Re Public Prosecutor's Power to Request the Chief Justice to Appoint a Leadership Tribunal [2008] PGSC 48; SC1011 (29 August 2008)

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REFERENCE PURSUANT TO CONSTITUTION, SECTION 19;
PUBLIC PROSECUTOR’S POWER TO REQUEST
THE CHIEF JUSTICE TO APPOINT
A LEADERSHIP TRIBUNAL

CONSTITUTIONAL LAW – Powers and Functions of the Public Prosecutor in the referral of Constitutional Office-holders – Powers and functions of appointing authorities of various Constitutional Office-holders - Appointment process of appropriate Leadership Tribunals – Functions of Leadership Tribunal – Function of Public Prosecutor before Leadership Tribunals.

This was a special reference to the Supreme Court pursuant to s 19 of the Constitution, seeking the Court’s opinion on the process to be followed by the Ombudsman Commission in referring constitutional office-holders (COHs) for investigation under the Constitution and the Organic Law on the Duties and Responsibilities of Leadership.

1. Section 179 of the Constitution and s 7 of the Organic Law on Guarantee of Independence of Constitutional Office-holders sets out four (4) distinct grounds of removal of law officers and other COHs. In respect of law officers (Chief Justice, Judges, Public Prosecutor, Public Solicitor and Chief Magistrate), the three (3) grounds of removal are for misconduct in office under Division III.2 (Leadership Code) of the Constitution, misbehavior and inability to perform the duties and functions of the office. In respect of other COHs (a member of the Ombudsman Commission, a member of the Electoral Commission, a member of the Public Services Commission, the Auditor-General and Clerk of the Parliament), Section 7 of the Organic Law on Guarantee of Independence of Constitutional Office-holders sets out the same grounds of removal plus a fourth ground which is for breach of term or condition of employment prescribed by an Organic Law.

2. In respect of misconduct in office under the Leadership Code, the procedure that applies to referral of COHs is distinct, as follows:

(2) The Public Prosecutor must decide to bring or decline to bring a proceeding. He must make this decision "within a reasonable time" after receiving the referral from the Ombudsman Commission. "Reasonable period" in s.29(2) of Constitution and s.28(3) of OLDRL means between one to four months except where special circumstances of a particular case requires a longer period.

(3) If the Public Prosecutor decides to bring a proceeding, the Public Prosecutor must refer the matter to the COH’s appointing authority to determine the question of removal. The appointing authority for the Chief Justice is the National Executive Council; the appointing authority for other Judges and other law officers is the Judicial and Legal Services Commission; the appointing authority of a member of the Electoral Commission is the Electoral Commission Appointment Committee; the appointing authority for a member of the Public Service Commission is the Public Service Commission Appointment Committee; the appointing authority for a member of the Ombudsman Commission is the Ombudsman Commission Appointment Committee; the appointing authority for the Auditor-General is the National Executive Council and the appointing authority for the Clerk of Parliament is the National Executive Council.

(4) If the Public Prosecutor does not make his decision under s.177(b) of the Constitution "within a reasonable time", the Ombudsman Commission may refer the COH to his or her appointing authority to determine the question of removal.

(5) The COH’s appointing authority conducts its own investigations and determines whether the question of removal arises. If the COH’s appointing authority determines that the question of removal arises and it ought to be investigated, the appointing authority must–

(b) in respect of other COHs, it must request the Chief Justice to appoint the tribunal. The Chief Justice must appoint the tribunal as a matter of course.

(6) Upon appointment of the tribunal, the COH’s appointing authority must refer the matter to it.

(8) The tribunal must conduct due enquiry and investigate and determine the matter. Once the tribunal commences its enquiry it is under a duty to complete the inquiry.

(9) In conducting its enquiry, the tribunal must first determine that it has jurisdiction to deal with the matter. Matters going to jurisdiction include matters concerning the appointment of members of a tribunal by a person authorized to make the appointment, the tribunal’s constitution by persons who are authorized by law to sit in the tribunal, whether the tribunal has jurisdiction in the subject matter of the inquiry and whether proper procedures prescribed by law have been followed in referring the matter to the tribunal.

(10) The tribunal is under a duty to conduct "due enquiry" and "investigate and determine" the allegations relating to the relevant ground of removal. Inquiry and investigation normally involves a hearing conducted in a fixed venue and date where parties are expected to attend. The tribunal sits to determine its own procedures and issues directions as to giving notice of the venue, date and time of the hearing, legal representation of the parties, and the manner and form in which parties appearing before it should be heard by way of giving evidence or making submissions. In general, the tribunal sits to receive material presented by the parties and determine the truth of the allegations.

(11) If the tribunal finds the COH guilty of misconduct in office, it must recommend a penalty of dismissal from office only to the COH’s appointing authority.

(3) In respect of investigations conducted by independent investigation authority appointed under s 19 of OLDRL, the independent investigating authority must refer the leader to the Public Prosecutor for prosecution. Upon receipt of such referral, the same steps set out in No (2) to (11) above applies.

(4) In respect of other grounds of removal (other than for misconduct in office), the process of investigation and referral of the COH to a tribunal is also distinct from that of other leaders. The Ombudsman Commission and the Public Prosecutor have no role to play in this investigation and referral process. The COHs’ appointing authority has jurisdiction to investigate the complaint. In conducting its investigations and determining the question of removal, it must, amongst other things, observe principles of natural justice. If the appointing authority is satisfied that the question of removal arises and it ought to be investigated, it must appoint the tribunal (in the case of law officers) or request the Chief Justice to appoint the tribunal (in the case of other constitutional office-holders) and refer the matter to the tribunal. Subject to appropriate modifications, the steps set out in No 2 (9) – (11) above also apply to tribunal appointed to investigate grounds of removal other than for misconduct in office under the Leadership Code.

Chris Haiveta v Paias Wingti (No. 3) [1994] PNGLR 197.
In re James Ekip Mopio [1981] PNGLR 416
Ombudsman Commission v Peter Yama (2004) SC747.
Paul Pora v Justice Sakora & two others [1997] PNGLR 1.
PLAR NO. 1 of 1980 [1980] PNGLR 326, SCR No. 2 of 1992
Sir Julius Chan v Investigating Authority into the Placer Pacific Ltd Share Issue [1988] PNGLR 43
SCR No. 1 of 1978; Re Leo Morgan [1978] PNGLR 460
SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151,
SCR No. 5 of 1980 Re Joseph Auna [1980] PNGLR 500.
Special reference by the Public Prosecutor [1992] PNGLR 336
SCR No. 4 of 1990: Re Meeting of Parliament [1994] PNGLR 141

N Yalo, for the Ombudsman Commission
C Manek, Public Prosecutor
A Jerewai, for the Judicial and Legal Services Commission
J Nonggorr, for Ombudsman Appointment Committee, Public Service Commission Appointment Committee, Auditor General Appointment Committee and Electoral Commission Appointment Committee
V Narokobi, for the National Executive Council.
V Eliakim, for the Clerk of the Parliament

1. BY THE COURT: This is a special reference by the Ombudsman Commission of Papua New Guinea ("OC"), under s 19 of the Constitution. The referrer seeks this Court’s opinion on six questions on the interpretation of certain constitutional laws relating to the process of investigation and prosecution of Constitutional Office-holders ("COH") for misconduct.

2. The Leadership Code consists of Part III. Division 2 of the Constitution and the Organic Law on Duties and Responsibilities of Leadership ("OLDRL"). The Leadership Code is a code of conduct for government leaders in Papua New Guinea. It defines the conduct of leaders, in both their public or official life and their private life, which is acceptable and upholding the integrity and respect for the public office that they hold and imposes duties on them to conduct themselves accordingly. It also prescribes acts which amount to breach of those duties and which constitute "misconduct in office", the penalty for misconduct in office and the procedure for dealing with complaints of misconduct in office.

3. The OC is entrusted with the responsibility of enforcing the Leadership Code. Since Independence, OC has investigated many leaders, most of them elected political leaders and appointed civil servants, and referred them to the Public Prosecutor (PP) for prosecution before Leadership Tribunals established under s 27 (e) of OLDRL. We will refer to this process as the ordinary referral process. Under this referral process, the process begins with OC. Upon receipt of a complaint or on its’ own initiative, OC investigates the matter and forms an opinion as to whether the leader is prima facie guilty of misconduct in office. If OC forms that opinion, it refers the leader to the PP "for prosecution before a tribunal" established under s 27 (e) of the OLDRL. OC’s opinion is accompanied by a Statement of Reasons. PP decides whether or decline to bring a "proceeding". If he decides to bring a proceeding, he requests the Chief Justice ("CJ") to appoint the tribunal. CJ appoints the tribunal which is constituted by a Judge and two senior magistrates. PP presents his own version of the allegations accompanied by OC’s referral and statement of reasons, before the tribunal and prosecutes the matter. The tribunal makes a determination as to guilt and if it finds the leader guilty of committing misconduct in office, it recommends a penalty to the Head of State. The Head of State acts in accordance with the recommendation. This process is clear and it is not questioned in this reference.

4. There are two instances in which two COHs have been investigated by OC at different times and referred to PP for prosecution before a Constitutional Office-holders Rights Tribunal appointed under s 27(7)(c) of OLDRL and s 4 of the Organic Law on Guarantee of Rights of Constitutional Office-holders ("OLGRICOH"). In both instances, the ordinary referral process was followed. Upon receipt of OC’s referral in each matter, PP requested CJ to appoint a tribunal. CJ appointed two separate tribunals under s 27(7)(c) of OLDRL and s 4 of OLGRICOH. Each tribunal was constituted by three Judges, one of whom was appointed Chairman. PP prosecuted each matter. In the first matter, the prosecution was successful. It resulted in a finding of guilt and recommendation on a penalty of dismissal from office. The recommendation was made to the Head of State who approved the recommendation. The COH was dismissed from office. The prosecution in the second matter was aborted after the tribunal disbanded itself saying it lacked jurisdiction to deal with the matter because it was not duly appointed. The circumstances of the second case closely resemble the circumstances of the hypothetical case set out in this reference. A number of important constitutional issues have arisen as a result of the second case and those are now the subject of this reference.

5. There were six questions referred but two of them were not pursued at the hearing. The remaining four questions to be determined are:

(a) Do the provisions of Part III – Division 2 (Leadership Code) of the Constitution and the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) provide a distinct and complete process for investigating and prosecuting alleged misconduct in office arising from breaches of the provisions of those Constitutional Laws?

(b) Do Sections 179, 180 and 181 of the Constitution provide a process distinct from the Leadership Code and the OLDRL to investigate the issue of removal from office of the Chief Justice, a Judge (other than the Chief Justice) a Law Officer and the Chief Magistrate?

(c) Does Part III (Sections 3 – 9) of the Organic Law on the Guarantee of Rights and Independence of Constitutional Office-Holders (OLGRICOH) provides for a process distinct from the Leadership Code and the OLDRL to investigate the issue of removal from office of any other Constitutional Office-holder other than those referred to under question 1(b)?

(d) Can the Ombudsman Commission or other appropriate authority referred to under Section 28(1)(f) of the Constitution refer alleged misconduct in office by a Constitutional Office-holder to authorities other than the Public Prosecutor and an appropriate leadership tribunal referred to under Section 27(1) of the ORDRL?

(e) If the answers to Question 1(a), 1(b) and 1(c) are answered in the affirmative, is it proper to conduct investigations separately but simultaneously under any of the process?

(f) If the answers to question 1(a), 1(b) and 1(c) are answered in the negative, should an investigation under the Leadership Code and OLDRL await the conclusion of any investigation conducted under Sections 179, 180 and 181 of the Constitution and/or Part III (Sections 3 – 9) of the OLGRICOH?

(g) What is "reasonable period", referred to under Section 29(2) of the Constitution?

(a) Where the Public Prosecutor determines under Section 177(1)(b) of the Constitution that he should proceed with a matter relating to alleged misconduct in office by a Constitutional Office-holder referred to him by the Ombudsman Commission under the Leadership Code, does he have jurisdiction to:

(i) in the case of the Chief Justice; request the Head of State to appoint an appropriate leadership tribunal (referred to under Section 179 and 181 of the Constitution and Section 27(7)(a) of the OLDRL), acting with, and in accordance with, the advice of the National Executive Council to investigate the matter?

(ii) in the case of a Judge (other than the Chief Justice); the Public Solicitor; or the Chief Magistrate; request the JLSC to appoint an appropriate leadership tribunal referred to under Sections 180 and 181 of the Constitution and Section 27(7)(b) of the OLDRL to investigate the matter?

(iii) in the case of any other Constitutional Office-holder; request the Chief Justice to appoint an appropriate leadership tribunal referred to under Section 27(7)(b) of the OLDRL and Sections 1 and 4 of the OLGRICOH to investigate the matter?

(b) If the answers to Questions 2(a)(i), 2(a)(ii) and 2(a)(iii) are all answered in the affirmative, does the Public Prosecutor have jurisdiction to assist the appropriate tribunal in each case?

(c) If the answer to Questions 2(a)(i), 2(a)(ii) and 2(a)(iii) are all answered in the negative, is the Public Prosecutor obliged to refer the matters of alleged misconduct in office in each case referred to in Question 2(a) to the appropriate appointing authority.

QUESTION 3 – JURISDICTION AND POWERS OF APPROPRIATE LEADERSHIP TRIBUNALS

(a) Are the appropriate leadership tribunals referred to under Sections 179, 180 and 181 of the Constitution, Section 27(7) of the OLDRL and Section 4 of the OLGRICOH obliged to complete their investigations and make final determination of the referred misconduct by a leader?

(b) Do the appropriate leadership tribunals referred to under Sections 179, 180 and 181 of the Constitution, Section 27(7) of the OLDRL and Section 4 of the OLGRICOH, having been appointed according to law, have jurisdiction to question the validity of their own appointment and composition?

(d) What does "investigate and determine" required under Section 28(1)(g)(l) of the Constitution mean?

(e) Does the Tribunal established under Sections 179 and 181 of the Constitution have jurisdiction –

(i) investigate Leadership Code matters that might lead to dismissal from office?

