecutor, it was obliged to follow the procedure governing its functions set out in the Organic Law.

There was first a requirement of law that it inform the Plaintiff of its intention to undertake an investigation into his conduct in office. This was not done. Secondly, the Commission having undertaken an inquiry was obliged and failed to give him a reasonable opportunity to be heard in relation to all the issues being investigated by the Commission. Thirdly, the Commission failed to furnish the Plaintiff with all the necessary documentation and particulars relating to the allegations of misconduct to enable him to make adequate reply. Fourthly, in making its referral the Commission failed to set out in a full fair and proper manner the Plaintiff's defence or explanation of the allegations against him. The failure to follow these statutory procedures are themselves sufficient to invalidate the referral. They also constitute a denial of the rules of natural justice and breach of the Commission's duty to observe such rules. Finally, the Plaintiff contends that the sum of the Commission's failure to observe the rules of natural justice, its failure to follow the procedures determined under the Leadership Legislation is evidence of real bias in the conduct of its duties.”

The appellant has appealed to this Court against the decision of the National Court. The appellant has filed two documents; Application for Leave to Appeal and Notice of Appeal in accordance with the Rules of the Supreme Court. Application for leave is as follows:

“1. For an order that the applicant have leave to appeal from the whole of the order of His Honour Justice Sheehan given on 4 August 1995 at the National Court of Justice, Waigani.

2. The appeal is against findings of law, findings of fact and findings of mixed law and fact and is required to be made by leave.

On 17 July 1995 the Appellant made application for judicial review of the decision, made by the Respondent pursuant to section 19 (1) of the Constitution and sections 20 (4) and 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership, to refer to the Public Prosecutor for prosecution before a tribunal established under section 28 (1) (g) of the Constitution and section 27 (7) of the Organic Law on Leadership (“the tribunal”), thirty one allegations of misconduct in office (“the Referred Allegations”), such allegations being set out in document titled “Referral Statement of Reasons by the Ombudsman Commission to the Public Prosecutor” and dated 7 January 1995 and that is the order appealed against in this Appeal.

(i) Whether the investigation leading to the Respondent's decision was ultra vires section 17 (1) of the Organic Law on the Ombudsman Commission, in that it was commenced without due notification to the Applicant.

(ii) Whether this ultra vires conduct on the part of the Respondent was fatal to the decision that the Applicant was, prima facie, guilty of misconduct; and therefore vitiated all subsequent conduct and decisions, including the decision to refer the allegations for prosecution.

(iii) Whether the Respondent failed to observe the rules of natural justice before making the Referral decision and thereby exceeded its jurisdiction.

(iv) Whether the Respondent made the decision in bad faith, affected by bias against the Applicant.

The reasons why leave should be given are more fully set out in the Notice of Appeal filed contemporaneously with this Application for Leave to Appeal.

“1. The Appellant appeals from the whole of the judgment of His Honour Justice Sheehan given 4 August 1995 at Waigani.

Leave to appeal is sought at the hearing as the matters to be raised in that application are whole the substantive matters constituting the grounds of appeal as set out in the grounds numbered 2 (a) to 2 (i).

(a) His Honour erred in law in holding that the Supreme Court's decision in Karo’s case (Albert Karo v Ombudsman Commission of PNG SCA 89 of 1995) did not confirm that the Respondent was under a duty to notify the Appellant of its intention to investigate certain allegations against him.

(b) His Honour erred in law, having held that the Respondent had breached its duty under section 20 (3) of the Organic Law on Duties and Responsibilities and Leadership, and having held that this amounted to an error going to jurisdiction, in holding that to include the Appellant’s defence in the referral document was ‘not a statutory obligation’.

(c) His Honour erred in fact and law in holding that the Respondent had not acted ultra vires because the appellant had no right to have the ‘whole of the investigation file served on him’; in that it was no part of the Appellant’s case that he had any such right.

(d) His Honour erred in fact and law in holding that the Respondent’s referral to the Public Prosecutor contained no new charges; and that the Respondent was entitled to rely on unnotified charges ‘so long a they arose out of the same basic allegations’; in that the evidence before the Court established that the referral did contain new charges; and the Respondent had no right to refer unnotified matters to the Public Prosecutor.

(e) His Honour erred in holding that there was ‘no evidence’ that the referral document contained new charges.

(f) His Honour erred in purporting to ‘balance’ the ‘the emotive and sensationalist language’ of the Respondent’s referral document against the Appellant’s ‘equally intemperate and unfounded allegations of malice’; in that judgment on the issue of the Respondent’s bias and/or malice should have been unaffected by the Appellant’s legal contentions, which were irrelevant to the function His Honour was required to perform.

(g) His Honour erred in law in holding that errors going to jurisdiction, and amounting to a nullity ab initio, were not void but merely voidable at the Court’s discretion.

(h) His Honour erred in fact and law in holding that there had been undue delay in the Appellant’s application for judicial review.

(i) His Honour erred in law in holding that the Appellant’s Constitutional rights are subservient to those of the Public Prosecutor in the exercise of his statutory functions.”

At the hearing of the appeal, counsel for the respondent raised two preliminary points in respect of Application for Leave to Appeal. First, it was submitted that the application for leave makes general reference to the Notice of Appeal without specifying the particular grounds which require leave of the Court. He further submitted that grounds 3 (d), (e) and (h) in the Notice of Appeal are grounds which raise questions of fact only and they have not been particularised in the Application for Leave.

In response to this, Counsel for the appellant conceded that grounds 3 (d) and (e) are questions of fact but did not agree that ground 3 (h) raised a question of fact alone. He sought leave to amend the Application for Leave by amending the last paragraph on page 3 of the Application by inserting after the words “are more fully set out” the following “in grounds 3 (d) and (e)”. The last paragraph would read:

“The reasons why leave should be given are more fully set out in grounds 3 (d) and (e) in the Notice of Appeal filed contemporaneously with this Application for Leave to Appeal.”

Counsel for the appellant further submitted that if the Court finds that ground 3 (h) raises a question of fact alone then the amendment to the last paragraph of the Application for Leave would include this ground of appeal.

We reserved our decision and proceeded with the rest of the appeal. I would grant the amendment sought by counsel for the appellant on the basis that it does not prejudice the respondent in any way. In fact the amendment goes some way in answering the objection raised by counsel for the respondent that the Application for Leave does not particularise the grounds which require leave to appeal.

Secondly, counsel for the respondent submitted that the Application for Leave does not state the reasons why leave should be granted in accordance with O 7 r 2 (c) of the Rules of the Supreme Court. In so far as it is relevant to an appeal on a question of fact which requires leave of the Court, the Application for Leave stated the reason why leave should be granted in the following terms:

This assertion without more does not indicate clearly the reasons why leave should be given. Order 7 r 8 of the Rules of the Supreme Court which deals with a Notice of Appeal, states that it is not sufficient to allege that a judgment is against the evidence or weight of the evidence; notice must specify with particularity the grounds relied upon to demonstrate that it is against the evidence and the weight of the evidence. Although this is not expressly stated in respect of reasons why leave should be given under O 7 r (2) (c), I would interpret the words “the reasons why leave should be given” to mean that reasons must be particularised to demonstrate why leave should be granted in respect of a finding of fact. A general assertion that a finding of fact is against evidence or weight of evidence is not sufficient.

Therefore, Application for Leave itself has not sufficiently stated the reasons why leave should be granted. However, the last paragraph of the Application (as amended) adopts grounds 3 (d) and (e) of the Notice of Appeal as stating the reasons why leave should be granted.

Grounds 3 (d) and (e) may be considered together. They deal with the same question of fact, namely, whether, the referral to the Public Prosecutor contains any new charges. The reason given for this ground of appeal is in ground 3 (d):

“in that the evidence before the Court established that the referral did contain new charges; and the Respondent had no such right to refer unnotified matters to the Public Prosecutor.”

The reason given is that there is evidence in the referral document which shows that there are new charges included in the referral. This reason points to the document where new charges may be found. However, the reason does not go far enough to indicate the particular charges which are new in the referral. If an application to amend was made by the appellant, I would have granted leave to amend the Notice of Appeal in order for the alleged new charges to be more particularised. Such an application was not made. However, in submissions, counsel for the appellant particularised the charges which he considered were new. There was no complaint by counsel for the respondent that the alleged new charges were not particularised. Therefore, I find that the application for leave in respect of grounds 3 (d) and (e) do contain reasons why leave should be granted. Having regard to the materials contained in the charges, I would grant leave to appeal in respect of these findings of fact.

In respect of ground 3 (h), I am in agreement with counsel for the appellant that this ground of appeal raises questions of mixed law and fact and therefore do not require leave of the Court.

It is not disputed that all the other grounds of appeal raise either questions of law or mixed law and fact and therefore do not require leave of the Court.

Ground 3 (a) - His Honour erred in law in holding that the Supreme Court’s decision in Karo’s case (Albert Karo v Ombudsman Commission of PNG SCA 89 of 1995) did not confirm that the Respondent was under a duty to notify the Appellant of its intention to investigate certain allegations against him.

It is not disputed that a complaint against the appellant’s conduct as a leader was made in November 1992. The decision to investigate the appellant was determined on or about 11 February 1993. Investigations proceeded throughout 1993 and 1994. The decision to investigate was not communicated to the appellant until by the notification letter the respondent advised the appellant that he had a right to be heard in respect of certain allegations of misconduct made against him.

The question before the National Court was whether, the investigation leading to the respondent's decision to refer the matter to the Public Prosecutor was ultra vires section 17 (1) of the Organic Law on the Ombudsman Commission (hereinafter referred to as “the OLOC”), in that it was commenced without due notification to the appellant? In the National Court, counsel for the appellant placed heavy reliance on the Supreme Court decision in Albert Karo v Ombudsman Commission of PNG (Unreported judgment of the Supreme Court dated 7 April 1995) which amongst other issues decided that the Commission is under a duty to inform any person that the Commission intends to make investigation of in relation to any matter within its jurisdiction. The National Court did not follow the Karo decision on two bases:

(a) That the sole issue before the Supreme Court was whether Mr Karo had a right to be heard before the decision by the Commission to issue the direction and not whether he had a right to be notified before investigations were commenced.

(b) The relevant provisions of OLOC and OLDRL in respect of application of s. 17 (1) of OLOC were not argued before the Supreme Court and therefore it was not authoritative on the point.

This ground of appeal calls for a closer examination of the decision of the Supreme Court in Karo’s case. Mr Karo is a member of the National Parliament elected during the 1992 general elections. He was Minister for Works at the relevant time. It was alleged that he may have acted improperly in occupying the house which was previously occupied by the Premier of Central Province.

The Ombudsman Commission acquired the information of the alleged misconduct in September 1993. The Commission carried out an investigation into the complaint. As a result of these investigations, the Commission issued a direction under s. 27 (4) of the Constitution to the Managing Director and Minister for Housing to immediately cease all arrangements pertaining to the tenancy of the property to anyone until the Commission had completed its enquiries into the matter. These directions were issued on 6 and 7 September 1994 respectively.

On the morning of 7 February 1994 Mr Karo executed a tenancy agreement with the State represented by the Managing Director for the occupation of the property. The Commission carried out investigations into the execution of the tenancy agreement. On 11 February 1994 the Ombudsman Commission gave directions to Mr Karo to vacate the property pending completion of investigations.

Prior to 11 February 1994 Mr Karo had not been advised that his conduct was the subject of a complaint, nor had he been advised that the Commission was investigating his conduct.

The sole issue for consideration by the Supreme Court was whether the Ombudsman Commission was required to give Mr Karo an opportunity to be heard before giving the direction under s. 27 (4) of the Constitution.

The Court concluded that Ombudsman Commission was bound to give Mr Karo an opportunity to be heard on the issues being investigated by virtue of s. 20 (3) of OLDRL.

In addition to dealing with the main issue, the Supreme Court also dealt with another issue which was not raised by the Notice of Appeal, namely, whether the Ombudsman Commission was required to give notice to Mr Karo before investigation was carried out. The Court concluded that the Ombudsman Commission was required to give notice to Mr Karo by virtue of s. 17 (1) of OLOC. I agree with counsel for the respondent that the decision of the Court on this issue was obiter dicta and was not binding on the National Court.

In my view the National Court in the present case was entitled to deal with the issue in the manner it did. The question before us is; whether the National Court was correct in reaching the conclusion that there was no obligation on the part of the Commission in leadership code matters to notify the appellant that it intends to carry out an investigation.

I set out fully the reasons for decision by the National Court on this particular issue:

“The Commission relying on s. 3 of the OLOC denies any obligation in law to comply with s. 17 (1) of the Act in Leadership Code investigations. It asserts that only the OLDR is applicable and specifically the procedures of s. 20 which require no notice of investigation (ss. 17 (1) OLOC). The argument is compelling. Section 3 of the OLOC states:

Except as provided by any other law, this law does not apply to the powers functions and duties of the Ombudsman Commission under Division III. 2 (Leadership Code) of the Constitution.’

That clearly excludes leadership code inquiries from OLOC and s. 3 of the OLDR confirms this:

(1) This law is in addition to, and does not derogate, the provisions of the Organic Law on the Ombudsman Commission.’

That is clearly the reciprocal of s. 3 of OLOC. Subsection (2) goes on to confirm this:

‘2. The powers functions duties responsibilities conferred or imposed by this law are in addition to and do not derogate any other powers duties or responsibilities conferred or imposed on the Commission by any other law.’

Both statutes came into operation on Independence day after adoption of the Constitution. They were thus intended to stand side by side. Clearly the ODLR is not ‘any other law’ intended to alter the provisions of the OLOC. Likewise as twin, standalone laws, s. 3 (2) of OLDR cannot be claimed to aler the procedures of its own s. 20, or 17 of OLOC. It states that the OLDR does not derogate OLOC. That is it accepts its provisions in full, including s 3 of that law.

Karo’s case relied on by the Plaintiff is clearly in conflict with those sections. Equally clear, the decision in Karo’s can be distinguished on these issues since they were not drawn to Supreme Court’s attention let alone argued before it.

As it turned out at page 4 of that decision, the appeal before the Supreme Court:

(a) That the Ombudsman was required as a matter of law to offer the Appellant a right to be heard before issuing a direction, the nature of which was to remove him and his family from his house.

(b) The admitted failure to provide the Appellant with an opportunity to be heard before issuing (such) direction amounts in law to an action in excess of jurisdiction, rendering the direction susceptible to review by the Courts.’

Having determined those issues the Court moved to consider a model enquiry which included the provision for a notice of intention to investigate. It was certainly without the benefit of argument on both the 3’s of OLOC and OLDR. Had it been, then there would have been a proviso in respect of leadership code investigations. I am satisfied therefore there was no obligation under statute nor any under natural justice principles that the Plaintiff be notified of an intended investigation on this complaint therefore, there has been no impropriety. On this complaint therefore there has been no impropriety.”

I have considered the opinion of the trial judge and I am in agreement with his conclusions in respect of application of s. 17 (1) of OLOC to leadership code matters under OLDRL.

The Ombudsman Commission is established under s. 217 of the Constitution. The purpose of the Commission is set out in s. 218 as follows:

(a) to ensure that all governmental bodies are responsive to the needs and aspirations of the People; and

(b) to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and

(c) to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and

The functions of the Commission are set out in s. 219 of the Constitution. These functions can be divided into three categories:

1. Paragraphs (a) and (b) of Section 219 (1) deal with investigations into alleged “wrong conduct” on the part of governmental bodies etc and investigations of defective laws and defective administrative practices appearing from such investigations;

2. Paragraph (c) of Section 219 (1) deals with investigations into alleged or suspected discriminatory practices;

3. Paragraph (d) of Section 219 (1) deals with functions conferred under Division III. 2 (leadership code).

The procedures of the Ombudsman Commission in relation to these functions are contained in two Organic Laws:

1 The OLOC deals with functions set out in s. 219 (1) (a), (b) and (c) of the Constitution.

2. The OLDRL deals with functions set out under s. 219 (1) (d) of the Constitution.

The effect of these Organic Laws is to lay down different procedural codes, depending on what particular aspect of its jurisdiction the Commission is exercising.

An investigation of an alleged “wrong conduct” by a governmental body or of an alleged discriminatory practice is governed by OLOC. The provisions of OLOC deal mainly with “wrong conduct” by bodies enumerated under s. 219 (1) (a) of the Constitution (see s. 13, 22 (1) (a) of OLOC), defects in law or administrative practice (see 22 (1) (b) of OLOC) and practice that may be discriminatory (see s. 22 (1) (c) of OLOC). Section 17 (1) is applicable to such investigations. Section 3 of OLOC is specific about the application of these provisions. It states:

“Except as provided by any other law, this Law does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III. 2 (leadership code) of the Constitution.”

This is the clearest statement of the intention of the Parliament that s. 17 (1) OLOC and other relevant provisions are not applicable to leadership code matters. The only exception to this is provided by the words:

This means that some other law may adopt the application of the provisions of OLOC to leadership code matters. The question is; are there any provisions in the OLDRL which adopts the application of the provisions of OLOC to leadership code matters?

“(1) This Law is in addition to, and does not derogate the provisions of the Organic Law on the Ombudsman Commission.

(2) The powers, functions, duties and responsibilities conferred or imposed on the Ombudsman Commission by this Law are in addition to, and do not derogate any other powers, functions, duties or responsibilities conferred or imposed on the Commission or other authority by or under any other Law.”

This simply means that the powers, functions duties and responsibilities given by OLDRL are additional powers and do not in any way affect the powers of the Commission given under the provisions of any other law such as OLOC. Those powers, functions etc are intact and may be exercised within their own terms. Conversely, the Ombudsman Commission can exercise its powers under OLOC and the provisions of OLDRL will not affect the exercise of those powers. These powers can be exercised independently of each other. Section 3 of OLDRL does not in any way adopts the provisions of OLOC for purposes of leadership code matters.

Further, it is clear from the provisions of OLDRL that it provides for its own procedure for leadership code matters and there is no need to look to the provisions of OLOC. This is consistent with the expressed intention under s. 3 of OLOC that the procedures set out under OLOC should not be applicable to proceedings in the leadership code matters.

A comparison of the two Organic Laws reveals that there are significant differences. It is not necessary to set out all the differences. I should point out two significant differences which are directly relevant to the issue at hand. The first is that there is no equivalent of s. 17 (1) of OLOC in the provisions of OLDRL. Secondly, under s. 20 (2) of OLDRL a leader who is being investigated has a right to be notified after the investigations have commenced and the right to be heard (s. 20 (3)) on matters which are the subject of investigations before a decision is made to refer the matter to the Public Prosecutor for prosecution under s. 20 (4) of OLDRL.

There is clearly an implied intention by the legislature that a person investigated under OLDRL should not have the right to be notified before an investigation is carried out. The right to be notified is given at a later stage after the investigations have been carried out under s. 20 (2).

Having come to this conclusion, there is no room for the application of any principle of underlying law with respect to natural justice which may require a right to be notified before investigation commences. Any such principle (if any) would be inconsistent with the implied intention not to apply this right until at a later stage of investigations under the provisions of OLDRL.

His Honour erred in fact and law in holding that the Respondent had not acted ultra vires because the Appellant had no right to have the “whole of the investigation filed served on him”; in that it was no part of the Appellant’s case that he had such a right.

This ground of appeal is poorly drafted and does not raise any substantive ground of appeal. This ground of appeal appears to be directed at the remarks of the trial judge at page 552 of the Appeal Book:

“The right to be heard is not a right to have the whole of an investigation file served on him with a demand for an explanation.”

This ground of appeal suggests that this proposition was not advanced by the appellant in the Court below. I agree with counsel for the respondent that this ground of appeal is misconceived. As counsel for the respondent submitted:

“If (as the notice of appeal) it was not part of the appellant's case that she had the right to have the whole of the investigation file served on him, it is inconsequential that the trial judge confirmed that he had no such right.”

The trial judge in this part of the judgment was addressing the complaint made by the appellant:

“that none of ‘the necessary documents and particulars of the investigation...’ referred to in Karo’s case were furnished to him, either in June of 1994 or in respect of further and additional charges in the referral of January 1995.”

“There is a misapprehension here. Notice of the right to be heard and that hearing are quite different. The right in the Leader to be heard is a Constitutional statutory and natural justice requirement. The obligation on the Commission in respect of that right, both under s. 20 (3) and in natural justice, is to notify a leader of the fact that allegations have been made against him; setting out the substance of the charges; such that he is able to understand their nature and to inform him of his right to be heard in respect of each of them; and to accord him that right if he chooses to exercise it.”

That in my view is a correct statement of the law. The right to notify a leader and the right to be heard are set out under OLDRL, s. 20 (2) and (3) respectively. My only comment is that it is not necessary to make reference to the principles of natural justice formulated as part of the underlying law. The provisions of OLDRL are sufficient in respect of natural justice matters.

This ground of appeal in no way questions the two propositions in law set out by the trial judge in the passage set out above.

His Honour erred in fact and in law in holding that the Respondent’s referral to the Public Prosecutor contained no new charges; and that the Respondent was entitled to rely on unnotified charges “so long as they arose out of the same basic allegations”; in that the evidence before the Court established that the referral did contain new charges; and the Respondent had no such right to refer unnotified matters to the Public Prosecutor.

His Honour erred in holding that there was “no evidence” that the referral document contained new charges.

These two grounds of appeal are related and therefore should be dealt with together.

These grounds of appeal raise two issues; (1) whether the Commission's referral to the Public Prosecutor contained “new charges” and (2) whether the Commission was entitled to rely on un-notified charges “so long as they arose out of the same basic allegations”.

“But I am unable to say that any of the charges are new and unrelated to prior allegations. There was no evidence of this. Evidence that it was the obligation of the Plaintiff to provide.”

Counsel for the appellant submitted that the evidence of the new charges are to be found in the referral document to the Public Prosecutor by the Ombudsman Commission dated 5 January 1995. It is submitted that there are 5 new charges which were not set out in the allegations contained in the notification letter given on 8 June 1994.

Counsel for the respondent submitted that there was lack of evidence by the appellant on the new charges. It was submitted that the notification dated 8 June 1994 and the referral document dated 5 January 1995 was not sufficient.

As a matter of evidence, whether or not there were new charges contained in the referral document, this could only be proven by admitting in evidence two documents; the notification letter dated 8 June 1994 which set out the allegations of misconduct and the referral document dated 7 January 1995 which set out the charges which were finally determined. Both documents were in evidence before the Court. With respect to the trial judge, I cannot think of any other evidence which could have been called to prove the new charges.

With respect the conclusion by the trial judge that he was unable to say whether any of the charges were new or unrelated to the prior allegations because there was no evidence is wrong. He had the primary documents from which he could make findings of fact. In fact a submission was made that the differences are self evident in the documents. In considering this submission the trial judge concluded:

“Despite the submission that these differences are self evident, I find no basis to determine whether the additional charges arose from the initial allegations or not. There can be no finding of impropriety on the part of the Commission in this regard.”

In reaching this conclusion the trial judge fell into error in that he failed to examine the documents and determine whether or not there was any evidence of new charges.

Before I examine the documents and determine whether there are any new charges, I need to deal with the second issue raised by this ground of appeal, namely, whether the Commission was entitled to rely on un-notified charges “so long as they arose out of the same basic allegations”. This issue arises out of the remarks made by the trial judge in the following passage:

“On the claim of right to be heard in respect of the ‘new’ charges set out in the referral, if there were new and separate and not simply charges arising out of the same basic allegations, then there would be a right to be heard on them as well.” (emphasis added).

This passage should be read together with another passage which appears on page 551 of the Appeal Book:

“It may well be that from a particular allegation of misconduct a number of discreet charges arise, but for every different, separate charge the provisions of s. 20 (3) apply...”

I think what his Honour meant was that a particular set of circumstances (or facts) may give rise to a number of different and distinct charges of misconduct in office. To each of these charges of misconduct s. 20 (3) of OLDRL applies. It is unfortunate that the trial judge appears to distinguish a situation where “simply charges arising out of the same basic allegations”. Where same allegations of fact gives rise to separate and distinct charges a leader is entitled to be notified of each of those charges (s. 20 (2)) and a right to be heard in respect of each of the charges (s. 20 (3) of OLDRL).

The essential elements of a leadership code offence are distinct and the leader is entitled to be informed of each of these elements including particulars of the same. This has to be distinguished from evidence that might be called to prove these elements. The leader is not entitled to this. The leader is not entitled to the whole of the Ombudsman Commission file.

I will now examine the documents to determine if there are separate and distinct new charges.

Counsel for the appellant has submitted that an examination of the referral document will show that there are 5 separate and distinct new charges which have not been alleged before in the notification letter dated 8 June 1994.

Counsel for the respondent simply submitted that “the five alleged completely new allegations have their genesis in the notice of the right to be heard issued in June 1994”.

The first alleged new charge is found in count 8 in the referral document. It is set out as follows:

“Improper request for the wavering of tendering procedures etc., by an associate, Mr Henry Mokomo.

COUNT 8: THAT on or about 14 July 1993, the Hon. John Mua Nilkare, Member of Parliament and Minister for Village Service and Provincial Affairs, failed to ensure as far as was within his lawful power, that Mr Henry Mokomo, then his First Secretary, being a person for whom he was morally, legally and by usage responsible did not conduct himself in such a way that might be expected to give rise to doubt in the public mind as to his (the Hon. John Mua Nilkare) compliance with his duties and responsibilities under Section 27 (1) (a), (b), (c) and (d) of the Constitution;

IN THAT Mr Henry Mokomo did write an official ministerial letter to the Hon. Titus Philemon, then under-secretary Ministry of Finance and Planning, renewing Mr Nilkare's earlier request of 24 June 1993, for the waivering of all tendering procedures, in relation to the proposed purchase of road making plant and equipment from K200,000.00 in public funds, which had been allocated to him by the Department of Transport, for the first half 1993, under a programme then administered by the said department known as Rural Transport Assistance Programme (RTAP);

and inadequate and/or insufficient grounds existed for the waivering of tendering procedures; and the proposed purchase of the road making plant and equipment was for a purpose to which the said funds could not lawfully be applied; and

AND FURTHERMORE the Hon. John Mua Nilkare did fail to publicly disassociate himself from the abovementioned actions of Mr Henry Mokomo contrary to the requirements of Section 27 (3) (b) of the Constitution;

THEREBY contravening Section 27 (3) (a) and )b) and Section 27 (5) (b) of the Constitution.”