(f) Does the Tribunal established under Sections 180 and 181 of the Constitution have jurisdiction –

(i) to investigate Leadership code matters that might lead to dismissal from office?

(g) Does the Tribunal established under Section 4 of the OLGRICOH have jurisdiction –

(i) to investigate Leadership Code matters that might lead to dismissal from office?

Does an appropriate authority other than the Ombudsman Commission referred to under Section 28(1)(g)(ii) and 28(1)(A) of the Constitution and Section 27(7) of the OLDRL have jurisdiction to refer a leader to the Public Prosecutor for prosecution under the Constitution and the OLDRL for alleged misconduct in office?

6. Counsel representing various parties made extensive submissions on the questions. In the course of submissions, several specific issues emerged relating to the meaning of "question of removal", the procedure to be adopted by appointing authorities to determine the question of removal and the role of PP and other lawyers before the leadership tribunal. The hearing was adjourned for counsel to research those issues and submissions were received later.

7. There is no question on the relevant constitutional law provisions which are applicable in this reference. There is also no question on the relevant principles on constitutional interpretation, composition of relevant appointing authorities for different COHs and appointing authorities for different tribunals. We deal with them first, as preliminary matters.

8. The questions in this reference involve consideration of provisions of three main constitutional laws which are cited in the reference which also affect provisions of other constitutional laws which are not cited in the reference. It is necessary to set out those provisions.

9. We start with the Constitution. Part III. Division 2 contains (ss 26 – 31 inclusive) of the Constitution contains the Leadership Code. Section 26 of the Constitution set out the leaders who are subject to the Leadership Code

10. Sections 27 – 29 of the Constitution are the main provisions and they are in the following terms:

(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associates with other person, as not—

(a) to place himself in a position in which he has or could have a conflict of interest or might be comprised when discharging his public or official duties; or

(c) to allow his public or official integrity, or his personal integrity, to be called into question; or

(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.

(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).

(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and

(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.

(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purpose of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.

(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or

(a) may give the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to who this Division applies, and of their families and associates, and in particular of interests in contracts with government bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and

(c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of a public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(e) may create offences (including offences by persons to whom this Division applies and offences by other persons) (Subsection (1)(d)); and shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h) may make any other provision that is necessary or convenient for attaining the objects of this Division."

(IA) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that –

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

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

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

(3) For purpose of Subsections (1)(g), (1A) and (2), "the appropriate authority" –

(ii) a person holding elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies, means the Head of State; and

(b) in relation to a person holding any other office to which this Division applies – means the appointing authority.

(4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice; and –

(a) no such proceedings are a bar to any other proceedings provided for by law; and

(b) no other proceedings provided for by law are a bar to proceedings under that paragraph."

(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g)(further provisions).

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead."

11. Section 177(1)(b) of the Constitution provides for the PP’s function under the Leadership Code as follows:

(b) To bring or decline to bring a proceeding under Div. III.2 (Leadership Code) for misconduct in office."

12. Section 178 – 181 of the Constitution provide for removal of law officers as follows:

A Judge, the Public Prosecutor, the Public Solicitor or the Chief Magistrate may, during his term of office, be removed from office only—

(a) for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or

(c) in accordance with Division III.2 (leadership code), for misconduct in office."

(1) If the National Executive Council is satisfied that the question of the removal from office of the Chief Justice should be investigated, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may—

(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and

(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

(2) If the tribunal reports that there are good grounds for removing the Chief Justice from office, the Head of State, acting with, and in accordance with, the advice of the National Executive Council, may, by notice in writing to the Chief Justice, remove him from office.

(3) The Prime Minister shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament, and shall also forward copies to the Judicial and Legal Service Commission."

(1) If the Judicial and Legal Services Commission is satisfied that the question of the removal from office of a Judge (other than the Chief Justice), the Public Prosecutor, the Public Solicitor or the Chief Magistrate should be investigated, it may—

(a) appoint a tribunal under Section 181 (constitution, etc., of tribunals); and

(b) refer the matter, together with a statement of the reasons for its opinion, to the tribunal for investigation and report to it.

(2) If the tribunal reports that there are good grounds for removing the Judge, Public Prosecutor, Public Solicitor or Chief Magistrate from office, the Judicial and Legal Services Commission, may, by notice in writing to the Judge, Public Prosecutor, Public Solicitor or Chief Magistrate, as the case may be, remove him from office.

(3) The commission shall send a copy of the notice, together with a copy of the report of the tribunal, to the Speaker for presentation to the Parliament."

(1) A tribunal for the purpose of Section 179 (removal of office of Chief Justice) or 180 (removal from office of other Judges, etc.) shall consist of a Chairman and two other members, each of whom must be –

(c) a Judge or former Judge of a court of unlimited jurisdiction of a country with a legal system similar to that of Papua New Guinea, or of a court to which an appeal from such a court lies.

(2) The tribunal shall make due inquiry into any matter referred to it without regard to formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice."

13. Part IX of the Constitution sets out provisions on COHs. Sections 222 and 223 provides for guarantee of rights and independence of COHs in the following terms:

"222. Other provisions relating to constitutional office-holders and constitutional institutions.

This part shall be read subject to any other provisions of this Constitution relating to particular constitutional office-holders or particular constitutional institutions.

(1) Subject to this Constitution, Organic Laws shall make provision for and in respect of the qualifications, appointment and terms and conditions of employment of constitutional office-holders.

(2) In particular, Organic Laws shall make provision guaranteeing the rights and independence of constitutional office-holders by, amongst other things—

(a) specifying the grounds on which, and the procedures by which, they may be dismissed or removed from office, but only by, or in accordance with the recommendation of, an independent and impartial tribunal; and

(b) providing that at the end of their periods of office they are entitled, unless they have been dismissed from office, to suitable further employment by a governmental body, or to adequate and suitable pensions or other retirement benefits, or both, subject to such reasonable requirements and conditions (if any) as are laid down by an Organic law.

(3) A constitutional office-holder may not be suspended, dismissed or removed from office during his term of office except in accordance with a Constitutional Law.

(4) The total emoluments of a constitutional office-holder shall not be reduced while he is in office, except—

(a) as part of a general reduction applicable equally or proportionately to all constitutional office-holders or, if he is a member of a State Service, to members of that service; or

(b) as a result of taxation that does not discriminate against him as a constitutional office-holder, or against constitutional office-holders generally.

(5) The office of a constitutional office-holder may not be abolished while there is a substantive holder of the office but this subsection does not apply to the abolition of any additional constitutional office created by an Act of the Parliament.

(6) Nothing in this section prevents the making by or under an Organic Law or an Act of the Parliament of reasonable provision for the appointment of a person to act temporarily in the office of a constitutional office-holder."

14. OLDRL sets out the procedure for investigating leaders under the Leadership Code by OC and OC’s appointment of other investigation authorities to investigate Leadership Code matters. Sections 17 – 19 state as follows:

For the purpose of this Law, the functions of the Ombudsman Commission, in addition to the functions specified in Section 27 (responsibilities of office) and 29 (prosecution of misconduct in office) of the Constitution and elsewhere in this Law, are—

(a) to examine or cause to be examined each statement lodged with it under Section 4; and

(b) to examined or cause to be examined each disclosure made under Section 15 or any subsequent disclosure relating to that disclosure; and

(c) to investigate, on its own initiative or on complaint by any person, or cause such an investigation to be carried out into any alleged or suspected misconduct in office by a person to whom this law applies; and

(d) to refer to the Public Prosecutor for prosecution by him before the appropriate tribunal referred to in Section 27 any case where, in its deliberate judgement, there is evidence of misconduct in office by a person to whom this law applies.

(1) Any person may make a complaint to the Ombudsman Commission concerning the alleged or suspected misconduct in office of a person to whom this Law applies.

(2) A letter to the Commission from a person in custody, confined in a hospital or in an institution under the control of a governmental body shall not be opened by any person other than a member of the Commission or a person authorized by the Commission, and the person in charge of the place where the correspondent is in custody or is confined shall make all facilities available that may be necessary to have the letter properly forwarded.

(3) The Commission shall investigate, or shall cause to be investigated, any complaint received by it unless, in its deliberate judgement, it decides not to do so because—

(a) the complaint is trivial, frivolous, vexatious or not made in good faith; or

(c) the subject matter of the complaint is outside the jurisdiction of the Commission; or

(4) No decision by the Commission to decline to investigate or to defer or discontinue, an investigation into the subject of a complaint affects the Commission’s power to inquire generally into a matter on its own initiative.

(1) The Ombudsmen Commission may, where it is itself unable for any reason to conduct an examination or investigation referred to in Section17, appoint one or more constitutional office-holders to carry out the examination or conduct an examinati9on 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.

(2) an examining or investigating authority appointed under Subsection (1) has, for the purposes of carrying out any examination or investigation in respect of which it is appointed, all the powers of the Commission necessary to enable it to carry out the examination or conduct the investigation including in the case of an investigation the powers referred to in Sections 20, 21, and 22."

15. Section 224 of the Constitution provides for the procedures of Constitutional Institutions and it states:

(1) Subject to this Constitution, Organic Laws and Acts for the Parliament shall provide for, the powers and procedures of constitutional institutions, and generally for facilitating the performance of their functions, duties and responsibilities.

(2) Subject to this Constitution, if no provision is made under Subsection (1), a constitutional institution—

(b) has all reasonable powers that are necessary or convenient for the exercise and performance of its powers, functions, duties and responsibilities."

16. Section 27 of OLDRL sets out the procedure for referral of COHs under the Leadership Code as follows:

(1) If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion—

(2) If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7).

(3) Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to refer it to the appropriate tribunal or the Ombudsman Commission is of the opinion that the matter has not been properly referred to the appropriate tribunal, the Commission may refer the matter, together with a statement of its reasons for its opinion, to the appropriate tribunal referred to in Subsection (7).

(4) The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(5) If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that—

(b) as permitted by Section 28(1A)) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection—some other penalty provided for by an Act of the Parliament be imposed.

(6) The tribunal shall announce its decision in public, and shall send a copy of the decision to the Speaker, for presentation to the Parliament, and to the National Executive Council and, in the case of a Judge, a Law Officer or the Chief Magistrate, to the Judicial and Legal Services Tribunal.

"the appropriate authority" means, in relation to a person to whom this Law applies, the authority to whom, in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him should be made;

(a) in the case of alleged misconduct in office by the Chief Justice—the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution; or

(b) in the case of alleged misconduct in office by a Judge, a Law Officer or the Chief Magistrate—the tribunal referred to in Section 180 (removal from office of other Judges, etc.) of the Constitution; or

(c) in the case of alleged misconduct in office by any other constitutional office-holder—the tribunal established by Section 3 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders; or

(d) in the case of alleged misconduct in office by the Prime Minister—a tribunal appointed by the Chief Justice, consisting of a Chairman and two other members, all of whom must be—

(ii) former Judges of the pre-Independence Supreme Court of Papua New Guinea; or

(iii) Judges or former Judges of an equivalent court of a country that has a legal system similar to that of Papua New Guinea;

(e) in any other case—a tribunal consisting of a Judge (who shall be the Chairman) and two senior magistrates appointed by the Chief Justice.

(8) The Judicial and Legal Services Commission shall determine the matters referred to in Paragraph (d)(iii) of the definition "the appropriate tribunal".(20)"

17. OLGRICOH applies to COHs other than law officers: see s 1 and 3 of OLGRICOH. Section 4 – 8 states as follows:

(1) There is hereby established a Constitutional Office-holders Rights Tribunal.

(2) The Tribunal shall consist of a Chairman and two other members, each of whom must be a Judge of the National Court."

(1) If the appointing authority is satisfied that the question of the removal from office of a constitutional office-holder should be investigated, it shall, by notice in writing to the Chief Justice, request that he appoint three Judges to be the Chairman and members of the tribunal to hear and determine the matter.

(2) Nothing in Subsection (1) prevents the Chief Justice from appointing himself as the Chairman or a member of the tribunal.

The tribunal shall make due enquiry into any matter referred to it without regard to legal formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice."

(a) for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or

(c) in accordance with Division III.2 (leadership code) of the Constitution, for misconduct in office; or

(d) for a breach or contravention of a condition of employment laid down in the Organic Law relating to the Office-holder."

1. The appointing authority shall, at the same time as it takes action under Section 5, refer the matter of the removal of the constitutional office-holder from office, together with a statement of the reasons for its opinion, to the tribunal for investigation and report back to it.

(2) If the tribunal reports that the constitutional office-holder should be removed from office, the appointing authority shall, by notice in writing to the office-holder, remove him from office.

(3) The appointing authority shall send a copy of the notice, together with a copy of the report of the tribunal to the Speaker for presentation to the Parliament."

18. Organic Law on Certain Constitutional Office-holders (OLCCH) applies to the PP, PS, CM, Clerk of Parliament and the A-G. It does not apply to Judges, a member of the OC, a member of EC or a member of PSC: see s 1 of OLCCOH. Sections 14 and 15 sets out special conditions of employment of those COHs as follows:

A person is not qualified to be, or to remain, a constitutional office-holder if he is—

(b) subject to Subsection (2), engage either directly or indirectly in the management and control of a corporation or other body of persons carrying on business for profit; or

(c) subject to Subsection (3), acquire by way of gift or otherwise, or use or hold in any other manner any interest in, any property in Papua New Guinea or solicit, accept or receive any other benefit in addition to his terms and conditions of employment.

(2) Nothing in Subsection (2)(b) prevents a constitutional office-holder from holding office in a professional body to which his qualifications are relevant.

(3) Subject to any Organic Law made for the Purpose of Division III.2 (leadership code), a constitutional office-holder who is a citizen may purchase, lease or otherwise acquire land in the same manner and subject to the same conditions as any other citizen."

19. Sections 4 of the Organic Law on Terms and Conditions of Employment of Judges (OLTCEJ) sets out special terms and conditions of employment of judges in the same terms as ss 14 & 15 of OLCCOH, supra.

20. The Organic Law on the Judicial and Legal Services Commission (OLJLSC) sets out the functions and procedures on meetings of JLSC. Section 9 sets out the procedure for meetings of JLSC. Section 9(7) states:

"(7) Subject to this Law, the procedures of the Commission are as determined by it."

21. The Organic Law on the Ombudsman Commission (OLOC) sets out procedure for receiving complaints and investigating matters which do not come under the Leadership Code. Section 16 is similar to s 18 of OLDRL, supra.

22. The principles of constitutional interpretation are well established in this jurisdiction. In discharging its function of interpreting constitutional laws, the Court must give paramount consideration to the dispensation of justice: Constitution, s 168(2). In seeking to do justice, it must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved. The Court must adopt an expansive and purposive approach rather than a narrow and restrictive: PLAR No. 1 of 1980 [1980] PNGLR 326, SCR No. 2 of 1992, Special reference by the Public Prosecutor [1992] PNGLR 336, SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Chris Haiveta v Paias Wingti (No. 3) [1994] PNGLR 192. As Lord Denning who is known in the common law jurisdictions as one of the architects of the purposive approach in Notham v Barnet Council [1978] 1WLR 220 at 228 said:

"In all cases now in the interpretation of statutes we adopt such construction as will ‘ promote the general legislative purpose" underlying the provision. It is no longer necessary for judges to wring their hands and say: "There is nothing we can do about it". Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it – by reading words in, if necessary – so as to do what the Parliament would have done, had they had the situation in mind" (adopted by Wilson J in PLR No 1 of 1980 [1980] PNGLR 326).

23. Where there is a gap in a constitutional law which would involve consideration of matters of public policy to fill, the Court must defer to the legislature to fill the gap: SCR No. 5 of 1980 Re Joseph Auna [1980] PNGLR 500. However there are those types of cases in which the law is not so clear but the Court may be required to give an interpretation in order to resolve the matter before it. If upon a fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament’s legislative function, the Court must not sign away from the task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function. In a case where there are a number of possible interpretation open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations.

Definition of "Constitutional Office-holder" and guarantee of independence of COHs.

24. The term "constitutional officeholder" is defined by s 221 of the Constitution to include a Judge, the Public Prosecutor (PP), Public Solicitor (PS), Chief Magistrate (CM) (hereinafter referred to as law officers), members of the OC, the Clerk of the Parliament, a member of the Public Services Commission (PSC) and the Auditor-General (AG). A "Judge" includes the Chief Justice (CJ) and the Deputy Chief Justice (DCJ): Sch. 1.2 of the Constitution and s 1 of the Organic law on the Terms and Conditions of Employment of Judges ("OLTCEJ").

25. COHs are guaranteed independence and security of employment: see s 223 of Constitution set out at para 13, ante.

26. The questions in this reference raise issues concerning the powers and functions of the appointing authorities for different COHs in the referral process of COHs and appointment and constitution of various tribunals. It is convenient at the outset to first set out the constitution of appointing authorities for different COHs and later to set out constitution of the tribunals. The appointing authorities for different COHs are:

(a) The Chief Justice: NEC, consisting of the Prime Minister and all Ministers of the State: s 169(1) of the Constitution.

(b) Other Judges: JLSC, comprising of the Minister for Justice as Chairman, Chief Justice, Deputy Chief Justice, Chief Ombudsman and a representative from Parliament: Constitution, s 170(2).

(h) Member of the Electoral Commission – Electoral Commission Appointment Committee (ECAC) consisting of the Prime Minister as Chairman, Leader of the Opposition, Chairman of PSC and Chairman appropriate Parliamentary Committee: s 5 of Organic Law on Provincial and Local-Level Government Elections.

(i) Member of Public Services Commission – Public Services Commission Appointment Committee (PSCAC) consisting of the Prime Minister as Chairman, Chief Justice, Leader of Opposition, Chief Ombudsman and leader of appropriate Parliamentary Committee: s 190(2) of the Constitution.

(j) Member of Ombudsman Commission – Ombudsman Appointment Committee (OAC) consisting of the Prime Minister as Chairman, the Chief Justice, Leader of Opposition, Chairman of appropriate Permanent Parliamentary Committee and Chairman of PSC: see s 217(2) of Constitution.

27. It is also convenient to set out the appointing authority for different tribunals for different category of leaders including COHs. There are five different tribunals for five different category of leaders as follows:

(a) Chief Justice – The Head of State acting in accordance with a decision of the NEC, appoints the tribunal. The tribunal consists of three judges or former judges, one of whom is the Chairman: see ss 178, 179 and 181 of the Constitution, s 7 (7)(a) of OLDRL.

(b) Other judges, PP, PS & CM (includes Attorney General: see s 156 of the Constitution and s 27(b) of the OLDRL) - the JLSC appoints the tribunal. The tribunal consists of three judges or retired judges, one of whom is the Chairman: see ss 178, 180 and 181 of the Constitution.

(c) Auditor-General, member of PSC, member of OC, Member of Electoral Commission, Clerk of the Parliament - The Chief Justice appoints the tribunal consisting of three judges, one of whom is the chairman: see s 27(7)(c) of OLDRL, s 7 of OLGRICOH.

(d) Prime Minister - The Chief Justice appoints the tribunal. The tribunal consists of three judges or former judges, one of whom is the chairman: see s 142(5) of the Constitution and s 27(7)(d) of OLDRL.

(e) All other leaders - (s 27(7)(e)) of OLDRL. The Chief Justice appoints the tribunal. The tribunal consists of a judge who is the chairman and two senior magistrates: see s 27(7)(e) of OLDRL.

28. This question is related to Question 2 in that both questions relate to process of investigation and referral initially by OC to PP and later by PP to the appropriate appointing authority of COHs or appointing authority of appropriate tribunals. As consideration of Question 1 will involve consideration of most of the issues raised in question 2, we deal with both questions together.

29. The grounds for removal of COHs are set out in s 178 of the Constitution in respect of law officers and in respect of other COHs, under s 7 of OLGRICOH. There are three grounds of removal of law officers. They are for inability, misbehavior and misconduct in office under the Leadership Code. In respect of other COHs, the same grounds are prescribed plus a fourth ground namely, for breach of condition of employment laid down by Organic Law. Removal for misconduct in office under the Leadership Code is a distinct ground as indicated by the disjunctive expression of the four grounds of removal in these provisions. The procedure for investigation of complaints on misconduct in office under the Leadership Code is provided in OLDRL whereas in respect of other grounds of removal, COH’s appointing authority is given this responsibility by the removal provisions in ss 179 and 180 of the Constitution in respect of law officers and in respect of other COHs, by ss 5 and 8 of OLGRICOH. We will first deal with the referral process of COHs for misconduct in officer under the Leadership Code and later deal with the referral process for the other three grounds of removal.

30. There is no question that pursuant to s 26 (1)(e) and s 221 of the Constitution, the Leadership Code (which includes the OLDRL) which applies to all leaders, also applies to COHs. The purpose of the Leadership Code is "to preserve the people of Papua New Guinea from mischief by its leaders": SCR No. 1 of 1978; Re Leo Morgan [1978] PNGLR 460.

31. Mr Yalo counsel for the referrer submitted that the referral process under the Leadership Code is a distinct and complete process which does not lead to any other process under law. This is demonstrated by the difference in the penalty prescribed for misconduct offences under the Leadership Code which range from a reprimand to dismissal, compared with only dismissal in the case of removal on other grounds. There is no provision in the constitutional laws which require PP to refer a COH to COH’s appointing authority. To require PP to do so would amount to breach of s 29(1) of the Constitution and ss 17(d), 20(4) & 27(1) of OLDRL. In the alternative, to the extent that there is no provision which stipulates the procedure as to what steps PP should take to bring the matter before a tribunal, there is a gap in the law which should be left to the Parliament to fill.

32. In relation to removal provisions of the Constitution and OLGRICOH, Mr Yalo submits those provisions provide distinct grounds for removal of COHs but do not provide the procedure for determining question of removal. It is for the appointing authority of each COH to promulgate rules of procedure under s 224 of the Constitution. Such procedure should include procedures for consultation between appointing authorities and other relevant constitutional institutions.

33. In respect of investigation on other grounds of removal, Mr Yalo submits those investigations could run simultaneously or parallel with OC investigations. He submits the duties defined in the Leadership Code and OLDRL are expressed in wide terms and whilst a breach of those duties may constitute misconduct in office, such conduct may also constitute other grounds of removal. For this reason, both the OC and the COH’s appointing authority could conduct separate investigations at different times or even simultaneously.

34. Mr Yalo submits upon receipt of a referral from OC, PP has the power to request the COHs’ appointing authority to appoint a tribunal under the Leadership Code. The appointing authority must act in accordance with the request. The removal provisions in ss 178, 179 & 180 of the Constitution and s 5, 7 & 8 of OLGRICOH give no power to the appointing authority to conduct its own review or investigation of the matter referred to it by PP.

35. Mr Yalo submits when the tribunal is appointed, PP should "provide prosecutorial services of the State" to the tribunal. However if the Court considers there is a gap in the law as to the PP’s function before the tribunal, the Court should formulate a rule of the underlying law to permit PP to prosecute the matter before the tribunal: SRC No. 4 of 1990: Re Meeting of Parliament [1990] PNGLR 141.

36. In relation to what is a "reasonable period" under s 29(2) of the Constitution, he submits it depends on the circumstances of each case. It is a matter for OC to determine taking into account considerations such matters as resource capacity and the leader’s right to a prompt determination of the referral. The bottom line is that PP’s decision should not be unreasonably delayed. In the alternative, to the extent that the law is silent on what constitutes a "reasonable period", there is a gap in the law which should be left to the Parliament to fill.

37. Mr Manek who is the Public Prosecutor submits there are two distinct processes. The referral process of COHs on the ground of misconduct in office under the Leadership Code is distinct from the removal process in respect of the other three grounds of removal. In respect of misconduct, he makes two submissions. His first submission is that the referral process under the Leadership Code is a distinct and complete process. No constitutional provision gives any other person or body any power to investigate allegations of misconduct in office by a COH, however serious, except OC. Once OC completes its investigations and refers the matter to PP and PP is satisfied that a prosecution should be brought against COH concerned, that satisfies the degree of satisfaction on the question of removal required to be decided by the COH’s appointing authority and the appointing authority should appoint the tribunal as a matter of course. His second submission is that, apart from the power given to PP to request CJ to appoint an appropriate tribunal under S 27(7)(d) & (e) of OLDRL, PP is not given any power to request CJ to appoint a tribunal under OLDRL, s 27(7)(a), (b) & (c). There is no provision which requires PP to refer the matter to the relevant appointing authority. In such case, PP can request CJ to appoint the appropriate tribunal without going through the appointing authority.

38. In relation to other grounds of removal, Mr Manek submits PP has no role to play in the entire referral process.

39. As to what is a reasonable period under s 29(2) of the Constitution he submits it depends on the circumstances of each case. Any decision made by the OC should be precipitated by dialogue between these two constitutional offices.

40. Mr Jerewai of counsel for JLSC submits that in respect of law officers, OC’s investigative jurisdiction is limited to "misconduct offences" under the Leadership Code. JLSC has no jurisdiction to investigate the other three grounds of removal. In respect of misconduct offences, there is only one investigation done and that is the investigation conducted by OC. PP decides whether or not to bring a prosecution proceeding. Up to this point, this process is a distinct one. In respect of CJ the question of removal is determined by NEC. PP should refer the matter to NEC to determine the question of removal and appointment of tribunal: Constitution, s 179. In respect of other law officers, PP should refer the matter to JLSC to determine the questions of removal: Constitution, s 180. In respect of other COHs, PP should refer the matter to the respective appointing authorities to determine the question of removal. If the respective appointing authorities determine that the question of removal arises and it should be investigated, in the case of law officers, it should proceed to appoint the tribunal (Constitution, ss 179 and 180) and in the case of other COHs, the appointing authority should request CJ to appoint the tribunal (s 5 of OLGRICOH). This is a special scheme which reflects the independence accorded to COHs compared to other leaders who enjoy no such independence.

41. He submits the OC may refer a COH directly to the COH’s appointing authority if the condition under 29(2) of the Constitution and s 27(3) of OLDRL but not otherwise.

42. Mr Jerewai submits PP must refer the appointing authority to appoint the tribunal for prosecution purposes. In a case where OC exercises its power under s 29(2) of the Constitution and s 27(3) of OLDRL, it must refer the matter to the appointing authority.

44. Mr Narokobi for NEC submits the Leadership Code process is a distinct process. He submits the removal provisions also set out distinct processes in respect of different COHs. In terms of investigation of misconduct in office matters and also other grounds of removal, he submits it is not proper to conduct simultaneous investigations because, one investigation is sufficient, otherwise it could amount to a breach of human rights and s 41 of the Constitution.

45. Mr Narokobi submits PP is not given any power to request the relevant appointing authority to appoint a tribunal; he can only refer the matter to the tribunal once appointed.

46. As to what is a reasonable period under s 29(2) of the Constitution, Mr Narokobi submits it depends on the circumstances of each case.

47. Ms Murray for the Clerk of the Parliament submits the Leadership Code process under s 29 of the Constitution and s 27 of OLDRL is separate from the removal provisions in ss 178, 179 180 & 181 of the Constitution and s 5 of OLGRICOH . Under both processes, the COH’s appointing authority determines the question of removal. The PP can refer the matter to appropriate appointing authority to determine the question of removal. In the case of law officers, the appointing authority appoints the tribunal if it satisfied the question of removal arises and it should be investigated. In respect of other COHs, the appointing authority will request CJ to appoint the tribunal under OLGRICOH.

48. She submits OC can refer a COH to CHO’s appointing authority to determine the question of removal if PP fails to prosecute the matter within a reasonable time.

49. She submits there is only one process, there cannot be two separate investigations on the same matter.

50. As to what is a reasonable period under s 29(2) of the Constitution she submits it depends on the circumstances of each case.