This charge is based upon allegations made in relation to Minor Transport Programme - 1993 in the notification letter. These allegations were made in the following terms:

On 4 June 1993 as a Member of Parliament for Gumine, Minister of Village Services and Provincial Affairs you were allocated K200,000 for four (4) capital works projects in your electorate, namely:

On 30 July 1993, you wrote to the Minister for Transport Hon Roy Yaki, indicating that you intended to expend the sum allocated to your electorate on the purchase of road-making equipment. You further stated that you required an addition of K100,000 to top up the costs of acquiring the equipment. You incorrectly stated in the letter that you had already received approval for the waivering of tender procedures, for the purchase of the equipment.

On 4 August 1993, you wrote to Hon Titus Philemon, Under Secretary for Finance and Planning requesting him to waiver tender procedures (in accordance with Section 40 (3) (c) of Finance Management Act) in order for you to use the funds to purchase, the aforesaid equipment.

On 17 August 1993, the Under Secretary advised that he could only approve the purchase of the “Rubber Tyred Loader from Morgan Equipment Lae” at a cost of K90,328 and rejected the proposed purchase of a tracked dozer, as the cost (K160,912) was beyond his financial jurisdiction.

As a consequence of the above you may have committed misconduct in office. Thus your explanation is required.”

That in a letter dated 30 July 1993 the appellant wrote to the Minister for Transport and incorrectly stated that he already received approval for waivering of tender procedures for the purchase of road making equipment when in fact he only wrote to the Hon. Titus Philemon for such a waiver in a letter dated 4 August 1993 and only received approval for the purchase of Rubber Tyred Loader for K90,328.

The subject of this allegation is now contained in count 7 of the referral document. It relates to the personal action of the appellant.

The charge which is now contained in count 8 relate to a letter written by a Mr Henry Mokomo, First Assistant Secretary employed by the appellant following up a letter written by the appellant requesting waiver of tendering procedures. This clearly is a separate and distinct charge from the charge which is contained in count 7 even though they arise out of fairly closely related facts. As already pointed out earlier in my judgment, a leader is entitled to be notified of the substance of each of the charges alleged against him under s. 20 (2) in order for the leader to respond adequately under s. 20 (3) of OLDRL. The allegation contained in count 8 was not set out in the notification letter.

I find that count 8 is a new charge for which the appellant was not notified and therefore not given an opportunity to be heard on the particular charge.

The second charge which is alleged to be a new charge is contained in count 12 in the referral document. It is not necessary for me to set out the details of this count in that it is in exactly the same terms as that of count 8 with the exception that it alleges that a separate letter written by Mr Henry Mokomo following up the same letter earlier written by the appellant requesting waiver of tender procedures.

As with count 8 this is a different and a distinct charge and has not been alleged in the notification letter and therefore the appellant was not notified under s. 20 (2) nor given the opportunity to respond under s. 20 (3) of OLDRL.

The next alleged new charge is contained in count 13 of the referral document. The charge is in the following terms:

COUNT 13: THAT between June 1993 and July 1994, the Hon. John Mua Nilkare, Member of Parliament and then Caretaker Minister for Transport did intentionally cause to be applied money forming part of a fund under the control of Papua New Guinea to a purpose to which it could not lawfully be applied;

IN THAT he did intentionally cause to be applied K39, 378.44, being RTAP funds to purposes to which the funds could not lawfully be applied, namely:

Date	Particulars	Amount
16/6/93	ROPNSPG Trust A/c to cover overpayment	K4,116.71
16/8/93	The Work House-Printing Nilkare’s posters	K1,500.00
9/11/93	PTB-3 days hire for Mr Peter Gull	K231.00
9/11/93	Huon Gulf Motel Acc. for P Gull	K107.50
25/11/93	Mr Peter Gull-T/A for 4 nights	K136.00
25/11/93	Mr Peter Gull-T/A for 4 nights	K136.00
25/11/93	Huon Gulf Motel-Accom for P Gull	K216.20
25/11/93	PTB-4 Days hire for P Gull	K284.00
25/11/93	Air Niugini-T/W for P Gull Pom/Gor/Pom	K500.00
24/1/94	D Porak, Paymaster-Cash Adv for Waghi Bridge opening	K2000.00
28/1/94	Huon Gulf Motel-Accom for P Gull	K215.20
28/1/94	Cash Advance for P Gull & A Kim	K300.00
2/2/94	PTB hire of vehicle for P Gull	K370.00
2/2/94	Peter Gull-T/A to Lae to purchase equip	K136.00
2/2/94	Payment for repairs for Whagi Bridge	K391.52
16/3/94	Terry Takodol-Cash Adv for Gumine District Office opening ceremony	K26,000.00
22/3/94	District Manger-Cash Adv for Gumine District Office opening ceremony	K500.00
22/3/94	PTB-Hire for Omkoloi Water Supply	K518.00
13/4/94	Air Niugini-Airfares for A Kim 2nd Secretary to Minister VS&PA	K113.00
7/7/94	Gumine Local LGC Works Unit New A/c	K600.00
7/7/94	Jones Stationaries-Stationary supplies	K69.31
7/7/94	BP Wara Simbu-Fuel Charges	K200.00
7/7/94	District Manager-Cash Adv for P Gull, A Kim and John Dai-Ministerial Staff VS&P	K510.00
	Total Expenditure on non Transport Related Projects	K39,378.44

THEREBY contravening Section 13 (a) of the Organise Law on the Duties and Responsibilities of Leadership.”

This charge relates to misappropriation of Minor Transport Funds in 1993. The allegations in the notification letter are dealt with in paragraph “A2”. This paragraph deals with allegations of misconduct in relation to waiver of tender procedures and limited approval given by the Under Secretary for Finance and Planning. It made no allegation of unlawful application of any of the amount of money allocated to the appellant. The particular allegations contained in this count were not brought to the attention of the appellant and the appellant made no response under s. 20 (3) of OLDRL.

The next charge which is alleged to be new is contained in count 26 of the referral document. It is in the following terms:

Count 26: THAT between 5 January 1994 to 4 February 1994, the Hon John Mua Nilkare, Member of Parliament for the Electorate of Gumine and Minister for Village Services and Provincial Affairs, did intentionally apply money forming part of a fund under the control of Papua New Guinea to a purpose to which it could not lawfully be applied;

IN THAT during the said period he did intentionally apply K19, 860.66 of Rural Agricultural Development Program funds to a purpose to which they could not lawfully be applied, namely:

THEREBY contravening Section 13 (a) of the Organic Law on the Responsibilities and Responsibilities of Leadership.”

This charge is said to arise out of allegations of misuse of Rural Agriculture Program Funds. In the notification letter, it was alleged in paragraph “D” that the appellant obtained an amount of K20,000 from the Minister for Livestock and Agriculture and that he failed to account for or acquit the funds. This is a general allegation that the appellant did not account for the expenditure of the amount of money for purposes for which the money was allocated. I accept that such an allegation implies that the money was spent on purposes which were not lawful. The charge set out in count 26 comes within the allegations made in the notification letter. Therefore, this is a charge for which the appellant was notified and an opportunity given to be heard under s. 20 (3) of the OLDRL. It is not a new charge.

The last count which is alleged to be new is contained in count 30 in the referral document. It is in the following terms:

COUNT 30: THAT the Hon. John Mua Nilkare, Member of Parliament, did knowingly, recklessly or negligently furnish to the Ombudsman Commission, a statement that was false, misleading or incomplete in material particulars, in respect of the period 16 July 1991 to 15 July 1992;

The actual extent of his and his wife’s combined indebtedness to the PNGBC and Rural Agriculture Bank as follows:

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

This count essentially deals with declaring a false annual statement for 1991 - 1992 Annual Statement in terms of shareholdings and directorships of various companies and their indebtedness.

This count is said to be based on the allegations made in the notification letter with regard to Directorships and Shareholdings. These allegations appear in paragraph ‘J’ in the notification letter. The allegations relate to interests in various companies. However, the nature of the allegations in respect of misconduct in office are different. They make allegation of not obtaining permission of the Ombudsman Commission to hold directorships in companies and allegations of having conflict of interest by virtue of shareholdings and directorships in the various companies. These allegations constitute separate and distinct charges from the charge that is now contained in count 30. This count deals with a false declaration in the Annual Statement and debts owing to other people. These are separate and distinct charges from the allegations made in the notification letter. I therefore conclude that no notification under s. 20 (2) was given and no opportunity to be heard was afforded to the appellant in respect of count 30.

I will deal with what consequential orders should be made in respect of charges where the appellant was not notified later in my judgment.

His Honour erred in purporting to “balance” the “emotive and sensational language” of the Respondent’s referral document against the Appellant’s “equally intemperate and unfounded allegations of malice”; in that judgment on the issue of the Respondent’s bias and/or malice should have been unaffected by the Appellant’s legal contentions, which were irrelevant to the function his Honour was required to perform.

This ground of appeal relates to fundings of the trial judge in relation to the issue of bias and malice.

“as regards malice, this was simply not pursued that it was a major and persistent allegation at the application seeking leave for this review and the basis of a sustained for full discovery. The Plaintiff in fact has demonstrated he had no basis at all for charges of deliberate bad faith and deliberate wrong doing on the part of the Commission.”

“The claims of procedural impropriety are insufficient to support the claim of bias. The evidence shows the Commission was intent on strictly following the OLDRL. As has been determined there was nothing improper in not giving notice of intention to investigate under s. 17 (1) of OLOC and the need to set out the defence in the referral is likewise not a statutory obligation. The failure to answer one request for particulars and the omission of the defence in the referral therefore indicates errors in procedure rather than any sinister or systematic ignoring of the Plaintiff's rights.”

In this passage the trial judge considered two grounds of bias. First he concluded that there was nothing improper in not notifying the Appellant persuant to s. 17 (1) of OLOC. I have already concluded in ground 3 (a) that the trial judge was correct in this conclusion.

Secondly the trial judge concluded that the failure to answer one request for particulars and the ommission of the appellant’s defence in the referral indicates procedural error and was not indicative of bias.

What the ground of appeal has questioned is the conclusion reached by the trial judge on another basis for bias. The trial judge set this out in the following passage:

“There remains the fact of a request for particulars ignored the actions of the staff, and emotive judgmental out of control language.

These do not advance the claims of bias either. Serving a leader at 10.30 pm after a 3 day search for him is not evidence of KGB factors. The language of referral has been said to indicate an ‘out of control’ Commission. While the language may be emotive or sansationalist even, it may also be described as indicating - indignation. If bias or bad faith are evidence by such wording, the equally intemperament and unfounded allegation of malice and KGB tactics demonstrate the like on the part of the Plaintiff. I find no impropriety here.”

It is clear from this passage that the trial judge had considered that the language of the referral was indicative of “bias or bad faith”. However, he dismissed this out of hand by concluding that the Appellant was equally guilty of “intemperate and unfounded allegations of malice”.

This ground of appeal is fully discussed by Injia J in his judgment. I agree with his conclusion and the reasons for decision. I would allow this ground of appeal.

His Honour erred in law in holding that errors going to jurisdiction, and amounting to a nullity ab initio, were not void but merely voidable at the Court’s discretion.

This ground of appeal raises the issue of the nature of the power of the National Court to make a remedial order. Where there is a jurisdictional error or breach of some principle of law, the question arises as to the power of the National Court to make a remedial order.

In the context of this case, what has been alleged is breach of provisions of a constitutional law; the next question is what are the powers of the Court in making a remedial order. There are two issues involved here. Whether or not there is jurisdictional error or breach of a principle of law is one thing; and the question of whether a particular remedial order should be made having regard to the jurisdictional error or breach of the law, is another matter. The point raised by this ground of appeal relates to the second question. The nature of the power of the Court to make remedial order depends to a large extent on the nature of the remedy sought.

What has been alleged in this case is breach of provisions of OLDRL and an application for orders to quash the proceedings pending before the Leadership Tribunal and to restrain any further such proceedings in the future. Whether or not there was a breach of this provision is one thing. I have dealt with this issue in the other grounds of appeal. Whether or not remedial orders sought should be made is the issue under consideration in this ground of appeal.

An analogous issue came up for consideration in Reference No 1 of 1977 [1977] PNGLR 362. The question referred by the Acting Public Solicitor was:

“Does failure to comply with all or any of the provisions of s. 42 (2) of the Constitution for that reason alone render subsequent admissions by an accused person inadmissible as evidence on his trial?”

In the reference, non-compliance with s. 42 (2) of the Constitution was assumed. The question was; whether the record of interview which is obtained from an accused person in non-compliance with s. 42 (2) would render it inadmissible? The Court found that there was no specific provision in the Constitution which rendered a record of interview inadmissible for non-compliance with s. 42 (2). However, the Court found that there is discretion in the National Court to reject such a record of interview depending on the circumstances of each case.

In the present case, what is alleged is a breach of the provisions of OLDRL. Are there any provisions in OLDRL which provide for the powers of a Court in relation to a referral which is made in breach of s. 20 (2) and (3) of OLDRL? There are no such provisions. Following the rationale of the decision in Reference No 1 of 1977 (supra) there would be discretion in the National Court to make the orders sought in this case.

The procedure under O 16 is a procedure provided for what is known as prerogative writs and equitable remedies under common law. These are of course discretionary powers. The law is well settled in this regard.

Furthermore, similar powers are given to the National and the Supreme Courts under s. 155 (4) of the Constitution. These are clearly discretionary orders.

Section 23 of the Constitution was not argued and therefore I cannot make concluded remarks concerning its application. However, I wish to point out s. 23 (2) which gives the National Court power “if it thinks proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty”. This again is clearly discretionary power.

I am of the opinion that the trial judge did not err when he reached the conclusion that the matter of what remedy the Court should give was a matter of Court's discretion. I would dismiss this ground of appeal.

His Honour erred in fact and law in holding that there had been undue delay in the Appellant’s application for judicial review.

This ground of appeal is related to ground 3 (g) in that in considering the Court's discretion, the question of delay is an important consideration. This principle is well established in judicial review proceedings for prerogative writs and orders in common law. Order 16 r 4 states the principle:

“Where in any case the Court considers that there has been undue delay in making an application for judicial review...the court may refuse to grant...any relief sought on the application, if, in the opinion of the court, the granting of the relief sought will be likely to cause substantial hardship to, or substantially prejudice the rights of, any person or would be detrimental to good administration.”

Section 155 (4) of the Constitution is a grant of a separate power nature of which is the same as preorgative writs and orders in common law. The exercise of this power is not necessarily governed by O 16. The concept of delay under O 16 r 4 need not be read too easily into the exercise of power under 155 (4). Whether or not this should be so has not been argued fully before us. Therefore I will not make any final remarks on it. I think it is important to point out that those who are seeking remedies ought to be specific as to whether they are seeking orders under common law or under s. 155 (4) of the Constitution. Because under s. 155 (4), the words “orders as are necessary to do justice in the circumstances of a particular case” may be given liberal interpretation in terms of delay.

The application in this case was made under O 16 of the National Court Rules. It is therefore governed by the provisions of O 16 r 4.

The question to be considered by us is whether the trial judge correctly considered the issue under O 16 r 4, namely whether there has been undue delay; and whether having regard to the delay the granting of the relief will be likely to cause substantial hardship to or substantially prejudice the rights of any person or would be detrimental to good administration.

In relation to the first question the important facts to be considered are as follows:

20 July 1994: Ombudsman Commission formally advised the appellant that the matter is being deliberated upon.

25 Jan 1995: Appellant’s lawyer wrote to the Commission seeking particulars of the allegations.

6 Feb 1995: Chief Ombudsman replied, advising that the matter has already been referred to the Public Prosecutor.

15 Feb 1995: Applicant’s lawyer wrote to Commission,advising that the appellant “reserves his rights”.

11 April 1995: Ombudsman Commission’s statement of reason; copies of exhibits; copies of relevant legislation; and relevant cases, given to the appellant’s lawyer.

18 April 1995: Appellant’s lawyer wrote to the Public Prosecutor, seeking further and better particulars and claimed denial of natural justice.

24 April 1995: Appellant’s lawyer (acquiescing in the proceedings) attended on the Chairman of the Leadership Tribunal. It was planned that the referral would be made to the Tribunal on this date.

However, the appellant’s lawyer would not consent to the referral being made in the absence of the other members of the Tribunal. The referral was deferred to 5 June 1995.

28 April 1995: Appellant’s lawyer wrote to the Public Prosecutor, confirming that the matter is set for hearing by a Leadership Tribunal on 5 June 1995. He contended that the Public Prosecutor has an ethical duty to concede that the matter had been irretrievably tainted by the unlawful conduct of the Ombudsman Commission.

11 May 1995: Public Prosecutor replied to the letter of 28 April, advising that he would not be withdrawing the referral to the Tribunal.

It is clear from all these facts that the appellant was aware of grounds for making application for judicial review as early as 9 January 1995 when he was served with the notification letter. However, it is also clear that the appellant actively sought alternate ways to remedy claims of denial of natural justice. He raised these issues with the respondent and the Public Prosecutor. The Public Prosecutor replied in letter dated 11 May 1995 that the referral would not be withdrawn. When all avenues were exhausted the appellant then filed application for leave for judicial review on 23 May 1995.

The question of delay is a relative matter. Whether or not there is undue delay depends on the circumstances of each particular case. In this matter the appellant actually sought remedies to alleged demand of natural justice and jurisdictional errors with the two authorities, the respondent and the Public Prosecutor. He did not sit on his claims and did nothing. Can it be said that it was reasonable of the Appellant to seek to correct what he thought were breaches of the law with the appropriate authorities before considering the option to litigate the issues? I consider that it is reasonable to try and settle issues out of court. If this is not done or encouraged our courts would be flooded with too many cases to handle. This is not only a speedier way of resolving issues but it is also less costly. The appellant in my view should not be penalised for attempting to resolve the issues in this manner, provided that there is no undue delay.

“It was submitted that the Plaintiff was under no obligation to take court action; that he was entitled to look for a consensual resolution of his concerns. He was entitled to stand on his rights.

That submission is valid only insofar as there is no delay. One cannot sit on one’s rights forever.”

In this particular case, the appellant dealt with both the respondent and the Public Prosecutor. The respondent was responsible for referring the matter and the Public Prosecutor is responsible for prosecuting the matter before a Tribunal. The latter advised the appellant on 11 May 1995 that it would not withdraw the referral and the appellant filed application for leave for judicial review on 23 May 1995. In my view the appellant did not sit on his rights forever.

Taking into account all these factors, I do not consider that there was undue delay at the time application for judicial review was made. The trial judge fell into error in this regard.

His Honour erred in law in holding that the appellant’s Constitutional rights are subservient to those of the Public Prosecutor in the exercise of his statutory functions.

“There is a further reason why the Court may refuse relief. The Plaintiff claims that the fundamental encroachment on his Constitutional rights were incurable, that the Court should direct the Commission to take no further steps in regard to the allegations referred. Effectively that they should be set aside and forgotten. That is not appropriate.

All leaders have the rights bestowed on them by the Constitution. But the People, the bestower of those rights have greater right. In SC Ref 2 of 1992 by Public Prosecutor [1992] PNGLR 336 the Supreme Court said:

‘In the light of the circumstances of recent years involving in particular member of Parliament, supported by the specific provisions of Constitution s 27, we accept the referrer’s submission that the entire thrust and the primary purpose of the Code is ‘to preserve the people of Papua New Guinea from misconduct by its leaders’.

We accept also that more specifically, the purpose of the Code is to ensure as far as possible that the leaders specified in Constitution s. 26 do not offend in the various ways prescribed by the provisions of Constitution s. 27, and that these provisions are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place.’

Bearing this in mind the Courts wll not readily order that allegations of misconduct against a leader be set aside unheard because of procedural error in the investigation process particularly where the normal and appropriate remedies for such errors have been prejudiced by the leaders own conduct.

What then is the Plaintiff’s position. Even without the remedies sought in this review, the Plaintiff has all the details necessary for him to formulate a defence. He has not only the allegations of the Commission he has also the Statements of Reasons and full disclosure of the Commission’s file as a result of these proceedings.”

I agree with counsel for the respondent that this ground of appeal is based on a misinterpretation of the trial judge's reasoning. His Honour was considering a submission by counsel for the appellant that was based on the breaches of the appellant’s constitutional rights, the proceedings against the appellant should be set aside and no further steps should be taken in respect of them. The trial judge was referring to the right of the appellant within the whole purpose of the leadership code. This was a relevant consideration in exercising its discretion whether to grant the orders sought by the appellant. In my view the trial judge did not fall into error in doing so. I would dismiss this ground of appeal.

Having found that there was undue delay, the trial judge had to consider whether the granting of the relief sought would have caused substantial hardship, or substantially prejudiced the rights of any person or would be detrimental to good administration.

In his judgment, the trial judge did not consider any question of substantial hardship nor did he consider any substantial prejudice to the rights of the parties.

Did he consider whether grant of relief would be detrimental to good administration? The trial judge did not discuss directly what is good administration in the context of this case and how a grant of relief in this case would be detrimental to such administration. However, he may have been referring to this issue when he said:

“The delay has also rendered the appropriate relief of ensuring a hearing a nugatory. The claim of bias and malice, and bias spurious though that was, precluded referral back to the Commission for ‘re-hearing’ but that would not preclude a referral to an alternative authority appointed under s. 28 of the Constitution or s. 19 of the ODRL. But because of delay even that course would be an exercise in furtility. Time has marched.”

The trial judge reached this conclusion on the basis that there was undue delay. However, I have reached the conclusion that the trial judge was wrong in finding that there was undue delay in making the application for judicial review.

What then is the practical result of allowing the appeal in respect of grounds 3 (d), (e), (f) and (h)? What remedial orders should be made in these circumstances? As I pointed out in ground 3 (g) of the Notice of Appeal, it is within the discretion of the Court as to what remedial orders it can make.

There are several questions to consider. Should the referral by the respondent be quashed on the basis of the grounds I have allowed? If the referral is quashed, should there be no further proceedings brought against the appellant? Or should the matter be referred back to the Ombudsman Commission to properly deal with the appellant in accordance with the law?

In respect of the first question, it is relevant to consider the right given to the appellant under s. 20 of the OLDRL. Under this provision, before a person can be prosecuted before a tribunal, the Ombudsman Commission must be of the opinion that “there is evidence of misconduct in office” (s. 20 (4) of OLDRL). This is analogous to a committal proceedings before a person is prosecuted for a criminal offence in the National Court. It follows from this that after a person is given an opportunity to be heard under s. 20 (3) of OLDRL, the Ombudsman Commission may be of the opinion that there is no evidence of misconduct in office. Under this procedure, a leader may exonerate himself and avoid having to be referred to a tribunal. Therefore any evidence of bias or lack of opportunity to be heard at this point is a serious matter.

If the referral is quashed on the basis outlined above, should the matter be sent back to the Ombudsman Commission or should an order be made not to bring any further proceedings against the appellant?

The trial judge considered the latter question in some detail. He concluded that the errors committed would be procedural errors and they do not deal with the alleged offences on their merits. He further concluded that it would not be proper to make an order that would prevent any further proceedings in the future.

The Leadership Code is an important law which must be administered effectively and speedily to protect the people and the nation from improper and corrupt conduct of people in leadership positions.

If the referral is quashed and the matter is sent back to the Ombudsman Commission, the Commission may have to appoint an Investigating Authority under s. 19 of OLDRL to deal with the appellant in view of the fact that the Commission has been found to be bias. This will also mean hardship to the appellant who will have to bear extra cost to defend the proceedings again from the beginning.

It is also relevant to bear in mind that the life of the Parliament is about to come to an end and the next election will be held in mid 1997. The time has marched on.

In balancing all these considerations, I have reached the conclusion that it would be in the interest of everyone that this Court should not quash the referral but allow the Public Prosecutor to proceed with the charges before a Leadership Tribunal. In coming to this conclusion I have considered the four new charges that were included in the referral and bias which has been established on the part of the Commission. These procedural errors only affect the rights of the appellant at a preliminary stage only and does not affect the substantive rights which will be determined by the Leadership Tribunal. In relation to the four new charges, the appellant by now has ample opportunity to consider the charges and he will no doubt prepare his defence at the tribunal hearing. In relation to bias, again he will be able to defend all the charges before the Tribunal and any bias by the respondent will not have any impact on the Tribunal which is differently constituted.

In my opinion, this is the most appropriate order to make in all the circumstances. I would further order that the Tribunal in this matter should proceed as speedily as possible.

LOS J: I have read the draft judgments of Kapi DCJ and Injia J. As I was a member of the Court in Albert Karo v Ombudsman Commission SCA 89 of 1995, I am aware of the circumstances leading to the appeal and the arguments advanced before the Court. Therefore in so far as ground 3 (a) of the appeal is concerned, I agree with Kapi DCJ’s judgment on this aspect. I also agree with His Honour’s reasons leading to the conclusions he has reached on grounds 3 (c), 3 (d), 3 (e), (g), (h) and (i). However in relation to the ground 3 (f), I agree with Injia J on his reasons and conclusions except as to the remedial action. I would uphold the appeal, quash the referral and remit the matter back to the Ombudsman Commission. I consider that in view of the allegation of bias, the matter be brought before an independent authority appointed under section 19 of the Organic Law on the Duties and Responsibilities of Leadership for an investigation and examination and possible referral.

INJIA J: The Appellant appeals from a decision of the National Court made on 4th August, 1995 in which the Court dismissed the Appellant’s application for judicial review of the Respondent’s decision (the “Commission”) to refer to the Public Prosecutor for prosecution thirty-one (31) allegations of misconduct in office pursuant to Sections 19 (1), 20 (4) and 27 (1) of the Organic Law on the Duties and Responsibilities of Leadership Ch No 1 (hereinafter abbreviated OLDER).