51. Dr Nonggorr of counsel for OCAC, PSCAC, AGAC and ECAC submits the Leadership Code applies to all COHs. The OC is charged with the responsibility of enforcing the Leadership Code. Investigation and referral of leaders for misconduct in office is undertaken by OC or alternatively, an investigating authority appointed by the OC under s 19 of OLDRL. Both OC and such investigating authority have power to refer a leader to PP for prosecution: Sir Julius Chan v Investigating Authority [1988] PNGLR 43.

52. He submits the procedure in respect of misconduct offences under the Leadership Code is separate from the procedure in respect of other grounds of removal in respect of COH prescribed by the ss 178, 179 & 180 of the Constitution and ss 4 & 5 of OLGRICOH. He describes the two processes as Leadership Code process and the removal process respectively. Under the Leadership Code, OC investigates the matter whereas the COH’s appointing authority investigates matters concerning other grounds of removal. They are distinct processes and separate investigations on the same matter can be carried out by the OC and the respective appointing authority even simultaneously. In respect of misconduct offences under the Leadership Code, the OC must refer the matter only to the PP: s 29(1) of the Constitution and s 27(1) of the OLDRL. It has no power to refer the mater to the appointing authority of COH.

53. Dr Nonggor submits s 27(2) of OLDRL requires PP to refer the matter to the appropriate tribunal established under s 27(7). There is no provision which requires PP to request the relevant appointing authority to appoint a tribunal.

54. He submits because there is no standing tribunal, a necessary practice has developed that the PP requests the appropriate authority to appoint a tribunal for purpose of prosecution by him as provided in s 29(1) of the Constitution. This is a good practice which does not conflict with any other provision and this practice should be sanctioned by this Court under s 22 or Sch 2.3 of the Constitution: Momis v Attorney General & NEC (2000) N 1951. Once the tribunal is appointed, it is the duty of PP to prosecute the matter before the tribunal.

55. Dr Nonggorr submits there is no provision which requires PP to refer a Leadership Code matter to any other authority such as the appointing authority of COH. When reading together s 29(1) of the Constitution and s 27(2) of OLDRL, it is clear that the PP is required to refer the matter to the appropriate tribunal established to investigate the matter. More specifically in relation to other COH, s 5(1) of OLGRICOH applies only to "the removal procedure." As the opening words of that provision states, it does not apply to misconduct in office under the Leadership Code. They are two distinct processes and to link them together is to confuse the two processes. What expertise does the appointing authority have to receive, vet and review an investigation and opinion on misconduct formed by OC and PP? The same submissions appear to be made in respect of NEC and JLSC in respect of CJ and other COH respectively. He submits to the extent that the Hitolo tribunal gave the contrary interpretation, it was wrong.

56. Dr Nonggor submits as the meaning of question of removal, the appropriate appointing authority must be satisfied that the matter raises substantive and serious question that if proved would lead to removal, and not a hoax or fabrication to tarnish a leader’s reputation without basis.

57. As to what is a reasonable period under s 29 (2) of the Constitution, he submits it depends on the circumstances of each case. He refers to s 37(14) of the Constitution which says the trial of a person committed to stand trial on an indictable offence in the National Court must commence within four months from the date of committal. Other relevant considerations include the complexity of the matter, time required for PP to review the matter and resources available to PP which affect the efficient performance of his responsibilities. A reasonable period is within four months from the date of referral by OC to the date on which PP makes a decision and takes the appropriate step to action that decision.

58. The Leadership Code sets out the duties and responsibilities of all leaders. Section 27(1),(2) & (3) of the Constitution set out those duties. The duties relate to the leaders’ conduct, both in his public or official life and private life, which impact on the discharge of his official duties. In our view, an essential character which underpins those duties is the use of the leadership position for personal gain, be it financial, material or otherwise. In other words, they are the types of conduct or activities which are intended to or tend to corrupt the proper discharge of these duties for personal gain and not for the public benefit. The Constitutional Planning Committee (CPC) in its final report made repeated reference to corrupt activities of leaders to be the main focus of the Leadership Code: see Final Report of CPC, Part I, at par 13 – 30 (the leadership code-underlying considerations). The nature of the duties and acts constituting misconduct in office set out in the Constitution and OLDRL deal with corrupt activities of leaders – the use of government power for the leader’s own personal benefit or for the benefit of his family members or associates, either directly or indirectly.

59. The Leadership Code also prescribes acts which amount to breach of those duties and thereby constitute "misconduct in office". The term "misconduct in office" has a specific meaning. It is defined by Sch. 1.2 of the Constitution in the following terms:

"misconduct in office" means misconduct in office as described in Section 27 (responsibilities of office) or as prescribed by an Organic Law made for the purposes of Section 28 (further provisions...".

60. Section 27(5) of the Constitution expressly prescribed acts which constitute misconduct in office. We will refer to such prescribed acts of misconduct in office as misconduct offences. The misconduct offences are signified by the words "is guilty of misconduct in office" appearing at the end of the provision which spells out breach of the prescribed duty. There are two main sources of misconduct offences. First, s 27(5) of the Constitution prescribes only three types of misconduct offences. They are: (1) a leader is convicted of an offence in respect of his office or position or in relation to the performance of his function or duties; (2) fails to comply with a direction issued by the OC under s 27(4); and (3) fails to carry out the obligations imposed by Subsections (1), (2) and (3).

61. Secondly, OLDRL sets out further duties and prescribes various misconduct offences. Those duties and misconduct offences also relate to the leader’s corrupt or improper use of his or her leadership position for personal gain or benefit. Misconduct offences are signified by the words "is guilty of misconduct in office" appearing at the end of the provision which spells out the breach of the duty. They are s 4 (Failing to provide statement of income), s 5 (use of office for personal benefit, etc), s 6 (personal interest), s 7 (Company directorships), s 8 (Stewardship), engaging in other paid employment (s 9), s 10 (interest in contracts), s 11 (acceptance, etc. of bribes), s 12 (acceptance, etc of loans, etc), s 13 (misappropriation of funds of Papua New Guinea), s 14 (advantage not to be gained from official information), s 15 (disclosure of interest before debate or voting), s 16 (agents), s 23 (failure to co-operate with OC in its investigation), s 25 (seeking, etc prohibited interest, etc), s 26 (failure to comply with order of OC given under s 26(1), against forfeiture of prohibited interest).

62. OC is entrusted with the responsibility of enforcing the Leadership Code. OC’s function under the Leadership Code is one of five (5) distinct functions prescribed by s 218 of the Constitution: see s 218(d). Its function under the Leadership Code is based on an investigation into an alleged misconduct offence and referral of the leader for prosecution under s 29 of the Constitution and s 27 of the OLDRL. In our opinion, OC’s jurisdiction to refer a leader for prosecution under the Leadership Code is limited to misconduct offences expressly prescribed by s 27(5) of the Constitution and various sections of OLDRL referred to or any other Organic Law which prescribed misconduct offences for purpose of the Leadership Code.

63. We accept Mr Yalo’s submission that the duties and obligations imposed on leaders in s 27 of the Constitution and the OLDRL are couched in broad terms and cover a wide range of conduct of leaders in both their official and private life, which affects their leadership position. The ordinary English meaning of the word misconduct has the same meaning as misbehavior or unacceptable behavior: see definition of misconduct in Oxford Advanced Learner’s Dictionary, Sixth Edition. Misconduct in office therefore would include such conduct or behavior of leaders whilst in office which conflicts with, compromises or prevents the proper performance of the leader’s functions as a leader. Under this broad definition, misconduct in office may include misbehavior and even some cases of inability.

64. In its final report, the Constitutional Planning Committee (CPC) used the terms misconduct, misbehaviour and inability loosely to define the grounds for removal of COH. For instance, in respect of Judges, CPC stated in Part 1, at page 8/8:

77. As is the case with other constitutional office-holders there are, however, certain circumstances in which a particular judge should not be allowed to continue in office. These include situations in which a judge is guilty of misbehavior (including gross negligence and breach of the Leadership Code), or is physically or mentally incapable of performing his duties..."

31. Chronic infirmity of mind or body should be grounds for dismissal. However, that infirmity needs to be carefully evaluated, as do allegations of misconduct, breach of the Leadership Code and gross negligence (which are likely to compromise the integrity and effectiveness of an office)..."

66. It is clear however from the scheme of removal provisions that Parliament’s intended that misconduct in office under the Leadership Code, general misbehavior and inability were treated as distinct grounds for removal of COH’s. The removal of COH’s for misconduct in office under the Leadership Code and OLDRL is one of several distinct grounds prescribed by the Constitution and OLGRICOH. In respect of grounds for removal of law officers, s 178 sets out three distinct grounds namely misconduct in office under the Leadership Code, inability and misbehavior. Likewise s 7 of OLGRICOH sets out the same three distinct grounds of removal which includes misconduct in office under the Leadership Code. The distinct nature of these grounds is evident from the conjunctive expression of these grounds by the use of the word "or".

67. The words misbehaviour and inability are not defined by a constitutional law. They must be given their ordinary meaning. The ordinary meaning of these two words is beyond doubt. In the context of leaders and COHs in particular, misbehaviour refers to conduct which may be regarded as wrong and unacceptable and offends against accepted standards of social, moral and ethical behaviour which may be established by practice or convention, or by a Code of Conduct. The word misconduct in ordinary language has the same meaning as misbehaviour. Examples of misbehaviour or misconduct include unacceptable conduct in the workplace or outside of the workplace which do not befit the office occupied by a COH and includes unethical behaviour amounting to breach of any Code of Conduct. Such conduct need not involve an element of corruption or breach of any law as in the case of misconduct in office. Acts of misbehaviour are many and varied and it is not practical to list them exhaustively. They would include abusive behaviour and acts of insubordination.

68. Inability refers to lack of capacity to perform official duties "whether arising from physical or mental infirmity or otherwise". The word "otherwise" appearing in s 178(a) of the Constitution and s 7(a) of OLGRICOH is wide enough to cover other causes which restricts the COH from performing or effectively performing his duties. In our view, inability includes inability to effectively perform duties due gross negligence or carelessness. In certain circumstances, inability to effectively perform duties due to gross negligence or neglect of duty may constitute misbehavior.

69. Breach of conditions of employment provided by Organic Law of the kind set out in ss 14 & 15 of OLCCOH and s 5 of OLTCEJ. It is noted that in respect of law officers, breach of such conditions of employment is not a ground of removal.

70. Given the broad meaning of the words misbehaviour, misconduct or misconduct in office and inability, it is inevitable that certain conduct may constitute multiple grounds of removal. The important distinction to bear in mind between misconduct in office on one hand and misbehaviour and inability on the other hand is that the acts constituting the former involve an element of corruption whereas the latter necessarily do not. In relation to the distinction between misconduct in office and breach of employment condition, it depends on the nature of the prescribed act. If the prescribed act involves an element of corruption, then such act may also constitute misconduct in office. For example a COH who actively engages in the management or control of a company or solicits and accepts a benefit in addition to his prescribed conditions of employment is guilty of breaching s 5 of OLTCEJ & s 15 of OLCCOH. Such conduct may also constitute misconduct in office under the Leadership Code. Another example is of a COH who is seen drinking in a public bar in a hotel, intoxicates himself and abuses hotel staff. Whilst such conduct may constitute misbehaviour, it may not necessarily constitute misconduct in office because the conduct does not involve an element of corruption.

71. Whilst certain acts constituting one or more grounds of removal may overlap, other acts may be peculiar to a particular ground, having regard to the distinct nature of different constitutional offices and the distinct nature and degree of independence enjoyed by particular constitutional office or COH. In cases where certain acts constitute misconduct in office and other grounds of removal, it may be necessary for OC and the respective appointing authority of the COH concerned, to establish some form of dialogue so that both offices are kept informed of the status of their respective investigations.

Referral process for misconduct in office under the Leadership Code of COHs – Six Important steps

73. How should the referral process of a COH under the Leadership Code work in practice? The first step commences with OC. The OC receives a complaint of misconduct in office committed by a COH or learns of a suspected misconduct in office committed by a COH. It conducts its investigations and determines that there exists a prima facie case of misconduct in office. It compiles a referral document which is accompanied by a Statement of Reasons and refers the matter to the PP: s 29(1) of the Constitution and s 27(1)(a) of the OLDRL. The first step is not different from that taken by OC under the ordinary referral process involving leaders who are not COH.

74. Subject to the special power given to OC to prosecute by s 29(2) of the Constitution and s 27(1)(b) and (3) of ORDRL. PP is the only prosecuting authority in Papua New Guinea, and he is vested with the duty to prosecute all leaders including COH, for misconduct offences under the Leadership Code. The PP’s power under this provision is independent, it is not connected with the OC’s investigative jurisdiction: Ombudsman Commission v Peter Yama (2004) SC 747.

75. PP must consider the referral received from the OC and decide whether "to bring or decline to bring a proceeding" under the Leadership Code before an appropriate tribunal, under s 177(b) of the Constitution. The phrase "bring or decline to bring a proceeding" has the same meaning as deciding whether or not to prosecute the COH. This second step is the same as that involving leaders referred under the ordinary referral process involving leaders who are not COHs.

77. The issues raised in question one mainly relate to this step of the process: Is the removal process under ss179, 180 and 181 of the Constitution and ss 3-9 of OLGRICOH, in respect of COHs distinct from Leadership Code process?

78. Section 29(1) of the Constitution simply says OC shall "refer the matter to the Public Prosecutor for prosecution before a tribunal". Section 27(2) of the OLDRL empowers PP to "refer the matter ... to the appropriate tribunal established under Subsection (7)". Therefore there is no question that PP must commence the prosecution of a COH before the appropriate tribunal established under s 27(7) of OLDRL. How does PP commence such prosecution? The Leadership Code is silent on this procedural point. It should be resolved by PP by resorting to s 224 of the Constitution.

79. PP appears to have developed a practice in relation to leaders who are to COHs, whereby he or she, in writing, requests CJ as the appropriate tribunal’s appointing authority, to appoint members of the tribunal to constitute the tribunal under s 27(7)(e) of OLDRL. We do not see any problem with the practice. The practice of requesting CJ, as the appropriate establishing authority of this tribunal, to establish the tribunal by appointing its members, is a practice or procedure developed by PP comes within his power conferred by s 224 of the Constitution. This practice is also consistent with s 29(1) of the Constitution and s 27(2) & (3) of OLDRL.