(a) His Honour erred in law in holding that the Supreme Court’s decision in Karo’s case (Albert Karo v Ombudsman Commission of PNG SCA 89 OF 1995) did not confirm that the Respondent was under a duty to notify the Appellant of its intention to investigate certain allegations against him.

(b) His Honour erred in law, having held that the Respondent had breached its duty under Section 20 (3) of the Organic Law on the Duties and Responsibilities of Leadership, and having held that this amounted to an error going to jurisdiction, in holding that to include the Appellant’s defence in the referral document was “not a statutory obligation”.

(c) His Honour erred in fact and law in holding that the Respondent had not acted ultra vires because the Appellant had no right to have the “whole of the investigation file served on him”, in that it was no part of the Appellant’s case that he had any such right.

(d) His Honour erred in fact and in law in holding that the Respondent’s referral to the Public Prosecutor contained no new charges; and that the Respondent was entitled to rely on unnotified charged “so long as they arose out of the same basic allegations”; in that the evidence before the Court established that the referral did contain new charges; and the Respondent had no such right to refer unnotified matters to the Public Prosecutor.

(e) His Honour erred in holding that there was “no evidence” that the referral document contained new charges.

(f) His Honour erred in purporting to “balance” the “emotive and sensationalist language” of the Respondent’s referral document against the Appellant’s “equally intemperate and unfounded allegations of malice”; in that judgement on the issue of the Respondent’s bias and/or malice should have been unaffected by the appellant’s legal contentions, which were irrelevant to the function His Honour was required to perform.

(g) His Honour erred in law in holding that errors going to jurisdiction, and amounting to a nullity ab initio, were not void but merely voidable at the Court’s discretion.

(h) His Honour erred in fact and in law in holding that there had been undue delay in the appellant’s application for judicial review.

(i) His Honour erred in law in holding that the Appellant’s constitutional rights are subservient to those of the Public Prosecutor in the exercise of his statutory functions.

I have read the draft judgment of Kapi Dep CJ on the question of leave to appeal and I agree with his reasons and conclusions.

At the hearing ground (b) was abandoned by the Appellant. I will deal with grounds (a), (c), (f) and (i) separately whilst I deal with grounds (d) and (e) together and grounds (g) and (h) together.

But before considering the grounds of appeal, it is necessary to briefly set out the sequence of events leading up to the application for judicial review, in particular the procedure employed by the Commission to refer the Appellant. Between 30th July, 1992 and 30th August 1994, the Appellant was the Minister for Village Services and Provincial Affairs in the National Government. On 8th June, 1994, the Appellant was notified in writing, by the Commission, pursuant to OLDRL S. 20 (3), of eleven (11) allegations of misconduct in office and informed him of his right to be heard. The notification preceded about sixteen (16) months of investigations into various complaints against the Appellant, carried out by the Commission which commenced on or about 18th November, 1992. Prior to the said notification of 8th June 1994, the Appellant was not notified or informed by the Commission of its intention to investigate those allegations. In the notification letter, the Appellant was given 21 days to contact the Commission and to respond to the allegations failing which the Commission would proceed with its investigations in his absence and take whatever action was necessary under the Constitution and the OLDRL. The letter also said if the Commission was satisfied that a prima facie case had been established by the evidence and that “you are guilty of misconduct in office, it is obliged by Section 29 (1) of the Constitution and Section 17 (d), 20 (4) and 27 (1) of the Organic Law on Duties and Responsibilities of Leadership to refer the matter to the Public Prosecutor for prosecution before a Leadership Tribunal”. This was followed by two letters to the Commission by the Appellant dated 21st and 28th June, 1994 respectively, in which he sought an extension of a month to reply to the allegations. On 1st July 1994 the Commission granted the extension sought to 15th July 1994. On 13th July 1994 the Appellant, in writing, responded and denied each of the said allegations giving brief reasons in respect of some of them. On 15th July 1994 the Commission advised the Appellant of the receipt of his reply and told him “The response to each item will be considered and deliberated upon in due course.” On 29th December 1994, the Commission informed the Appellant, in writing, pursuant to OLDRL S. 20 (2), of its decision to refer certain allegations to the Public Prosecutor for prosecution. The allegations contained in the Commission’s letter of 29th December 1994 were the same allegations contained in the Commission’s letter to the Appellant of 8th June, 1994.

On 7th January 1995 the Commission referred 31 allegations of misconduct in office to the Public Prosecutor. It is this referral which the Appellant sought a review of by the National Court. Among the grounds of review, the principal grounds were that the Commission failed to notify the Appellant of the investigations as required of the Commission by Section 17 (1) of the Organic Law on Ombudsman Commission (abbreviated OLOC), and that the Commission failed to afford the Appellant reasonable opportunity to be heard on the initial allegations set out on in its letter of 8th June 1994. Another ground was that the Commission failed to afford reasonable opportunity to the Appellant in relation to some 20 or so allegations set out in the referral of 7th January, 1995 which the Appellant claimed were “new” allegations which were not contained in the Commission’s letter of 8th June 1994. In the National Court, the Commission argued that these twenty (20) allegations were not new because they related to or arose from the initial allegations. The National Court decided all the issues in favour of the Commission.

His Honour erred in law in holding that the Supreme Court’s decision in Karo’s case (Albert Karo v Ombudsman Commission of PNG SCA 89 of 1995) did not confirm that the Respondent was under a duty to notify the Appellant of its intention to investigate certain allegations against him.

This ground of Appeal seeks to overturn the Court’s decision on the basis that His Honour erred in its interpretation of the Supreme Court’s decision in Karo’s case and failed to apply the Supreme Court’s ruling in relation to OLOC, S. 17 (1) which was binding on His Honour. It is submitted for the Appellant that the ruling in Karo’s case bound His Honour to hold that the Commission’s acts were ultra vires OLOC S. 17 (1), which is a mandatory obligation, because it exceeded its jurisdiction in failing to inform the Appellant of the nature and details of its investigations. On the other hand, the Commission submits that the trial Judge did not err in refusing to follow Karo because His Honour’s remarks were obiter dictum. In any event, the Commission submits, the ruling in Karo’s case was made without considering all the relevant provisions of the Constitutional Laws, in particular OLDRL S. 3 and OLOC S. 3. Therefore, the Commission seeks a review of the ruling in Karo’s case and if necessary to over-rule it.

In Karo’s case, it was the Commission’s decision pursuant to Constitution S. 27 (4) to issue a direction to Mr Karo to vacate a residential property which was subject of review. The direction followed 6 months of investigation by the Commission into the matter without notifying Mr Karo. The Supreme Court after examining the relevant constitutional and Organic Law provisions enunciated the following substantive principles:

“Reading then these several specific provisions plus the totality of the relevant provisions referred to, the following propositions are, in our view, to be enunciated:

(1) By virtue of S. 17 (1) of the Organic Law on the Ombudsman Commission, the Commission is under a duty to inform any person that the Commission intends to make investigation of in relation to any matter within its jurisdiction. This notice can be in writing, or verbal. It is preferable of course for proof of the notice and the contents of it for the notice to be in writing. The notice needs to inform the responsible person of the intention to make the investigation, the nature of the investigation, the issues to be investigated and more importantly the reasons why it is proposed to make the investigation. This initial notice does not require that the responsible person be given a hearing at this stage.

(2) By virtue of S. 20 (3) of the Organic Law on the Duties and Responsibilities of Leadership “the person whose conduct is being investigated is entitled as of right to be heard by the Commission”. This is a mandatory duty as well, that in the course of the investigation, at an appropriate time to be determined by the Commission in its judgement, prior to any report or decision being made, the person whose conduct is being investigated shall be entitled to be given a hearing by the Commission. This clearly envisages that at a particular point in time in the course of the investigation when the Commission has obtained some information pertaining to the conduct of the person being investigated, considered to be sufficient by the Commission, to then give the person responsible an opportunity to be heard in relation to the issues being investigated.

It must be clear that this right to be heard is distinct from the right to be informed of the Commission’s intention to make the investigation under S. 17 (1) of the Organic Law on the Ombudsman Commission.

Again we say that this right to be heard need not be necessarily in person orally before the commission. It can be facilitated quite satisfactorily in writing as long as the person whose conduct is being investigated is furnished all the necessary documents and particulars of the investigation and any evidence, complaints and allegations that have been gathered in relation to his conduct, that he needs to be fully informed of, in order that his reply, response or explanation is to be considered adequate.

(3) By virtue of S. 20 (2) & (4) of the Organic Law on the Duties and Responsibilities of Leadership, if after an investigation the Commission is of the opinion that there is evidence of misconduct in office by the person investigated, and it is decided to refer the matter to the Public Prosecutor for prosecution before the appropriate Tribunal, the Commission shall inform the person affected of that decision before taking it.”

It is correct to say that the Supreme Court in Karo’s case did not consider OLOC, S. 3 and likewise OLDRL S. 3. Counsel appearing before the Supreme Court in that case did not refer to these provisions in argument either. His Honour considered these provisions and concluded that the Commission was not obliged to notify the Appellant of an intended investigation under OLOC S. 17 (1). I reproduce the pertinent parts of His Honour’s reasons below:

“The Commission relying on S. 3 of the OLOC denies any obligation in law to comply with S. 17 (1) of that act in Leadership Code investigations. It asserts that only the OLDRL is applicable and specifically the procedures of S. 20 which require no notice of investigation (SS. 17 (1) OLOC). This argument is compelling Section 3 of the OLOC states:

Except as provided by any other law, this law does not apply to the powers functions and duties of the Ombudsman Commission under Division III. 2 (leadership code) of the Constitution.’

That clearly excludes leadership code enquiries from OLOC and S. 3 of the OLDRL confirms this:

(1) This law is in addition to, and does not derogate, the provisions of the Organic Law on the Ombudsman Commission.’

That is clearly the reciprocal of S. 3 of OLOC. Subsections (2) goes on to confirm this:

‘2. The powers functions duties responsibilities conferred or imposed by this law are in addition to and do not derogate any other powers functions duties or responsibilities conferred or imposed on the Commission by any other law.’”

Both statutes came into operation on Independence day after adoption of the Constitution. They were thus intended to stand side by side. Clearly the OLDRL is not “any other law” intended to alter the provisions of the OLOC. Likewise as twin, standalone laws, S. 3 (2) of OLDRL cannot be claimed to alter the procedures of its own S. 20, or S. 17 of OLOC. It states that the OLDRL does not derogate OLOC. That is it accepts its provisions in full, including S. 3 of that law.

(a) That the Ombudsman was required as a matter of law to offer the Appellant a right to be heard before issuing a direction, the nature of which was to remove him and his family from his house.

(b) The admitted failure to provide the Appellant with an opportunity to be heard before issuing (such a) direction amounts in law to an action in excess of jurisdiction rendering the direction susceptible to review by the Courts.

Having determined those issues the Court moved to consider a model enquiry which included the provision for a notice of intention to investigate. It was certainly without the benefit of argument on both the S. 3’s of OLOC and OLDRL. Had it been, then there would have been a provision in respect of leadership code investigations. I am satisfied therefore there was no obligation under statute nor any under natural justice principles that the Plaintiff be notified of an intended investigation on this complaint therefore, there has been no impropriety. On this complaint therefore there has been no impropriety.”

It is submitted for the Commission that the two Organic Laws prescribe different procedural codes, depending on what particular aspect of its jurisdiction the Commission is exercising. It is submitted, an investigation into an alleged wrongful conduct by a Governmental body or an alleged discriminatory practice is conducted under the OLOC whereas an investigation of alleged or suspected misconduct in office by a leader is conducted under the OLDRL. The Commission then goes on to set out a schedule of comparative provisions in the two codes to demonstrate this point. It is submitted therefore that Karo was wrongly decided and should be over-ruled pursuant to its powers under Constitution, SCR. 2.9 (1). See SCA No 2 of 1992; The Leadership Tribunals [1992] PNGLR 336 at 340-341.

I have read the draft judgment of Kapi Dep CJ on this issue. Although I arrive at the same conclusions as the Deputy Chief Justice, I do so for slightly different reasons.

The functions of the Ombudsman Commission associated with its more traditional role as a government “watch-dog” is that it has powers to investigate a wide range of administrative activities of government departments and authorities and persons who hold positions in government departments and authorities. However, the power to investigate possible discriminatory practices and possible breaches of the Leadership Code by any leader in government are not normally part of the Commission’s traditional role. In other Commonwealth countries there exists separate anti-discrimination laws and tribunals or commissions to deal with discriminatory practices whereas in Papua New Guinea, we only have a general provision in the Constitution which guarantees the right to freedom of equality of citizens: Const. S. 55. (also see Discrimination Act Ch. 269 which creates offences for discriminatory practices which is prosecuted by the Secretary for Justice or by any person with the consent of the Minister for Justice). As for the Leadership Code, it is perhaps a unique code of conduct for leaders in Papua New Guinea which other countries may not have equivalent codes. One would therefore expect provisions for a separate institution to supervise and enforce the Code.

Both investigations for breaches of the Leadership Code and discriminatory practices are special and additional functions conferred on the Commission. This is made clear by the CPC in its Final Report dated 13 August 1994 when the CPC in para. 37, page 11/5 stated:

We recommend that the Commission should have a general jurisdiction similar to that possessed by Ombudsmen in other countries, but in addition it should have two specific areas of responsibility - one concerned with the supervision and enforcement of the Leadership Code which, in Chapter 3, we have recommended be incorporated as a schedule to the Constitution, and the other the enforcement of legislation prohibiting discriminatory practices.”

Whilst the CPC was of the view that alleged discriminatory practices of government departments or authorities are part and parcel of the Commission’s traditional role or general jurisdiction to investigate corrupt conduct, discriminatory practice being one, it was also of the view that the Commission was well suited to supervise and enforce the Leadership Code when it said at para. 35, p. 3/4:

35. We intend the Leadership Code to be more than mere directives. It should be morally and legally binding on “leaders”, and firmly enforced. It is for this reason that we have recommended that a particular, independent institution of government, the Ombudsman Commission (which in Chapter 11 we propose should be established) ought to have responsibility for overseeing the Code and seeing to it that leaders comply with its provisions. We have preferred not to recommend the establishment of a separate institution to carry out this role as we are opposed to any unnecessary multiplication of institutions of government.

It is our firm view that the Ombudsman Commission is particularly well suited to carrying out this role as its members should be people who themselves have complete integrity, and its procedures and powers can readily be adapted to this purpose. Experience in other countries has shown that Ombudsmen quite frequently come upon instances of corruption in the course of their investigations into administrative malpractices, so that we would anticipate that this additional role will mesh in quite well with its general jurisdiction.”

In relation to the commission’s procedures for enforcing the Code, the CPC said at para. 87-88, page 3/1:

The Ombudsman Commission has been given responsibility for the supervision and enforcement of the Code under the terms of our recommendations in this Chapter. We consider that in the interests of flexibility and the overall effectiveness of the Code, the Commission should be given power to make rules and publish guidelines concerning the conduct, financial and business affairs of leaders, their spouses and children, and to make provision in those rules and guidelines for exemptions from the provisions of the Code where such exemptions are permitted by the Code.”

The Commission should be in a good position to make these detailed rules and guidelines in the light of experience with the problems associated with the operation of the Code.

The CPC also recommended the following in relation to the procedures and powers of the Commission generally:

45. We believe it important that the Commission should have maximum flexibility in deciding the ways in which complaints are received and acted upon, the extent to which the Commission will investigate particular matters, and how often and to whom it distributes its recommendations. Informality should be a keynote of the Commission’s procedures if it is to gain the support of our people. We envisage that many complaints to the Commission will be made verbally and that there will be no charge for lodging a complaint with the Commission.

46. To ensure that no adverse recommendation or report about a person whose conduct is investigated by the Commission is made unless that person is given the opportunity to put forward his version of the relevant circumstances, we have recommended that the Commission be required to give that person a hearing before making a report or recommendation of that nature. This provision would apply in respect of all aspects of the Commission’s jurisdiction. It does not mean, however, that a person has a right to a hearing before the Commission simply because it has begun to make enquiries into his work or other activities. Such a requirement would unduly hamper the Commission’s work and would not be justified in our view, since many inquiries will not lead to any criticism of particular persons.” (my underlining).

Apart from these general statements, the CPC did not outline specific details of the investigative procedures to be employed by the Commission in relation to Leadership Code matters, discriminatory practices and other matters within its general jurisdiction.

How do these general statements of the CPC translate into the Constitution and the two Organic Laws? Under the Constitution, the Leadership Code attracts separate attention in Division III. 2 (Sections 26-31). Section 28 (1) allows for an Organic Law to provide for the Commission to be given jurisdiction to enforce the Leadership code. As for the Commission, Const. Division VIII. 2 (Sections 217-220) deal specifically with the powers and functions of the Commission. Section 219 (1) provides for the Commission’s functions in the following 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; or

(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; and

(v) any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or

(vi) any other body or person prescribed for the purpose by an Act of the Parliament,specified by or under an Organic Law in the exercise of a power of function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National goals and Directive Principles, the Basic Rights and the Basic Social Obligations; and

(b) to investigate any defects in any law or administrative practice appearing from any such investigation; and

(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

Const. S. 219 (7) provides for an Organic Law to make provision for the powers and procedures of the Commission in respect of any matter within its jurisdiction.

It could be said that the functions of the Commission under Const. S. 219 (a) and (and to some extent (b)) relate to the Commission’s general or traditional jurisdiction whereas the functions under (b), (c), (d) and (e) are special and additional functions. OLOC, s. 13 then goes on to expound the Commission’s functions in these terms:

For the purposes of Section 219 (1) (a) (functions of the Commission) of the Constitution the functions of the Commission, in addition to the functions specified in Section 219 (1) (a), (c), (d) and (e) (functions of the Commission) of the Constitution, are to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of:

(c) any other service or body referred to in Section 219 (a) (functions of the Commission) of the Constitution that the Head of State, acting with, and in accordance with, the advice of the National Executive Council, by notice in the National Gazette, declares to be a service or body for the purposes of this section.”

OLOC, S. 13 is a general jurisdiction provision which confirms the Commission’s jurisdiction conferred by Const. S. 219 (1) and goes further to expand the Commission’s functions under Const. S. 219 (a).

Section 17 (1) of OLOC is found among provisions under Part VI (Complaints and Proceedings). It provides:

“Before investigating any matter within its jurisdiction, the Commission shall inform the responsible person of its intention to make the investigation.” (my underlining)

Reading OLOC, S. 17 (1) with S. 13 and Const. S. 219 (1) together, it is clear that the Commission is required to inform “the responsible person” of its intention to investigate him in relation to “any matter within its jurisdiction” as set out in OLOC S. 13. Does “the responsible person” include a person covered by the Leadership Code? The phrase “the responsible person” is defined in OLOC, S. 2 but that definition does not specifically make reference to a person referred to in Const. Div. III. 2 (Leadership Code) and the OLDRL. The type of persons referred to in S. 2 are persons who would hold positions of responsibility in government departments, statutory bodies and local government bodies such as President or Chairman. Then OLOC, Part VI (Complaints and Proceedings) goes on to set out procedures for receiving complaints, investigations and reporting “the responsible person” to the appropriate authority.

Then there is OLOC, S. 3. The combined effect of OLOC SS.2 and 3 is that they remove the Leadership Code jurisdiction under Const. S. 219 (d), away from the enforcement procedure in the OLOC whilst leaving the special jurisdiction in S. 219 (b), (c) and (e) to the Commission to deal with under the OLOC in addition to the Commission’s general jurisdiction under S. 219 (a) as expanded by OLOC, S. 13.

The only exception under OLOC, S. 3 is “as provided by any other law”. The question is whether the OLDRL falls within the meaning of “any other law”. If so, then what is the effect of OLDRL S. 3 (1)? On the first issue, my view is that the OLDRL comes within the meaning of “any other law” in OLOC, S. 3. It is clear from the wording of OLOC, S. 3 that the law being specifically referred to is Const. Div. III. 2 (Leadership Code) which does not include the OLDRL. Although the OLDRL is a constitutional law, it is a different form of law: Const. SS. 9, 11. The two laws are different in form, substance and manner of enactment or alteration.

Further, the intention in OLOC S. 3 is made clear when one compares OLOC 5.3 with OLDRL, S. 3. Both of these laws were passed at the same time by the Constituent Assembly on 15 August 1995 after the adoption of the Constitution. Whereas OLDRL S. 3 (1) specifically refers to the OLOC, the OLOC does not specifically refer to OLDRL. If the OLOC, S. 3 were intended to specifically exclude the application of the OLDRL, as distinct from the Constitution Division III. 2 (Leadership Code), it would have provided so. The significance of this is that the investigative procedures set out in the OLOC which are not provided for under Const. Div. III. 2 (Leadership Code) in so far as they pertain to Leadership Code matters, are intended to apply to the OLDRL. The OLDRL S. 3 is consistent with this interpretation in that it provides that the OLDRL “is in addition to and does not derogate the provisions of the Organic Law on the Ombudsman Commission”.

Having formed this view, the next issue is whether OLOC, S. 17 (1) is one of those provisions which could apply to investigations under OLDRL. Given the use of the phrase “any matter within its jurisdiction” one could argue that it refers to the Commission’s jurisdiction under Const. 219 and OLOC S. 13 which include Leadership code matters. But given the use of the phrase “the responsible persons” in OLOC, S. 17 (1) and the explicit definition of that phrase in OLOC, S. 2, I think S. 17 (1) applies to investigations conducted in relation to those matters within its jurisdiction under OLOC S. 13 and Const. S. 219 (1) with the exception of Const. Div. III. 2 (Leadership Code) and the OLDRL.

In arriving at this conclusion, the statutory interpretive exercise I have undertaken is not an easy one. It demonstrates the problems associated with the vesting of dual functions in single institution, the Commission, some of which are not traditionally associated with the functions of an Ombudsman and then providing a set of invetigative procedures in respect of all these functions which are similar in form and substance. This can create confusion such as the confusion apparent in Karo’s case in respect of OLOC, S. 17(1). Let me elaborate further.

Whilst there is two separate procedures under the two Organic Laws, the important point to remember is that the Commission, because of its position as a Government “watch-dog”, is given the duty to investigate the wrongful conduct of all public bodies or vested Governmental powers or functions vested in them by law as well as individual persons, whether they be Government leaders or ordinary Public Servants. The two Organic Laws therefore set out similar investigative procedures. Many of the provisions relating to investigation appear in identical terms and where they differ is in the end result of those investigations depending on the particular type of person or body targeted in the investigation: Compare OLDRL, Part III (Investigations) and OLOC, Part VI (Complaints and Proceedings). The comparative table of Sections provided by the Commission at the hearing of this appeal seeks to show a vast difference in procedure of the two Codes but in real terms, the investigative procedures may not be so different after all. Apart from producing this comparative table, the Commission has not demonstrated to this Court how it enforces the two Codes distinctively when it comes to carrying out its investigations. It could therefore be argued that the practical procedures, methods and tactics used to investigate a leader under the OLDRL or any other person who is not a leader or a governmental body under the OLOC are similar.

To read the two Organic Laws separately and distinctly could produce incongruous results. For instance, first, a person other than a leader such as an ordinary public servant of low standing in Government would have a right to be informed of the investigations being conducted under OLOC, S. 17 (1) whereas a Government leader such as a Minister has no right to be informed. It may be not fair to a leader who stands to face serious consequences flowing from the Commission’s investigations that he should not be informed while an ordinary public servant should be informed as a matter of right. Secondly, the Governor General, a Minister or the Leader of the Opposition or his Deputy, do not have the right to be informed by the Commission if they are being investigated for misconduct in office under the OLDRL whereas they would have such right if their conduct is being investigated under the OLOC: See Constitution S. 219 (1) (a) (iv). Thirdly, would not a referral of the Head of State, Minister or Leader of the Opposition or the Deputy Leader of the Opposition by the Commission to the Public Prosecutor under OLOC, S. 22, not amount to or equivalent to a referral under OLDRL, S. 27?

Having said all that, however, these and other problematic aspects of the two Organic Laws are matters of policy which I think they should best be left to the legislature to address. For these reasons, I would dismiss this ground of appeal.

His Honour erred in fact and law in holding that the Respondent had not acted ultra vires because the Appellant had no right to have “whole of the investigation file served on him”; in that it was no part of the Appellant’s case that he had any such right.

This ground of appeal arises out what the Appellant says the trial Judge misconceived the nature of the Plaintiff’s case in so far as the request for particulars of the allegations requested by the Appellant was concerned. The Commission submits that this ground is misconceived because it is of no consequence to the Appellant’s case. I agree with this submission. The Commission has further gone at length to address on whether the Commission was bound to provide the particulars of the evidence and necessary documents which supported the allegations to be served on the Appellant when it notified the Appellant on 29th December 1994. However, it is not necessary to consider those submissions under this ground of appeal. They may be considered when considering the other grounds of appeal. I would dismiss this ground of appeal.

(d) His Honour erred infact and in law in holding that the Respondent’s referral to the Public Prosecutor contained no new charges; and that the Respondent was entitled to rely on unnotified charges “so long as they arose out of the same basic allegations”; in that the evidence before the Court established that the referral did contain new charges; and the Respondent had no such right to refer unnotified matters to the Public Prosecutor.

(e) His Honour erred in holding that there was “no evidence” that the referral document contained new charges.

There was some dispute in the National Court as to whether the twenty (20) additional allegations contained in the referral were in fact new. At the hearing of the appeal, the Appellant identified five examples of “new” allegations to demonstrate that they were infact new. They are:

(i) Breach of S. 27 of the Constitution and S.13 of the OLDRL by failing to ensure that Henry Mokomo (properly conducted himself re: road plant purchase of K200,000);

(ii) Failure to ensure that Henry Mokomo ( properly conducted himself re: release of an additional K100,000);

(iii) Applied Rural Transport Development Program funds to (unlawful) purpose, including cash advance to Terry Takadol and other projects;

(iv) Applied K19,860.66 of Rural Agriculture Development funds to unlawful and improper purposes, including K5,990.39 to PTC and K8,000.00 to the K Community Group;

(v) Failure to declare shareholdings of himself and his wife in a number of companies, including five named corporations.