80. In respect of a COH, if PP decides to bring a prosecution, what is the next step he should take?

81. There is no question that PP must refer the matter involving a COH to the appropriate appointing authority of the appropriate tribunal. Consistent with existing practice, PP would request the appropriate tribunal’s appointing authority to appoint a tribunal to investigate the COH. In the case of the Chief Justice, he would request NEC to appoint the tribunal. The NEC is also the appointing authority of CJ. In respect of other law officers, that request is made to the JLSC. The JLSC is also the appointing authority of other law officers. In respect of other COHs, should that request be made to CJ as the appointing authority of the appropriate tribunal? The answer to this question depends on whether the PP has the power to "request" CJ to appoint the appropriate tribunal. There is no question that CJ appoints the tribunal but the power to "request" the CJ to appoint a tribunal is given to the COHs’ appointing authority by s 5 of OLGRICOH. Therefore, PP can only request COH’s appointing authority, in the form to request CJ to appoint the tribunal.

82. The matters involving all COHs’ is now before their respective appointing authorities. What does the COHs’ appointing authority do? Does it simply oblige and appoint the tribunal or request CJ to appoint the tribunal as the case may be, or does it have an independent power to consider the PP’s request and decide whether or not to appoint the tribunal or request the appointment of the tribunal by CJ?

83. It is at this point that the process significantly differs from the ordinary process. We accept Mr. Jerewai’s submission on this point insofar as it relates to law officers other than CJ. We are of the view that the respective appointing authority of all COHs are given a special power to decide whether the question of removal arises and if it is satisfied that it arises and it should be investigated, it appoints the tribunal in respect of law officers and in respect of other COHs, it requests CJ to appoint the tribunal. If it decides that the question to removal does not arise, it declines to appoint the tribunal or request the CJ to appoint the tribunal as the case may be, and that is the end of the matter.

84. We elaborate on what we have said. In our view, the referral process of COHs for misconduct in office under the Leadership Code is a special and unique process which is different from the referral process of other leaders. This is evident from the constitutional scheme in the separate removal provisions for COHs. In respect of law officers, the Constitution which contains ss 178, 179, 180 and 181 of the Constitution and ss 5, 7 & 8 of OLGRICOH provides a separate procedure for removal. Section 178 which is headed "Grounds of removal" of the Constitution provides three distinct grounds of removal from office of law officers. These grounds are expressed disjunctively. One of those ground is for misconduct in office under the Leadership Code. As to the procedure for removal, in respect of CJ, s 179 of the Constitution gives CJ’s appointing authority, NEC, the power to appoint a tribunal to investigate complaints against CJ. In deciding whether or not to appoint the tribunal, the appointing authority must be "satisfied that the question of removal from office of the Chief Justice should be investigated". In other words, NEC must determine whether the question of removal on any of the specified ground(s) arises such that a tribunal should be appointed to investigate the matter. If NEC so determined, it appoints the tribunal. Similarly, in respect of other law officers, s 180 of the Constitution gives the same power which is given to the JLSC.

85. In the case of other COHs, s 7 of OLGRICOH which is headed "Grounds of Removal" sets out four distinct grounds of removal. Three of the four grounds are the same as those in s 178 of the Constitution. The four grounds are also expressed disjunctively. Section 5 of OLGRICOH gives the same power to the various appointing authorities of COHs to determine the question of removal but the tribunal is appointed by CJ upon the request of COHs’ appointing authority.

86. Why should PP refer the matter to the appointing authority to determine the question of removal? It is the intention of s 29(1) of the Constitution and s 27(1) & (2) of OLDRL that the matter is referred to him "for prosecution before a tribunal" appointed for that purpose by the tribunal’s appointing authority. But the appointing authority is given the discretionary power to decide whether a tribunal ought to be appointed and it can only do so if it is satisfied that the question of removal arises. PP must facilitate that constitutional decision-making process by referring the matter to the appointing authority.

87. The opinion formed and determination made by COHs’ appointing authority on the question of removal is different from the opinion formed or determination made by OC and PP. OC forms an opinion that there is "a prima facie case that a person is guilty of misconduct in office" and the PP decides whether there is sufficient material to warrant bringing a prosecution proceeding whereas the appointing authority forms an opinion that "the question of removal’ arises and it "should be investigated". The opinion formed by the appointing authority is on a much higher level and on a more serious note than the opinions formed by OC and PP respectively.

88. In order for the appointing authority to make an informed decision on the question of removal in respect of Leadership Code matters, at the time when PP requests the appointing authority to appoint the tribunal, he would be expected to provide to the appointing authority’s consideration sufficient information and reasons for his decision to bring a prosecution. In addition to any other relevant information, PP should include copies of OC’s referral and Statement of Reasons.

89. If COHs’ appointing authority decides that the question of removal arises, it make its own referral to the tribunal which it itself appoints (in the case of law officers) or is appointed by the Chief Justice (in the case of other COHs). Where an appointing authority is satisfied that the question of removal arises which should be investigated, it makes its own reference refers together with its own Statement of Reasons for its opinion: ss 179(1)(b) & 180(1)(b) of the Constitution and s 8(1)(b) of OLGRICOH. By providing for a separate referral process, it is intended that upon receipt of the referral from the PP, the appointing authority should conduct its own independent investigations and compile its investigation report which forms the basis of its referral of COH to the tribunal.

90. For purposes of comparison, let us say PP decides to refer a law officer other than CJ, under the Leadership Code. He has only one course open and that is to refer the matter to JLSC. He cannot refer a law officer to CJ to determine the question of removal and appointment of the tribunal because he has no such power. As a matter of practice, the referral is made in the form of a request to JLSC to appoint the tribunal. JLSC determines the question of removal and appoints the tribunal. This process is clear.

91. In the case of other COHs, PP has two options. The first is he could request CJ to appoint a tribunal and CJ obliges. The second is PP could refer the matter to the COHs’ appointing authority for its consideration and appointment of a tribunal. Under the first option, PP is not given the power to refer or request CJ to appoint the tribunal. Further, the various appointing authorities are vested with the power to determine the question of removal. CJ is not given that power. The adoption of this option would result in breach of s 5 of OLGRICOH. The second option is PP could request the COH’s appointing authority to appoint a tribunal. Under the second option, PP would request the COH’s appointing authority to request CJ to appoint a tribunal if the appointing authority is satisfied that the question of removal arises and it ought to be investigated. The appointing authority is given the power to determine for itself the question of removal. The second option is consistent with s 5 of OLGRICOH.

92. In our view, the power given to COH’s appointing authority to determine the question of removal is a significant constitutional power and it is independent of and separate from the power given to PP by s 177(b) of the Constitution. In order for the appointing authority to properly determine this question, PP would furnish copies of the referral and Statement of Reasons from OC together with his own decision and reasons for the determination to bring a proceeding. The appointing authority will make its own determination on the question of removal. In making this decision, the COH’s appointing authority may, after receiving PP’s referral, inform itself in whatever manner it sees fit. It may conduct its own investigations or it may make its decision. That is a matter for the appointing authority. If the appointing authority decides that the question of removal arises and it should be investigated by a tribunal, it will proceed to appoint the appropriate tribunal under ss 179 and 181 of the Constitution in respect of law officers or in the case of other COHs, request CJ to appoint the tribunal under s 5 of OLGRICOH. If the appointing authority is not satisfied that the question of removal arises and should be investigated, that is the end of the matter and the COH is discharged.

93. It is true that to a certain extent, this process may tend to duplicate the investigation process already completed by OC. It may also give different treatment to COHs in having the OC’s investigations into the allegations of misconduct in office against them scrutinized or reviewed by the appointing authority. Is it the intention of the legislature and the framers of the Constitution that COHs should be differently from other leaders and accorded additional protection? The answer to this question depends on the purpose of separate removal provisions and the meaning of "question of removal".

94. In CPC’s final report, it said that whilst the Leadership code should apply to all leaders including COHs, it considered the guarantee of the independence of COHs to be vital. For this reason, CPC recommended special provisions to guarantee their independence by specifying the circumstances in which they were to be removed from office and how allegations of improper conduct were to be dealt with. Chapter 14 of the CPC’s Final Report contains its report and recommendations on all COHs. Chapter 14, Para 13 and 14 contain the CPC’s recommendations as follows:

13. Subject to the recommendations in Chapter 8, "The Administration of Justice" a constitutional office- holder may be removed from office by the person or body that appointed him, but only on the grounds of inability to perform the functions of his office (whether arising from infirmity of mind or body), or for misbehavior (including gross negligence or breach of the Leadership Code or of Recommendation 11 or 12 above). Such an office-holder may be removed only in accordance with the recommendation of a tribunal of three judges of the National Court of Justice, which shall deliberate upon the allegations against him.

14. Except as otherwise provided in the Constitution, if the body that appointed a constitutional office-holder is satisfied that the question of removing him from office should be investigated, it shall –

(1) request the Chief Justice to appoint a tribunal of three judges of the National Court of Justice, and the Chief Justice shall act in accordance with that request and appoint one of the members of the tribunal to be chairman;

(2) the tribunal shall enquire into a matter, report its findings to the body that appointed the constitutional office-holder, and recommend to that body whether or not he ought to be removed on the grounds specified in Recommendation 2 above (which includes breaches of Recommendation 11 and 12 above), and the body that appointed the constitutional office-holder shall act in accordance with the recommendation of the tribunal".

95. CPC in its Final Report, Part A, at par 31, 32 and 37 set out the reasons for its recommendations which were to follow,. The CPC stated:

32. In recommending that the holders of the constitutional offices listed above should be independent in the performance of their functions, we have recognized that they should not be easily dismissed. We have therefore specified the circumstances in which a constitutional office-holder can be removed from office, and how allegations against him are to be dealt with."

33. Chronic infirmity of mind or body should be grounds for dismissal. However, that infirmity needs to be carefully evaluated, as do allegations of misconduct, breach of the Leadership Code and gross negligence (which are likely to compromise the integrity and effectiveness of the office). We therefore recommend that a special tribunal of three judges should be appointed to investigate and report on allegations which the body that first appointed a constitutional office-holder feels are serious enough to warrant such an investigation" ...

37. The independence of constitutional office-holders must be real. It involves special privileges and obligations. We believe that our proposals provide adequate safeguards for the independence of the constitutional office—holders listed, whilst ensuring that they fulfill their obligations to the society on whose behalf certain most important responsibilities will have been entrusted to them."

96. Chapter 8 sets out the CPC’s report and recommendations on the administration of justice. In respect of judges, at par 75, 76, 77 & 79; the CPC stated:

75. The grounds upon which constitutional office-holders should be disqualified from holding office, and the way in which they should be removed are dealt with in general terms in Part A of Chapter 14.

76. We believe that judges should be removed from office before their term of office is completed only in the most serious of circumstances. Their fixed term, and assured conditions of employment after their term has expired, are vital guarantee of their independence.

77. As in the case with other constitutional office-holders there are, however, certain circumstances in which a particular judge should not be allowed t o continue in office. These include situations in which a judge is guilty of misbehavior (including gross negligence and breach of the Leadership Code), or is physically or mentally incapable of performing his duties. In such circumstances, the Judicial and Legal Services Commission should be able to suspend from office a judge other than the Chief Justice, pending an investigation by a tribunal of three judges chosen by the Commission...

79. The same provisions should apply in respect of the disqualification, suspension and removal from office of the Chief Justice, except that it should be the Prime Minister who decides whether or not the question of removing him from office ought to be investigated".

97. The CPC recommended similar provisions for removal of other law officers and other COHs: see par 102 and 121, Chapter 8 of CPC Report.

98. After debate on the recommendations, the Constituent Assembly adopted the recommendations with changes such as the removal provision in respect of the CJ in relation to a decision on the question of removal to be decided by the NEC and not the Prime Minister. The Hansard which contain the debates on the above recommendations do not record any opposition to these recommendations. The recommendations were enacted into law and those provisions are now reflected in the removal provisions.

99. It is therefore clear from the CPC report that the COHs’ appointing authority should determine the question of removal in respect of each distinct ground of removal separately, including misconduct offences under the Leadership Code and that they would be removed from office only "in the most serious of circumstances". These intentions are clearly expressed in the scheme of the removal provisions in ss 178, 179, 180, & 180 of the Constitution and ss 5, 7 & 8 of OLGRICOH in several respects:

(a) Separate and distinct grounds for removal of COHs which includes misconduct offences under the Leadership Code.

(c). The use of limiting words such as the word "only" appearing in s 178 of the Constitution and s 7 of the OLGRICOH.

(d). Penalty is limited to removal from office as provided in ss 179(2) and 180(2) of the Constitution and s 8(2) of the OLGRICOH.

(e) Also see s 223 of the Constitution which sets out special provisions which guarantee independence and protection of COHs.

100. The term "the question of removal" is not defined by any constitutional law. The penalty provision in the Leadership Code and the CPC’s recommendations give some guidance as to the meaning of this phrase. Under the Leadership Code, a penalty of dismissal is warranted where there is "serious culpability" on the part of the leader and the "public policy and public good" require the leader’s dismissal: see s 28(1A) of the Constitution and s 27(5) of OLDRL. This provision applies to COHs dealt with under the Leadership Code. The CPC’s view was that a COH should only be removed from office "in the most serious of circumstances" or "of the most serious kind" and which raises serious questions as to the COHs’ culpability and such that if they were established or proved, removal or dismissal is the only penalty warranted in all the circumstances. For removal or dismissal from office may be the only penalty open to the tribunal to recommend in respect of COHs: see ss 179(2) and 180(2) of the Constitution and s 8(2) of OLGRICOH.

101. As to the type of actions which constitute "the most serious of circumstances" in respect of a particular ground of removal depends on the circumstances of each case. Such action must raise serious questions about the professional and personal integrity, character and/or competence of the COH to continue in office. The nature of public office held by COH is important and the powers and functions performed by them have far reaching consequences and implications in the community. By the very nature of these constitutional offices, complaints against COHs tend to be rarely made out of respect for their independence. When complaints are made, they are not made lightly and they must be carefully assessed and properly investigated before a decision is made on the question of removal. The appointing authority must have in place an effective investigative process to perform this task.