The Commission submits that these additional allegations are not new because they “have their genesis in the notice of the right to be heard issued in June (8th) 1994”.

I have read the draft judgment of the deputy Chief Justice in which he examines these five allegations and concludes that four of these five allegations were in fact “new”. I agree with his conclusions.

To put the matter to rest, I wish to examine the first of these five “new” allegations which relates to count No. 8 in the Referral document. In the letter of 08/06/94, the Commission specifically alleged that “you (the Appellant) wrote to the Minister for Transport Hon. Roy Yaki, that you intended to expand the sum allocated to your electorate on the purchase of road-making equipment” and that “you (the Appellant) wrote to Hon. Titus Philemon, Under-Secretary for Finance and Planning requesting him to waiver tender procedures...in order to use the funds to purchase the aforesaid equipment” (count No. 8). Then on the notification of referral letter dated 29/12/94, the Commission informed the Appellant that “you (the Appellant) failed to ensure, as far as within your lawful power, that Henry Mokomo, he being a person for whom you were morally, legally and by usage responsible, did not conduct himself in such a way that might be expected to give rise to doubt in the public mind as to your compliance with your duties as a leader under S. 27 of the Constitution, in relation to the waiver of tender procedures”. In the actual referral, similar allegations were made and particularised with reference to specific constitutional provisions breached. For instance, it said “the Hon. John Mua Nilkare did fail to publicly dis-associate himself from the above-mentioned actions of Mr Henry Mokomo contrary to the requirements of Section 27 (3) (b) of the Constitution...Thereby contravening Section 27 (3) (a), (b) and Section 27 (5) (b) of the Constitution”.

It is submitted for the Commission that it is sufficient for it to state the substance of the allegations or an outline of the charge; it need not “quote chapter and verse”. Such allegations, it is submitted, will sufficiently inform the person of what is alleged against him and give him a fair opportunity for him to reply to the charge adequately. The Commission relies on a series of overseas and local cases to support these submissions. Among them is a statement of Lord Denning in re: Pergamon Press Ltd [1970] 3 ALLER 535 where His Honour said:

“Seeing that their work and their report may lead to such consequences, I am clearly of the opinion that the inspectors must act fairly. This is a duty which rests on them, as many other bodies even though they are not judicial, nor quasi-judicial but only administrative. The inspectors can obtain information in any way they think best, but before they condemn or criticise a man they must give him a fair opportunity for correcting or contracting what is said against him. They need not quote chapter and verse. An outline of the charge will usually suffice.” (my underlining).

Whilst I am in agreement with the statement of this principle, I consider that it all depends on what is considered sufficient to be fair to the person concerned. And it depends on the “circumstances of the case, the nature of the inquiry, the rules under which the inquiry is acting, the subject matter being dealt with and so forth - one essential is that the person concerned should have a reasonable opportunity of presenting his case”: Russel v Duke of Norfolk [1949] 1 ALLER 109 at p 119 per Tucker LJ. It is therefore necessary to examine the relevant Constitutional provisions relating to the Appellant and his conduct which was the subject of the referred allegations in this case.

Under S. 26 of the Constitution, the Minister and his personal staff are separately subject to the Leadership Code. Pursuant to S. 26 (1) (a), a Minister is subject to the Leadership Code. Pursuant to S. 26 (1) (c), the personal staff of Ministers are also subject to the Leadership Code.

In practical terms, it is permissible for a Minister to be investigated and referred in respect of the misconduct of his personal staff insofar as the Minister authorised or approved of their misconduct or is aware of the misconduct but does nothing to remedy it or to disassociate himself: See Const. S. 27 (3) (a) and (b). Whilst it might be said that the Minister’s personal staff may usually not do anything not authorised by the Minister, there are those cases where they do act or write letters on behalf of the Minister without the full knowledge and approval of the Minister. In the latter situation, the Minister cannot be held responsible in which case, it is imperative to into the conduct of the personal staff and charge him separately under the Leadership Code. These important distinctions must be borne in mind by the Commission when it notifies the Minister under OLDRL, S. 20 (3).

In the instant case the evidence was that Mr Mokomo was a member of the Appellant’s personal staff namely, First Secretary. The allegations put to the Appellant on 08/06/94 (right to be heard letter) specifically alleged that the Appellant wrote the letter in his capacity as a Minister. No mention of Mr Henry Mokomo was made. Mr Mokomo’s name came up for the first time in the Commission’s notification of referral letter dated 29/12/95. This allegation was essentially new in form, substance and not legally permissible. The Appellant was not notified of this new allegation under OLDRL, S. 20 (3) hence his right to be heard was denied.

It is submitted for the Commission that there was no evidence produced by the Appellant to show that they were “new”. However, I am of the view that the Commission’s letter to the Appellant of 08/06/94 and the referral document which were before the trial Judge and which the Appellant relied on constituted the evidence before the Court. There was no other “evidence” which the Appellant could have produced before the trial Judge.

In this action, the Appellant claimed the Commission breached his constitutional right given to him under OLDRL, S. 20 (3) in respect of the five new charges. It is akin to a person claiming a breach of his Constitutional right by a law which he claims to be unconstitutional. In SCR No 2 of 1982, the Organic Law (on National Election Amendment Act 1981) [1981] PNGLR 214, the Supreme Court, per Kapi J said at p. 238:

“It would be sufficient for the party who alleges that a law is unconstitutional merely to prove that his right is infringed. He is only required to show a prima facie case. Where this is shown, then the onus is on the party who relies on to validity of the law to prove that it is within the limitation provided by the Constitution.”

The above principles can be applied to this case with appropriate modification. The Appellant in this case is merely required to prove that his right to be heard on the “new” charges were not accorded to him. He did that by satisfactorily demonstrating the breach, on the face of the record of the materials originating from the Commission’s office, which were in evidence before the trial Judge. By doing so, he established a prima facie case. I do not see what other evidence the Appellant would have placed before the trial Judge. The onus then shifted to the Commission to “prove”, if necessary, by producing evidence, that what it did was within the provisions of the Constitution and the two Organic Laws.

I consider that the trial Judge erred in holding that there was “no evidence” of fresh allegations in the referral. For these reasons, I would allow these grounds of appeal under both (d) and (e) in part, in respect of the four “new” charges.

His Honour erred in purporting to “balance” the emotive and sensationalist language” of the Respondent’s referral document against the Appellant’s “equally intemperate and unfounded allegations of malice”; in that Judgement on the issue of the Respondent’s bias and/or malice should have been unaffected by the Appellant’s legal contentions, which were irrelevant to the function His Honour was required to perform.

I find no evidence to support this claim. As regards malice, this was simply not pursued though it was a major and persistent allegation at the application seeking leave for this review and the basis of a sustained demand for full discovery. The Plaintiff infact has demonstrated he had no basis at all for charges of deliberate bad faith or deliberate wrong-doing on the part of the Commission.

The claims of procedural impropriety are insufficient to support the claim of bias. The evidence shows the Commission was intent on strictly following the OLDRL not giving notice of intention to investigate under S. 17 (1) of OLOC and the need to set out the defence in the referral is likewise not a statutory obligation. The failure to answer one request for particulars and the omission of the defence in the referral therefore indicate errors in procedure rather then any sinister or systematic ignoring of the Plaintiffs rights.

There remains the fact of a request for particulars ignored the actions of the staff, and emotive judgemental out of control language.

These do not advance the claim of bias either. Serving a leader at 10-20 pm after a 3 day search for him is not evidence of KGB tactics. The language of referral has been said to indicate an ‘out of control’ Commission. While the language may be emotive or sensationalist even, it may also be described as indicating - indignation.

If bias or bad faith are evidenced by such wording, the equally intemperate and unfounded allegations of malice and KGB tactics demonstrate the like on the part of the Plaintiff. I find no impropriety here.”

The Appellant’s submission before the Trial Judge were based on certain statements extracted from the referral document. They are:

“...that the Applicant ‘clearly acted for reasons of personal political gain’ (p.12); that his directions ‘were unconstitutional’ (p.12); that he caused funds to be misappropriated (p.13); that he ‘flagrantly disregarded the Constitution’ (p.13); that his conduct was ‘totally inexcusable!!’ (p.13); that his official requests were ‘grossly improper’ (p.35); that the plant purchase was ‘improper’ (p.35); and that he ‘deliberately misled Minister YAKI’ (p.35)...

Mr Mokomo’s conduct was ‘improper’ (p.36); and that Deputy Secretary SETAE and Secretary SAMANA were corrupt (p.71) were ultra vires S. 17(4)(b) of its Act; that the Applicant made a ‘limp-wrested attempt to justify his actions’ and that ‘the whole operation was a total con job’ (p.51); that he ‘must have known’ he lacked authority (p.52); that his conduct was ‘a flagrant breach’ of his duty (p.62); that ‘we are not surprised’ at certain alleged conduct of the applicant (56); that he made ‘pathetic attempts in parliament to justify his actions...pure waffle’ (p.56); that these were ‘some of the most serious examples of ministerial misconduct we have yet investigated’ (p.56); that the Applicant had ‘totally improper purposes’ and a ‘totally repugnant attitude’...motivated by ‘political self-aggrandisement’ (p.56); that he had ‘plundered the public purse, for reasons which were obviously corrupt’ (p.57); that the Applicant was ‘virtually given a licence to misappropriate funds’ (p.73); that ‘we strongly suspect (he) may have recklessly milked his private companies’ (p.80); that ‘we do not think it proper for our leaders to have such high levels of personal indebtedness’ (p.80); that the Applicant’s request was ‘grossly improper...he had absolutely no right’ (p.89); that ‘he may well have been charged with (a) criminal offence’ and ‘his actions were clearly unbecoming of a leader’ (p.89); that he will ‘deservedly be shamed’; that he was ‘motivated to...advance his political career...at the expense of the public purse so that he could be seen as a big man’ (p.90).”

I have checked the Appellant’s recitation of these statements against the referral document and confirmed that they do appear.

In order to fully understand the context in which some of these statements appear, it will suffice to set out one example. Counts No. 16-20 related to misuse of tied grants to various local and community governments. In relation count 18 which related to the alleged misuse of K250,000.00, the Commission referred to the Appellant’s attempt to explain to the Parliament during question time, as:

“His pathetic attempts in Parliament to justify his actions to Parliament put at its highest seems, to us, (the Commission), to be pure waffle.” (page 56).

“In conclusion we must say at the very outset that we regard Mr Nilkare’s actions as some of the most serious examples of ministerial misconduct we have yet investigated. We have arrived at this conclusion not merely because, as a result of his actions, vast amounts of public monies were applied to totally improper purposes but more because of his totally repugnant attitude that somehow the rest of Papua New Guinea should have to pay for his political self aggrandisement.

The history of this case shows that despite the awesome power Mr Nilkare enjoyed in government, persons such as Secretary Watangia were not prepared to sit idly by and watch him plunder the public purse, for reasons which were obviously corrupt.”

“For the reasons set out above, we are entirely satisfied, for the purposes of Section 29 (1) of the Constitution and Sections 17 (d), 20 (4) and 27 (1) (a) of the Organic Law on the Duties and Responsibilities of Leadership that there is a prima facie case that Mr John Nilkare, Member of Parliament has been guilty of misconduct in office in relation to counts numbered one to twenty nine of our Statement of Reasons...

If our allegations are substantiated by an independent tribunal then Mr Nilkare will deservedly be shamed in the eyes of his people. In asking ourselves why a leader with so much potential became embroiled in this mess, we could not but help noticing that to a large extent he was motivated to use his powerful position as a party leader and minister in the Wingti government, to advance his political career, and those of his associates and party members, at the expense of the public purse, so that he could be seen as a big man in the eyes of his electorate and political associates...(p. 90)

Let those leaders who naively believe that they can misuse public funds be warned - continue to do so at your own peril!!

In the interest of justice, and good leadership, we now urge the Public Prosecutor to quickly consider our statement of reasons, and decide his course of action, as expeditiously as possible, in accordance with our Constitution and Organic Laws...(p. 91)

This ground of appeal is broadly worded in such a way as to raise questions concerning the malice or bias of the Commission in its entire investigations. Whilst I do not think the issue of malice is sufficiently demonstrated by these statements, I do think some of these words and phrases are indicative of ‘bias’.”

The rule against bias is part of the principles of natural justice adopted under Const. SS. 59 and 60 which provides:

(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.

(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.

In the development of the rules of the underlying law in accordance with Sch. 2 (adoption etc, of certain laws) particular attention shall be given to the development of a system of principles of natural justice and of administrative law specifically designed for Papua New Guinea, taking special account of the National Goals and Directive Principles and of the Basic Social Obligations, and also of typically Papua New Guinean procedures and formats of organization.”

The principles of natural justice apply to the Commission: Ombudsman Commission v Donohoe [1985] PNGLR 348.