102. There is no procedure provided for determining the question of removal of COHs under the Leadership Code. As permitted by s 224 of the Constitution, the appointing authority should develop its own practice and procedures for dealing with the request by PP. It may develop ad hoc procedures on a case by case basis or standing procedures of general application to all cases of Leadership Code matters. Such procedures should provide for all important aspects of the investigative process including assessment of OC’s referral documents and PP’s request, further investigation into matters raised in those material, appointment of an officer by the appointing authority to conduct or assist in the investigations if necessary, compliance with principles of natural justice in relation to any new matters that it considers necessary to be the subject of further investigation, reaching a decision on the question of removal and notification of the COH concerned of its decision. If the relevant appointing authorities have not yet formulated such procedure, it is imperative that they do so now after this decision.

103. As a guide, we set out some important aspects of such procedure as follows:

(1) When the COHs’ appointing authority receives the request from PP, it should have before it the following documents:

(a) PP’s letter requesting appointment of the appropriate Tribunal together with reasons for his decision to bring a prosecution;

(2) The COHs’ appointing authority may assess this material and form an opinion as to whether it is sufficient to reach a decision on the question of removal. It may base its decision solely on this information or may wish to conduct its own investigations to obtain further information regarding the allegations. Those are matters in the appointing authority’s discretion.

(3) If the COHs’ appointing authority decides to conduct its own investigations and in the course of the investigation, it may receive new information that may be prejudicial to the COH concerned. It should give the COH an opportunity to respond to those matters: see s 59 of the Constitution. The appointing authority would then consider all these material and determine the question of removal.

(4) If the COHs’ appointing authority decides that the question of removal does arise and it should be investigated by a tribunal, it appoints the tribunal. At the same time it should formulate its own statement of allegations together with its own statement of reasons for its opinion on the question of removal and refer the matter to the tribunal: see ss 179(1)(b) and 180(1)(b) of the Constitution and s 8(1) of OLGRICOH.

(5) If the COH’s appointing authority decides that the question of removal does not arise, it should decline PP’s request and advise PP accordingly. If on the material before it, the appointing authority considers that the matter is not serious enough to warrant the appointment of a tribunal, it may also deal with the matter administratively in any appropriate manner as it thinks fit.

104. In the referral of leaders other than COHs, upon receipt of PP’s request, CJ simply obliges by appointing a tribunal to enable the PP to bring a prosecution. Does the CJ have a discretion to refuse the PP’s request? This issue is not raised in this reference and it was not argued before us. However, we would venture to suggest that CJ is given no such power. He should appoint the members of the tribunal as a matter of course. Once the members are appointed, the tribunal is constituted and it convenes its inquiry. When the tribunal first convenes, usually in a public hearing, PP presents to the tribunal the referral document he received from OC and presents the statement of allegations. Based on these documents, the tribunal then assumes jurisdiction on the subject matter and commences its inquiry.

105. In the case of COHs, the process is different. In the case of law officers, if the appointing authority is satisfied that the question of removal arises which should be investigated, it appoints the tribunal and makes its own reference. It must compile its own reference and Statement of Reasons for its opinion and submit the same to the tribunal: ss 179(1)(b) & 180(1)(b) of the Constitution and s 8(1)(b) of OLGRICOH. The appointing authority should also submit to the tribunal PP’s request and OC’s referral document and its Statement of Reasons. In the case of other COHs, the COH’s appointing authority should either submit these documents to CJ together with its written request to appoint the tribunal and CJ should refer the same documents to the tribunal which he has appointed. Alternatively, the appointing authority should simply request CJ to appoint the tribunal and when it is appointed, present those documents to the tribunal.

107. The COH’s appointing authority should in writing advise PP of the appointment of the appropriate tribunal and furnish copies of the same documents to PP and instruct him to prosecute the matter before the tribunal.

109. The issue was settled by the Supreme Court in OC v Yama (2004) SC
747, the Supreme Court decided that the role of the PP before a tribunal under the Leadership Code is to "prosecute". As to what prosecution entails, see our discussions under Question 2 and 3.

111. The OC’s power to refer a leader under the Leadership Code direct to a tribunal is given by s 29(2) of the Constitution and s 27(1) and (3) of OLDRL. Under s 29(2) of the Constitution, OC may prosecute the matter where the PP "fails to prosecute the matter within a reasonable period". "Prosecution" would mean making a decision to bring a prosecution and actually prosecuting the matter before a tribunal appointed by the relevant appointing authority. In the case of COHs, OC must request the appointing authority to appoint the tribunal. The same six steps set out above apply with appropriate notifications.

112. There were some issues raised by Mr Yalo on the interpretation of s 27(1) and (3) of OLDRL. A question was raised as to whether OC was empowered by s 27(1)(b) to refer a leader to the tribunal without going through the office of the PP. In our view, s 29(2) of the Constitution should be read together with s 27(1) & (3) of OLDRL. Section 29(2) of the Constitution gives OC no such power. OC can only refer the same matter to the COH’s appointing authority which it previously referred to PP, after it decides that PP has failed to prosecute the matter within a reasonable period. Section 27(1)(a) of OLDRL gives effect to s 29(1) of the Constitution and s 27(1)(b) of OLDRL gives effect to s 29(2) of the Constitution and s 27(1)(b) of OLDRL.

Other investigating authority’s referral to tribunal established under s 27(1) of OLDRL.

113. Section 28(1)(f) of the Constitution provides for an Organic Law to make provisions for some other authority to investigate alleged misconduct offences. Section 19(1) of the OLDRL provides that OC may appoint an independent investigating authority consisting of one or more COHs to conduct an investigation into a Leadership Code matter and report back to it. Such authority has power to refer the matter to PP: Chan v Investigating Authority into the Placer Pacific Share Issue [1988] PNGLR 43. Such authority has no power to refer the matter to any other body or tribunal.

114. The phrase "within a reasonable period" is not defined by reference to a fixed time period. Schedule 1.0 of the Constitution is relevant and it provides:

Where no time is prescribed or allowed within which an act is required or permitted by a Constitutional law to be done, the act shall or may be done, as the case may be, with all convenient speed and as often as the occasion arises".

115. This provision is not of much assistance in terms of prescribing a fixed time period. All it is saying is that the relevant public authority, in the case, PP, must act on the referral in a timely manner or speedy manner, so that a decision on the referral is not unduly delayed. The relevant circumstances and considerations which impact on the timely performance of PP’s function under s 177(1)(b) of the Constitution amongst other relevant matters, include—

(a) Administrative difficulties or hardships faced by the office of the PP, as do many other constitutional institutions, which hinders the efficient performance of his functions. By way of analogy, see s 18(3)(d) of OLDRL and s 16(3)(g) of OLOC which say OC may decide not to investigate a complaint and defer the investigation if its resources are insufficient for adequate investigation.

(b) The time limit imposed by statutes or subordinate legislation for the doing of an act. Most statutes in this jurisdiction impose a period of between one month to six months, for the doing of an act required to be done by statute. And because many allegations of misconduct in office are serious and may be of a criminal nature, three statutes come to our mind which might shed some light on what is a reasonable period. They are s 37(3) & (14) of the Constitution, s 624(1) of the Criminal Code (Ch. 262) and s 69 of the Summary Offences Act (Ch No. 26).

(i) Section 37(3) of the Constitution gives a person charged with a criminal offence the right to a fair hearing "within reasonable time". Section 37(14) of the Constitution gives a person in respect of an indictable offence is not commenced "within four months of the date on which he was committed for trial", a detailed report concerning the case is made by the Chief Justice to the Minister for Justice. The trial of a person commences when he or she is called upon by the National Court to plead to the indictment on which he or she has been arraigned: s 557 of the Criminal Code. In practice, PP receives the notice of committal and court depositions from the Clerk of the District Court which committed the person to stand trial before the National Court. A trial cannot commence unless PP presents an indictment before the Court. Although the Criminal Code does not prescribe a time period for presenting the indictment before the Court, s 37(14) of the Constitution imposes a duty on the PP to prosecute the matter by presenting an indictment within four months of committal, to enable the Court to commence the trial within the four month period.

(ii) Section 624(1) of the Criminal Code provides that "an action or prosecution against any person for anything done in pursuance of any of the provisions of this Code with respect to the arrest of offenders and seizure of goods must be commenced within six months after the fact committed".

(iii) Section 69 of the Summary Offences Act requires an information for a summary offence to be laid in Court within six months of the commission of the offence.

(c) Leader’s fixed term of office. Leaders, both elected and appointed, have fixed term of office prescribed by law. The term usually ranges from 3 years to 6 years and in the extreme case, up to 10 years in respect of citizen judges. Time is of essence for leaders and a decision by PP should not be unduly delayed for a longer period than is reasonably necessary to conduct his own investigations and reach a decision. It is in the public interest the good administration and fairness to the people and the leader and consistent in achieving the purpose of the Leadership Code; that a decision to bring a prosecution proceeding to prosecute should be made promptly during the leader’s term of office so that his fate is known by the public and the leader in good time, before his term of office expires. Decisions on referrals left to the last few weeks or few months or in the last year of his term before the COH’s term expires should be avoided.

116. In our view, except in the special circumstances of a particular matter which may require a longer period, a period of between 1 to 4 months is "a reasonable period" within which PP should make his decision under s 177(1)(b) of the Constitution, as required by s 29(2) of the Constitution. The period is to be computed from the date of OC’s referral of the matter to PP and the date on which PP makes a decision and either requests the appointing authority to appoint the appropriate tribunal or advises the OC and the leader affected of his decision to decline to bring a prosecution.

2. Other Grounds of Removal of COHs: inability, misbehaviour and breach of employment condition.

117. In respect of the three other grounds of removal of COHs namely; misbehaviour, inability and breach of employment condition; the investigative and referral process is set out in ss 178(a) and (b), 179(1) and 180(1) of the Constitution in respect of law officers and s 5(1) of OLGRICOH in respect of other COHs. There is no question that the respective appointing authority has jurisdiction to investigate and determine the "question of removal". This is a special process which is initiated and completed by the COHs’ appointing authority. This investigative process is distinct from the Leadership Code process. Both OC and PP have no role to play in this process.

118. In respect of these grounds of removal, the appointing authority should formulate its own procedural guidelines for determining the question of removal, either on a case by case basis or more preferably, formulate standing procedures of general application to all cases, as allowed by s 224 of the Constitution. If appropriate appointing authorities have not yet formulated such guidelines, it is imperative to do so now.

119. In situations where there are a number of COHs employed by a constitutional office, it may be useful for each constitutional institution concerned, where appropriate, to formulate their own code of conduct of COHs and formulate procedural guidelines to investigate and deal with breaches of their own codes of conduct internally and refer serious cases to the appointing authority. Whilst it is important to have a code of conduct which spells out the duties of COHs or any leader for that matter, it is equally important for such code to provide procedures to effectively deal with breaches of those duties.

120. As a guide, we suggest essential matters to be covered by such procedure to include:

(a) definition of acts which constitute misbehaviour or inability or breach of condition of employment;

(d) appointment of officers or persons to assist the appointing authority to conduct investigations;

(e) compliance with principles of natural justice by giving the COH concerned an opportunity to respond to the complaint;

(f) guidelines for investigating and determining existence of seriousness of ground of removal and reaching a decision;

(i) appointment of officer or person to represent the appointing authority before the tribunal;

(j) notification of COH and person who lodged the complaint of the decision; and

(k) if the question of removal is not raised in a matter, procedures to deal with the matter administratively.

3. Simultaneous or separate investigations by OC and COHs’ Appointing Authority.

121. We have said in Question 1 that certain conduct may constitute multiple grounds of removal. For this reason, if the same complaint has been lodged with OC and the appointing authority, it is permissible for OC and the appointing authority to conduct simultaneous but separate investigations into the same matter. An investigation into the matter by one investigating body should not be a bar to investigations by the other investigating body. In a case where both bodies investigate the same matter, one body need not await the outcome of the investigations by the other body. For in the end, it may matter little that OC and the appointing authority conduct separate or simultaneous investigations because the same matter will ultimately end up with the appointing authority to determine the question of removal. It is good practice though that OC and the appointing authority establish and maintain some form of dialogue on the matter to keep each other informed of the status and result of their respective investigations.

4. Is Leadership Code process distinct from the process involving other grounds of removal under s 178(a) and (b) of the Constitution and s 5(a), (b) and (d) of OLGRICOH?

122. In conclusion, it is our view that the referral process of COHs for misconduct in office under the Leadership Code is the same as the process of referral of other leaders under the Leadership Code except that PP must refer the matter to the COHs’ appointing authority to determine the question of removal. In respect of other grounds of removal, the process is different.

1(a): Yes. PP must refer the matter to COHs’ appointing authority to determine the question of removal.

1(b): Yes. PP must refer the matter to COHs’ appointing authority to determine the question of removal.

1(c): Yes. PP must refer the matter to COHs’ appointing authority to determine the question of removal.

1(d): Yes. Provided the condition prescribed by s 29(2) of the Constitution and s 27(3) of OLDRL is satisfied, OC must refer the matter to the COHs’ appointing authority to determine the question of removal. An investigation authority appointed by OC under s 28(1)(f) of the Constitution and s 19(1) of OLDRL must refer the matter to PP.

1(e): Yes. In respect of actions which constitute other grounds of removal and also misconduct in office under the Leadership Code.

1(g): A "reasonable period" in s 29(2) of Constitution means within 1 to 4 months except where the circumstances of particular case require a longer period. The period is computed from the date of OC’s referral and the PP’s decision made under s 177(1)(b) of the Constitution.

124. This question relates to PP’s function under the Leadership Code.
We have already dealt with Questions 2(a) and (c) under Question 1. Question 2(c) remains to be considered. This question relates to PP’s role before a tribunal.