A decision by the Commission to refer a leader made under the OLDRL is made in “its deliberate judgment” where there is evidence of misconduct in office by a leader: OLDRL, S. 17 (d). As such, the principles of natural justice apply to the Commission “only to the extent that the exercise of (its) judgment must not be biased, arbitrary or capricious”: Constitution, S. 62 (1). Pursuant to Constitution, S. 62 (2), the Commission’s decision to refer a leader in its “deliberate judgment” is justiciable to the extent provided by Constitution, S. 62 (1), that is, the Court may review its action based on the grounds of denial of natural justice on the grounds of the decision being, inter alia, “biased”.

The whole concept of an action being not “biased” is entailed in the principle of fairness. The principle of fairness in natural justice has a broad expanded meaning and the scope and ambit of the principles are never limited. I do not see how the words “biased”, in Constitution, S. 62 (1) can be given a narrow meaning. All Constitutional provisions are intended to be read as a whole and given their fair and liberal meaning: Constitution, Sch. 1.5. Also see Ombudsman Commission v Donohoe, ante.

The Const. S. 59 does not stipulate any test for “bias” but leaves it to the Courts to define and develop the principles. In this jurisdiction, the Courts in particular, the National and Supreme Courts have developed some principles relating to “bias” in the context of judicial or quasi-judicial proceedings and administrative tribunals but not specifically in relation to administrative investigative bodies.

At common law, there are no clear tests of bias in respect of judicial or quasi-judicial proceedings. The tests appear to range between “actual bias”, “reasonable suspicion, of bias”, “real likelihood of bias”, or “substantial possibility of bias”. A statement of these tests appear in D Smith, Judicial Review of Administrative action [3rd Edn; 1977] at p. 563 as follows:

“A more common formulation of the test is: Would a member of the public, looking at the situation as a whole, reasonably suspect that a member of the adjudicating body would be biased? Another common formulation is: Is there in fact a real likelihood of bias? There is no need, on either formulation, to prove actual bias; indeed, the courts may refuse to entertain submission designed to establish the actual bias of a member of an independent tribunal, on the ground that such an inquiry would be unseemly. In practice the tests of “reasonable suspicion” and “real likelihood” of bias will generally lead to the same result. Seldom indeed will one find a situation in which reasonable persons adequately apprised of the facts will reasonably suspect bias but a court reviewing the facts will hold that there was no real likelihood of bias. Neither formulation is concerned wholly with appearances or wholly with objective reality. In ninety-nine cases out of a hundred it is enough for the court to ask itself whether a reasonable person viewing the facts would think that there was a substantial possibility of bias.” (my underlining).

In relation to judicial proceedings, the Supreme Court in Kavali v Hohoi [1986] PNGLR 324 at 337-339, per Barnett J applied the test of “reasonable suspicion that the Magistrate convicted the appellant because of bias”.

In Boateng v The State [1990] PNGLR 342 applied the “reasonable suspicion” test laid down in RV Liverpool City Justices; Ex Parte Topping [1983] 1 WLR 119 at 123; [1983] 1 ALLER 490 at 494 where the Court said:

“Would a reasonable and fair-minded person sitting in a Court and knowing all the relevant facts have a ‘reasonable suspicion that a fair trial for the appellant was not possible’?”

In relation to proceeding of administrative tribunals, such as a Leadership Tribunal established under the OLDRL, in Diro v Amet, unreported, unnumbered National Court Judgment, OS.No 189/91, Hinchliffe J, whilst reviewing the proceedings of the Leadership Tribunal chaired by Amet J, adopted and applied the “reasonable suspicion” test.

In relation to purely administrative investigative bodies, the issue of bias has not been raised in the Courts before in this jurisdiction. Some principles of common law appear to favour the view that they are under no duty to be unbiased or unfair towards the person investigated. This is demonstrated by a classic statement in Wiseman v Borneman [1971] AC 249 at p. 399 which says:

“(It may) make findings of fact which are very damaging to those whom they name. (It) may secure some, it may condemn others, (it may) ruin their reputation or careers. (Its) report may lead to judicial proceedings. It may expose persons to criminal prosecutions or civil actions.”

In the present case, we are not concerned with a purely administrative investigative body. We are concerned with an independent Constitutional body whose powers and functions are governed by the Constitution and the OLOC and OLDRL. The Commission is required by the Constitution to be fair or “unbiased” in its deliberations. As such, the common law principles in cases like Wiseman v Borneman have little or no relevance and application to the proceedings of the Commission. Whilst I have some sympathy for the view that the Commission would be expected to be critical of the conduct of the persons concerned in its investigation and reports, there is an over-riding duty to be fair. To put it in another way, the referral to the Public Prosecutor is the final product of its investigations. The Commission will have satisfied itself, in its deliberate judgment, that there exists a prima facie case of misconduct which is worthy of prosecution by the Public Prosecutor before the Leadership Tribunal. As such the referral will contain some information which will be critical of the conduct of the person referred. However, there are limits as to how far the Commission can go in its referral report. The Commission’s conclusions and opinions must be fair, objective and reasonable and supported by its factual findings and the evidence before it. The Commission must not make wild baseless and scandalous allegations. It must not make highly personalised accusations. It must not make sensational, emotive, insensitive and indignant statements which are likely or calculated to degrade the leader or unduly influence those for whom the report is prepared into making a decision in favour of the Commission’s findings. It must not exaggerate matters of minor significance or of little utility. The Commission must bear in mind that it is a Constitutional office of the people and it must act fairly and objectively. In other words, the Commission must not be biased.

The test of “bias” to be applied should be, in my view, the “reasonable suspicion” test. Although this test has been applied to judicial, quasi-judicial or administrative tribunals in this country, the same test should be applied to the Commission. However, because of the administrative nature of the Commission’s functions, I would think that the standard of “reasonable suspicion” could be much lower than the relatively high standard applicable to judicial, quasi-judicial and administrative tribunals.

In the present case, His Honour considered that the wording of the referral were “sensationalist” and “emotive” and an indication of “indignation”. His Honour then proceeded to consider the possible scenario that the wordings could be evidence of “bias and bad faith” but discounted them by the “equally intemperate and unfounded allegations of malice and KGB tactics” on the part of the Appellant.

In my view, whilst it may be permissible for the Commission to use phrases or words like “his directions were unconstitutional” and “he caused funds to be misappropriated”, that “his conduct was totally inexcusable”, or that “his official requests were grossly improper”; words and phrases like “totally-ignorant attitude-motivated by political self-aggrandisement”, that he had “plunged the public purse, for reasons which were obviously corrupt”, that “we strongly suspect (he) may have recklessly milked his private companies” are quiet clearly beyond the bounds of reasonable objectiveness and fairness. I agree with the trial judge that these and other similar words and phrases were clearly “sensationalist” “emotive” and an indication of “indignation” and evidence of bias. I consider that any ordinary Papua New Guinean reading the report would have reasonably suspected the Commission of bias. I am satisfied that the Commission’s bias towards the Appellant coloured its entire investigations.

I consider that the trial judge erred in discounting the Appellant’s conduct against the Commission’s conduct because the Appellant had no duty to the Commission to be fair and objective in its allegations against the Commission.

“(g) His Honour erred in law in holding that errors going to jurisdiction, and amounting to a nullity ab initio, were not void but merely voidable at the Court’s discretion.”

“(h) His Honour erred in fact and in law in holding that there had been undue delay in the Appellant’s application for judicial review.”

Ground (g) is based on His Honour’s findings as to two jurisdictional errors committed by the Commission, first, that the Commission failed to respond to a request for particulars in respect of one of the allegations to enable a response and second, that the Commission failed to set out the Appellant’s response in its referral report. Ground (h) relates to His Honour’s refusal to grant the relief sought on the basis of these two jurisdictional errors because there was undue delay on the Appellant’s part in seeking the relief. His Honour found that the Appellant commenced the proceedings seeking review “literally days before the Leadership Tribunal was to commence hearing”.

I have already decided that the Appellant was not given his right to be heard on the four “new” allegations which were referred to the Public Prosecutor which was in breach of OLDRL, S. 20 (3). I have also decided that the Commission was biased towards the Appellant in its entire investigations contrary to the principles of natural justice. These are fundamental breaches of the Organic Law and the Constitution. The “bias” ground alone has the effect of voiding the entire referral. The jurisdictional errors referred to by the trial Judge are minor errors which on their own are not sufficient to vitiate the whole referral. Therefore, it is not necessary to consider the issue of delay under Order 16 r. 4 of the National Court Rules. However, as a matter of principle, I wish to say a few words on the question of delay.

The judicial review proceedings in this case were instituted pursuant to Order 16. Order 16 rule 4 provides:

(1) Subject to this Rule, where in any case the Court considers that there as been undue delay in making an application for judicial review the Court may refuse to grant:

(b) any relief sought on the application, if in the opinion of the Court, the granting of the relief would be detrimental to good administration.”

The Commission has produced a chronology of events which occurred between the letter of 8/6/94 and the commencement of proceedings on which occurred on 23/5/95 to show that the Appellant was aware of the procedural errors as early as 08/06/94 and failed to act promptly in coming to Court. It is submitted that the Appellant and his Lawyer wasted time by making futile representations to the Commission and the Public Prosecutor and the delay in doing these things were not good reasons explaining the delay.

A close examination of the sequence of events shows that the judicial review proceedings were commenced some eleven (11) months after he was notified of his right to be heard on the allegations on 08/06/94, about 4 months 14 days after he was notified of the referral which occurred on 29/12/94, about one month after the Public Prosecutor referred the allegation to the Leadership Tribunal and some 10 days before the Tribunal commenced its proceedings.

Under Order 15 r. 4 (1), the notion of “undue delay” must be considered together with the issue of whether the granting of the relief would be detrimental to good administration. Each case must depend on its own circumstances. In the case of an elected leader, it is of vital importance that the judicial review proceeding be commenced promptly after the leader is notified of the Commission’s intention to refer under OLDR, S. 20 (2) & (4). It is in the public interest that once a referral is made, the prosecution of an elected leader, if the Public Prosecutor so decides, must occur promptly. Elected leaders of the National Parliament have a limited term of five (5) years in office. Ministers of Government may have a shorter term in office as Ministers because they hold office at the pleasure of the Prime Minister of the day. No time should be wasted or soaked up by a leader or his lawyer or agent in advancing futile representations to the Commission after it has decided to refer. I say futile because the Commission in its deliberate judgment would have already formed an opinion as to a prima facie case of misconduct and it is unlikely that it will change its mind. And once it has referred the matter to the Public Prosecutor, it ceases of jurisdiction. The matter then becomes a prosecution matter. Again, a person referred to the Public Prosecutor should not make futile representations to the Public Prosecutor. The Public Prosecutor is not subject to external control or direction by any person in the exercise of his prosecutorial discretion: Constitution, S. 176 (2). It is contrary to the principles of good administration for a leader to delay the prosecution of his case by making futile representation to the Commission and the Public Prosecutor in the circumstances knowing that he has no legitimate expectation of being heard by the Commission or the Public Prosecutor.

In the instant case, I am unable to conclude if the representations made by the Appellant to the Commission and the Public Prosecutor were deliberately designed to soak up time and cause delay. On the face of it, there seems to be genuine representations, but perhaps in ignorance of the futility of their representations. Indeed, the Commission and the Public Prosecutor were not persuaded one bit to drop the prosecution. And given the Commission’s substantive breaches of the Appellant’s rights under OLDRL S. 20 (3) in respect of the 4 new allegations and the Commission’s bias in respect of all the allegations, any delay by the Appellant becomes of little or no significance.

“His Honour erred in law in holding that the Appellant’s Constitutional rights are subservient to those of the Public Prosecutor in the exercise of his statutory functions.”

This ground arises from certain comments made by the trial Judge to the effect that that all leaders have the rights bestowed on them by the Constitution but the “people, the bestower of those rights have a greater right”.

In my view, this ground of appeal is misconceived because what is stated in the grounds of appeal is not exactly what the trial Judge said. Also His Honour was entitled to construe the Supreme Court’s statement of principle in SC Ref. 2 of 1992 by Public Prosecutor [1992] PNGLR 336 in the way he did.

In summary, I have dismissed all the grounds of appeal except grounds (c) and (d) in part, in respect of the four new charges and ground (f) in respect of bias. Whilst I agree with the Deputy Chief Justice that the Appellant has had notice of the four new charges as a result of this judicial review process, the same cannot be said of in respect of ground (f).

On the basis of ground (f) alone, I would have quashed the whole referral. The question is whether this Court should discharge the Appellant forthwith from any liability whatsoever in respect of the referred allegations or remit the matter back to the Commission to be re-investigated by an independent investigating authority appointed by the Commission under OLDRL, S. 19. Section 19 (1) provides that the Commission “may, where it is itself unable for any reason to conduct an examination or investigation referred to in Section 17, appoint one or more constitutional office-holders to carry out the examination or conduct the investigation and to report to it on the results of the examination or investigation”. Another option is whether inspite of the finding of bias, the matter should be allowed to proceed before the Leadership Tribunal. I would agree with Kapi DCJ that the matter should be allowed to proceed before the Tribunal.

Supreme Court of Papua New Guinea

Nilkare v Ombudsman Commission [1996] PGSC 2; SC498 (3 May 1996)