125. Question 2(c) relates to PP’s role before the tribunal in a Leadership Code matter. There is no question that it is his constitutional duty to prosecute the matter. This principle was enunciated by the Supreme Court in Ombudsman Commission v Peter Yama (2004) SC 747. In that case the Supreme Court discussed the OC’s investigative function which is distinct from the PP’s prosecutorial function as follows:

"The Public Prosecutor’s function in Leadership Code matters is spelt out in Constitution, s 177 (1) (b), Constitution, s 29 (1) and OLDRL, s 27 (3) . Under Constitution, s 177 (1) (b) in relation to a matter referred to him by the Commission, he is empowered to make a decision "to bring or decline to bring proceedings under Division 111.2 (Leadership Code)" for misconduct in office. By virtue of Constitution, s 29 (1), OLDRL,(d), s 20(4) and s 27 (1) and (2); he must "prosecute" the leader before the Leadership Tribunal.

"Reading together Constitution s 177 (b) with Constitution, s 29 (1) and OLDRL, s 17(d), s 20 (4) and s 27 (2), the Public Prosecutor has two functions on Leadership Code matters. He must decide to "bring or decline" to bring the proceedings in the matter referred to him by the Commission, before a Leadership Tribunal appointed under the Leadership Code. If he so decides, then he must "prosecute" the matter before the tribunal".

126. Mr Yalo submits that in the above case, the Supreme Court did not consider the meaning of the word "prosecution" in the context of proceedings before a tribunal.

127. Mr Yalo submits the constitutional provisions seem to say that the Public Prosecutor shall "prosecute" but the same law says a tribunal’s role is to investigate or inquire. "What do they mean?" He offers no answer to the question.

128. Mr Manek submits there is nothing in s 4 of the Public Prosecutor (office and Functions) Act 1977 which enhances the performance of his prosecution function given by the Leadership Code and s 177(b) of the Constitution. His initial position was that it is the PP’s duty to prosecute the matter but later in his submissions he slightly changed his position and said PP’s role is simply to assist the tribunal with its inquiry.

129. Dr Nonggorr submits it is the duty of PP to prosecute the matter before the tribunal as mandated by s 29(1) of the Constitution and s 27(2) of the OLDRL.

130. In our view, the issue was settled by the Supreme Court in OC v Yama (2004) SC 747. The Supreme Court decided that the role of the PP before a tribunal under the Leadership Code is to "prosecute". However the Court did not define this word in the context of tribunal proceedings

131. In our view, PP’s duty to "prosecute" a leader does not mean "prosecute" in the traditional sense as in the case of bringing a criminal prosecution under the adversarial process. On the contrary, it refers to the whole process employed by PP in "bringing the proceedings" including:-

(a) deciding whether or not to bring a "prosecution" proceeding: s 29(1) and s 177(1)(b) of the Constitution;

(e) countering, by evidence or otherwise, any evidence or material produced by the leader to dispute the allegations;

(f) making submissions on the evidence and law to enable the tribunal to reach a determination or decision; and

(g) assisting the tribunal in any aspect of the inquiry where the tribunal may require his assistance.

132. An allegation of misconduct in office is of special nature. Whilst an allegation of acts constituting misconduct offence is not a criminal offence, it is serious in nature and some of them border on criminal offence. Such acts are expressly prescribed by constitutional law. The tribunal is required by law to make a finding of guilt and recommend a prescribed penalty. A finding of guilt has serious consequences for the leader. It is for these reasons that s 29(1) of the Constitution say OC shall refer the matter to the "Public Prosecutor for prosecution before a tribunal". PP is required by law to play an active role in deciding whether or not to bring a prosecution and after deciding to bring a prosecution, in referring the matter to the appropriate tribunal, presenting the allegations before the tribunal and seeking to prove the allegations. Once the appointing authority has determined the question of removal and appointed a tribunal, PP must step in and perform its constitutional function – to prosecute the leader before the tribunal. It must play an active part in seeking to prove the allegations, in order to protect the public interest. The Tribunal sits as an independent and impartial tribunal and it cannot be expected to perform his prosecution function. It is not the intention of s 29(1) of the Constitution that PP’s functions stop after he presents to the tribunal the allegations of misconduct accompanied by the Statement of Reasons prepared by the OC. It is not intended that he leaves it to the tribunal to conduct its own enquiry without his assistance and he becomes a passive observer of the proceedings, intervening only when invited by the tribunal for his assistance on a particular aspect of the inquiry.

2(a)(i): No. The PP must refer the matter to the NEC for decision on question of removal. If the NEC is satisfied the question of removal arises and it should be investigated, it should appoint a tribunal and advise the Head of State to act accordingly.

2(a(ii): Yes. The PP must refer the matter to JLSC to determine the question of removal. The JLSC is satisfied the question of removal arises and it should be investigated, it should appoint a tribunal.

2(a)(iii): No. The PP must refer the matter to the COHs’ relevant appointing authority to determine the question of removal. If the appointing authority is satisfied the question of removal ought to be investigated, it must request the Chief Justice to appoint a tribunal and the Chief Justice should appoint the tribunal as a matter of course.

2(b): Not necessary to answer this question. Once a tribunal is appointed, the PP must prosecute the matter before the tribunal.

134. This question relates to the role of appropriate leadership tribunals established under the Leadership Code and PP’s role before the tribunal. They also raise related issues on constitution of tribunals and nature of the inquiry conducted by tribunals appointed by appointing authorities to investigate other grounds of removal.

135. The questions set out in 3 (a) raise issues of composition of the tribunal. There is no question that in the case of law officers, the COHs’ appointing authority is given power to constitute, by appointment, members of the tribunal. The power to appoint includes the power to revoke the appointment of member(s) of the tribunal as constituted: Sch. 1.10 (4) of the Constitution.

Jurisdiction of tribunal to determine matters pertaining to its own jurisdiction

136. Question 3(b) relates to the tribunal’s power to question its own appointment and composition. Mr. Yalo submits a tribunal appointed to deal with a Leadership Code matter is not given any power to question its own jurisdiction and composition at any stage of its proceeding. Such issue should be taken up by the parties with the appropriate forum such as the Courts or the tribunal’s appointing authority. He submits in the Wani case, the decision on the appointment and composition of the tribunal was questioned and the tribunal correctly ruled that because the matter involving the Auditor-General was referred by the PP to the CJ under s 27 of OLDRL, the tribunal was correctly appointed by the CJ under s 27(7( c ) of OLDRL. In the Hitolo case, the matter involved an Ombudsman Commissioner. Mr Yalo submits the tribunal wrongly accepted the leader’s argument that the PP usurped the powers and functions of the appointing authority when he requested CJ to appoint a tribunal.

137. Mr Manek submits it is in the interest of justice that such matters be dealt with by the appropriate authority which appoints the tribunal. The tribunal has no power to determine those matters. He submits if there is any error in the appointment and composition of the tribunal, any decision reached by the tribunal would be ultra vires and of no effect.

138. Mr Jerewai submits the tribunal has no power to question its own appointment and composition but in the circumstances of a particular case, the tribunal may consider issues as to its jurisdiction.

139. Mr Narokobi submits the question whether the tribunal is constituted according to law is a matter which the tribunal as jurisdiction to consider.

141. Dr Nonggorr’s submissions on this issue is helpful. His main submission is that although there is no provision which confers jurisdiction on the tribunal to deal with issues pertaining to its own jurisdiction, as a matter of good practice, issues as to constitution of the tribunal is a jurisdictional issue which can be raised and dealt with by the tribunal at any stage of the tribunal’s proceedings and more appropriately dealt with as preliminary threshold issues at an early stage of the proceedings. He relies on a passage from De Smith (4th ed.) Judicial Review of Administrative Action 4th edition, (1980), at page 115, Lord Reid’s statement of principle in Anismiinic Ltd v Foreign Compensation Commission [1968] UKHL 6; [1969] 2 AC 147 at 112. It would be waste of time and resources for persons who wish to raise jurisdictional issues to go before the Courts to resolve those issues if the tribunal were to lack authority to deal with these issues.

142. In our view, the tribunal has inherent power to determine its own procedure where there is lack of provision. This power is partly derived from s 181(2) of the Constitution and s 27(4) of OLDRL, both of which empowers the tribunal to conduct due enquiry into the matter "without regard to legal formalities or the rules of evidence and may inform itself in such manner as it thinks proper". Issues pertaining to its own jurisdiction such as issues concerning the appointment of members of a tribunal by a person authorized to make the appointment and the tribunal’s constitution by persons who are authorized by law to sit in the tribunal are two of several important threshold jurisdictional issues which the tribunal itself has jurisdiction to consider and determine. Other jurisdictional issues include whether the tribunal has jurisdiction in the subject matter of the inquiry and whether proper procedures prescribed by law have been followed in referring the matter to the tribunal. The common law position is similar. It is summarized in De Smith, Judicial Review of Administrative Action, supra, at page 115:

"In so far as the question of a tribunal’s jurisdiction is conceived of as being determinable at the commencement, not at the conclusion of its inquiry, it is to be expected that the following matters will be treated as preliminary to the merits or as conditions of jurisdiction: whether the tribunal is properly constituted; whether the proceedings have been properly instituted by persons entitled to initiate them; whether process has been duly served; whether period of limitation has expired; whether the cause lies within the tribunal’s territorial competence; whether the value of the subject –matter lies within the monetary limits. None of these matters have been uniformly treated as jurisdictional; but it is clearly proper for a superior court to hold that an inferior tribunal lacks jurisdiction to embark on an enquiry unless the stage has been properly set."

143. These matters are fundamental to the tribunal’s very existence and terms of its inquiry and they should be raised and dealt with by the tribunal at an early stage of the proceedings as preliminary threshold issues before the tribunal embarks on the actual inquiry. It would be wrong in law and unfair to the parties appearing before the tribunal and the interested public, to allow the proceedings to commence, continue and be completed by a tribunal which lacks jurisdiction to deal with the matter in the first place, only to be quashed by a Court on judicial review. If the tribunal finds in the negative as to any one of these questions, it should decline to exercise jurisdiction on the matter, stop the inquiry and request the tribunal’s appointing authority to either rectify or cause to be rectified the error or in an appropriate case, disband the tribunal. The tribunal should simply decline to exercise jurisdiction and refer the matter back to the tribunal’s appointing authority.

144. The constitutional scheme under the Leadership Code and the removal provisions in respect of other grounds of removal is clearly that once the tribunal determines that it is duly constituted and has jurisdiction to deal with the matter, it should proceed with the inquiry and complete its investigation and make a final determination. It has no power to stop an inquiry midstream unless the tribunal is incapacitated from doing so by law.

145. Questions 3(c) and (d) are related and they can be dealt with together. What does "due enquiry" and "investigate and determine" mean? These phrases appear in s 28(1)(a), s 179(1), s 280(1) and s 181(2) of the Constitution; s 27(4) of OLDRL; s 5(1) and 6 of the OLCRGCOH. They are not defined.

146. The ordinary meaning of the word "enquiry" or to "enquire" means to ask someone for information about something and obtaining that information. The ordinary meaning of the word "investigate" means someone examines an event or situation to find out the truth about something: see Oxford Advanced Learners Dictionary, 6th Ed; Oxford University Press (2000). The two words are used in provisions referred to loosely and they should be read together. In general they refer to the nature of the proceedings before the tribunal. When read together, they give the tribunal power to ask of the parties appearing before them for information or material to support or refute allegations of misconduct and at the same time conduct their own examination of material placed before it in order to decide the truth of the allegations. The tribunal proceedings in that sense would be very much inquisitorial than adversarial. The phrase "due enquiry" means the tribunal should follow due process and conform to the law in conducting its enquiry in all its essential features.

147. In the book, Justice in Tribunals, 2nd Ed., Federation Press, 2006, at p187 – 189, Dr J R S Forbes discusses tribunal proceedings in Australia and other common law countries. After discussing the common law cases on the distinction between the "adversarial" procedure of the common law courts and the "inquisitorial" procedure employed by statutory tribunals, he states at p 187:

"There is a traditional distinction ... between the "adversarial" procedure of common law courts and the "investigative" or "inquisitorial" character of Royal Commissions and Courts in continental Europe. In an ideal "adversary" system, the judge is a passive recipient of evidence collected and presented by the parties alone. But that is not an example that tribunals are bound to follow, and sometimes they must make their own inquiries.....The Court’s powers to gather evidence for themselves are severely limited and at common law their authority to call witness is circumscribed, even in criminal cases. But a tribunal may adopt a pro-active, investigative role, whether or not it has a lawyer or someone else as "counsel assisting". (That arrangement has its own drawbacks such as expenses and greater formality, but it eases the tribunal’s burden and reduces the risk of "involvement" and apprehended bias).

"Subject to natural justice and its own character, a tribunal is the master of its procedures. A duty to act "judicially" does not mean that the tribunal must imitate a court... Subject to natural justice, tribunals may act on their own knowledge and make their own inquiries, be they factual of (if members have the appropriate expertise) scientific. Indeed it has been suggested that fairness to an unrepresented party may require a tribunal to elicit information which that party has failed to provide. But it is not obliged to "make a party’s case", or to point out deficiencies in a case before it makes a decision".

148. It is the tribunal’s duty to conduct "due enquiry" and "investigate and determine" the allegations relating to the relevant ground of removal. Inquiry and investigation normally involves a hearing conducted in a fixed venue and date where parties are expected to attend. The tribunal sits to determine its own procedures and issues directions as to giving notice of the venue, date and time of the hearing, legal representation of the parties, and the manner and form in which parties appearing before it should be heard by way of giving evidence or making submissions. The tribunal would not be expected to conduct an investigation in the same way as that of OC or the appointing authority. In general, the tribunal sits to receive material presented by the parties and determine the truth of the allegations.

149. As to whether or not the inquiry should be conducted in public, OLDRL, s 27(6) says "the tribunal shall announce its decision in public" but does not say if the actual inquiry should be conducted in public. It depends on the wording of the legislation. If the legislation requires a public hearing, the public cannot be excluded from attending the hearing. However, there is a discretion in the tribunal to "exclude the public if that is necessary to do justice": F R S Forbes, Justice in the Tribunals, at p171, at par 12.4, Re Manwaring [1977] 2 QD R 613. The tribunal should decide at the outset whether the inquiry should be conducted in public. Whether the inquiry is conducted in private or public, the tribunal must announce its decision in public.

150. As to the main features of the procedure, we adopt the summary of essential features suggested by Dr Nonggorr as a guide and add several other features of our own. The main features include:-

a. The tribunal must first resolve jurisdictional issues and assume jurisdiction to deal with the matter.

b. After the tribunal has assumed jurisdiction, the tribunal must commence and complete the inquiry. Parties should allow the tribunal to complete the inquiry without unnecessary interference by parties: Paul Pora v Justice Sakora & two other constituting the Leadership Tribunal [1997] PNGLR 1.

c. In conducting the inquiry, the tribunal is not bound by legal formalities and rules of evidence. The tribunal may determine its own procedure: s 28(1)(a), s 280 (1) & s 181 (2) of the Constitution; s 27 (4) of OLDRL; s5(1) & s 6 of OLGRICOH.

d. The tribunal must enquire into the matter and inform itself in such manner as it thinks fit. This includes conducting its own investigation into the matter to establish the truth or otherwise of the allegation. The tribunal is not a Court and its proceeding are not judicial proceedings. Its proceedings are not strictly adversarial but largely inquisitorial in nature.

e. In performing its investigative function, the tribunal may require the production of important evidence which parties may have overlooked. It may also visit the scene of the alleged activity and take notes and photographs in order to clarify any part of the evidence.

f. The tribunal must observe the principles of natural justice throughout the proceedings in ensuring that the proceedings are conducted fairly in that:-

(ii) The principles of natural justice includes allowing parties to be represented by legal counsel: see Kruger v Pharmacy Board of South Australia (1979) 22 SASR 339.

(iii) Parties must be given the opportunity to contest any evidence produced by the other party by way of examination of witnesses and documents and make submissions on both guilt and penalty.

(iv) It must give reasons and good reasons for decision to support its finding on guilt and recommendation on penalty: Ombudsman Commission v Peter Yama (2004) SC 747.

(v) Members of the tribunal must not have an interest in the outcome of the proceedings and must act or seen to be acting fairly and impartially throughout the proceedings. They must remove themselves from any form of undue influence by parties or other interested persons. They must be free of bias.

g. The onus of proof is on the party alleging the commission of the misconduct offence. The onus falls on the Public Prosecutor, to prove the allegations to the tribunals satisfaction.

h. The Public Prosecutor must prosecute the matter. The word "prosecute" or "prosecution" in the context of the tribunal has a special meaning: see par 127 - 129, ante.

i. The standard of proof is settled in James Ekip Mopio [1981] PNGLR 416. The Court must be reasonably satisfied as to the truth of the allegations. The standard is above the civil standard but below the criminal standard of proof.

j. The tribunal must consider the whole of the evidence and make a determination as to the guilt or innocence of the COH in respect of each allegation of misconduct in offence.

k. If found guilty, the tribunal must determine the appropriate penalty and recommend the same to the appointing authority.

l. The decision on guilt and penalty and reasons for decision must be announced in public.

Role of PP before Tribunal – Duty to prosecute COHs for misconduct in officer under the Leadership code

151. The issue was settled by the Supreme Court in OC v Yama (2004) SC 747. The Supreme Court decided that the role of the PP before a tribunal under the Leadership Code is to "prosecute". We have already dealt with what "prosecution" means in Question 2.

152. Questions 3(e)(i), (f)(i) and (g)(i) are related and they can be dealt with together. We have already said in Question 1 that Leadership Tribunal established under ss 179, 180 and 181 of the Constitution and s 4 of OLGRICOH has jurisdiction to investigate and determine allegations of misconduct in office under the Leadership Code, in which question of removal arises. The tribunal is required to determine if the allegations are proved and make a finding of guilt or innocence on each and every allegation of misconduct in office. This requirement is implicit in the phrase "is guilty of misconduct in office" appearing at the end of the act constituting misconduct in office prescribed in the Leadership Code.

153. Upon a finding of guilt, the tribunal is required to recommend an appropriate penalty prescribed by s 28(1A) of the Constitution, OLDRL, s 27(5) and Leadership Code (Alternative Penalties) Act. These penalties range from reprimand to removal or dismissal from office under the Leadership Code. In respect of COHs, removal or dismissal from office appears to be the only penalty prescribed for all grounds of removal which the tribunal may recommend: see ss 179(2) and 180(2) of the Constitution and s 8(2) of OLGRICOH. To the extent that the Leadership Code (Alternative Penalties) Act provides for penalties other than dismissal as it applies to COHs, there is an inconsistency between the constitutional law provisions and the provisions of the Act. Alternatively, there is a gap in law. It is for Parliament to correct the inconsistency or fill the gap.

154. In relation to question 3(e)(ii), (f)(ii) and (g)(ii), clearly a Tribunal appointed under ss 179, 180 and 181 of the Constitution has jurisdiction to investigate matters concerning other grounds of removal specified in the respective provisions namely inability, misbehaviour and breach of employment conditions. If the tribunal finds that the allegation is established or proven, the only penalty that the tribunal may recommend is removal or dismissal. The tribunal’s power to recommend removal is expressly provided by s 179(2) and s 180(2) of the Constitution and s 8(2) of OLGRICOH. A Tribunal appointed to investigate these other grounds of removal has no power to impose the penalties prescribed under the Leadership code. To the extent that a Tribunal cannot recommend a penalty other than dismissal on those grounds, there is an inconsistency or a gap in the law which should be left to the Parliament.

2. Tribunals established by appointing authorities to determined other grounds of removal.

155. All parties correctly agree that both OC and PP have no role to play in respect of tribunals established by appointing authorities to investigate grounds of removal other than for misconduct in office under the Leadership Code.

156. The tribunal may engage legal counsel to assist it. His role is a neutral one. Parties should be allowed to be represented by legal counsel: see Kruger v Pharmacy Board of South Australia, (supra). Their role is to present their client’s case and also to assist the tribunal.

157. Our views expressed on addressing issues as to jurisdiction, following due process in conducting due enquiry and investigation and determining misconduct charges and observing principles of natural justice throughout the proceedings under the Leadership Code, in para 140 – 150 (supra), also apply to tribunals established to deal with other rounds of removal.

158. The tribunal is given power to determine its own procedure: s 181(2) of the Constitution, s 6 of OLGRICOH and s 224 of the Constitution. The tribunal should formulate its own rules of practice and procedure on a case-by-case basis. We consider certain features of such procedure to be essential and we simply state them for future guide. They include:

b. Place and manner of keeping official records of enquiry including officer appointed to keep such records, place of filing documents and sealing of documents.

c. Notice of commencement of enquiry to all persons or authorities having an interest in the matter.

e. Confirmation of tribunal’s composition and terms of enquiry as per the referral.

g. Legal representation of the referring authority, the COH and other interested persons or authorities.

h. Manner and form in which evidence or material is presented before the tribunal.

j. Opportunity given to all interested persons to contest the evidence or material.

l. Publication of findings on culpability or guilt and recommendation on penalty including reasons for decision.

3. 3(c): "Due enquiry" means the tribunal conducting a hearing and following due process of law and complying with principles of natural justice.

4. 3(d): "Investigate and determine" means receiving evidence or material and making a decision on whether the leader is guilty of misconduct in office and recommend a penalty.

5. 3(e)(i): Yes. The tribunal may impose punishment ranging from reprimand to dismissal.

7. 3(g)(i): Yes. The tribunal may impose penalties ranging from reprimand to dismissal.

160. This question is misconceived. The appropriate authority referred to in s 28(1)(g)(ii) and s 28(1)(A) of the Constitution refers to the authority to whom a Tribunal makes a recommendation on penalty. Section 28(3)(a) of the Constitution says the appropriate authority in respect of leaders referred to in s 26(1)(a), (b), (c) or (d) of the Constitution is to make the recommendation on penalty to the Head of State. Section 28(7)(b) says, in any other case, meaning COHs included, the appropriate authority is the COH’s appointing authority. Section 27(7) of OLDRL defines "appropriate authority" to mean the same the "appropriate authority" referred to in s 28(1)(g)(ii) and s 28(1A) of the Constitution. These provisions are not referral provisions.

161. The "appropriate authority" referred to in s 29(1) and s 30 of the Constitution refers to another investigative authority referred to in s 28(1)(f) of the Constitution. For instance, an investigating authority appointed by OC under s 19(1) of the OLDRL. Such other authority has power to refer the matter to the Public Prosecutor: Chan v Investigating Authority into the Placer Pacific Ltd Share Issue [1988] PNGLR 43.

QUESTIONS	ANSWERS

Question 1 – LEADERSHIP CODE JURISDICTION, ETC	Answers to Question 1.
1(a) Do the provisions of Part III – Division 2 (Leadership Code) of the Constitution and the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) provide a distinct and complete process for investigating and prosecuting alleged misconduct in office arising from breaches of the provisions of those Constitutional Laws?	1(a): Yes. The PP must refer the matter to COHs’ appointing authority to determine question of removal.
1(b) Do Sections 179, 180 and 181 of the Constitution provide a process distinct from the Leadership Code and the OLDRL to investigate the issue of removal from office of the Chief Justice, a Judge (other than the Chief Justice) a Law Officer and the Chief Magistrate?	1(b): Yes. The PP must refer the matter to the COH’s appointing authority to determine question of removal.
1(c) Does Part III (Sections 3 – 9) of the Organic Law on the Guarantee of Rights and Independence of Constitutional Office-Holders (OLGRICOH) provides for a process distinct from the Leadership Code and the OLDRL to investigate the issue of removal from office of any other Constitutional Office-Holder other than those referred to under question 1(b)?	1(c): Yes. The PP must refer the matter to the COH’s appointing authority to determine the question of removal.
1(d) Can the Ombudsman Commission or other appropriate authority referred to under Section 28(1)(f) of the Constitution refer alleged misconduct in office by a Constitutional Office-Holder to authorities other than the Public Prosecutor and an appropriate leadership tribunal referred to under Section 27(1) of the ORDL?	1(d): (i) Yes, provided the condition prescribed by s 29(2) of the Constitution is satisfied, OC must refer the matter to COH’s appointing authority to determine question of removal. (ii) An investigation authority appointed under s 28(1)(f) of the Constitution and s 19(1) of OLDRL must refer the matter to PP only.
1(e) If the answers to Question 1(a), 1(b) and 1(c) are answered I the affirmative, is it proper to conduct investigations separately but simultaneously under any of the process?	1(e): Yes. In respect of actions which constitute other grounds of removal and also misconduct in office under the Leadership Code.
1(f) If the answers to question 1(a), 1(b) and 1(c) are answered in the negative, should an investigation under the Leadership code and OLDRL await the conclusion of any investigation conducted under Sections 179, 180 and 181 of the Constitution and/or part III (Sections 3 – 9) of the OLGRICOH?	1(f): No.
1(g) What is "reasonable period", referred to under Section 29(2) of the Constitution?	1(g): "Reasonable period" in s 29(2) of Constitution and s 28(3) of OLDRL means between one to four months except where special circumstances of a particular case requires a longer period.

QUESTION 2 – PUBLIC PROSECUTOR’S JURISDICTION AND POWERS	Answers to question 2
2(a) Where the Public Prosecutor determines under Section 177(1)(b) of the Constitution that he should proceed with a matter relating to alleged misconduct in office by a Constitutional Office-holder referred to him by the Ombudsman Commission under the Leadership Code, does he have jurisdiction to:
(i) in the case of the Chief Justice; request the Head of State to appoint an appropriate leadership tribunal (referred to under Section 179 and 181 of the Constitution and Section 27(7)(a) of the OLDRL), acting with, and in accordance with, the advice of the National Executive Council to investigate the matter?	2(a)(i): No. The PP must refer the matter to NEC to determine the question of removal. If NEC is satisfied the question of removal ought to be investigated, it will appoint a tribunal and advise the head of State to act accordingly.
(ii) in the case of a Judge (other than the Chief Justice); the Public Solicitor; or the Chief Magistrate; request the JLSC to appoint an appropriate leadership tribunal referred to under Section 180 and 181 of the Constitution and Section 27(7)(b) of the OLDRL to investigate the matter?	2(a)(ii): Yes. The PP must refer the matter to JLSC to determine the question of removal. If JLSC is satisfied the question of removal arises and should be investigated, it should appoint the tribunal.
(iii) in the case of any other Constitutional Office-holder, request the Chief Justice to appoint an appropriate leadership tribunal referred to under Section 27(7)(b) of the OLDRL and Sections 1 and 4 of the OLGRICOH to investigate the matter?	2(a)(iii): No. The PP must refer the matter to the appointing authority to determine the question of removal. If the appointing authority is satisfied the question of removal arises and it should be investigated, it must request the Chief Justice to appoint a tribunal and the Chief Justice should appoint the tribunal as a matter of course.
2(b) If the answers to Questions 2(a)(i), 2(a)(ii) and 2(a)(iii) are all answered in the affirmative, does the Public Prosecutor have jurisdiction to assist the appropriate tribunal in each case?	2(b): Once a tribunal is appointed, the PP must "prosecute" the matter before the tribunal.
2(c) If the answer to Questions 2(a)(i), 2(a)(ii) and 2(a)(iii) are all answered in the negative, is the Public Prosecutor obliged to refer the matters of alleged misconduct in office in each case referred to in Question 2(a) to the appropriate appointing authority?	2(c): Yes.
QUESTION 3 – JURISDICTION AND POWERS OF APPROPRIATE LEADERSHIP TRIBUNALS	Answers to question 3
3(a) Are the appropriate leadership tribunals referred to under Sections 179, 180 and 181 of the Constitution, Section 27(7) of the OLDRL and Section 4 of the OLGRICOH obliged to complete their investigations and make final determination of the referred misconduct by a leader?	1. 3(a): Yes.
3(b) Do the appropriate leadership tribunals referred to under Sections 179, 180 and 181 of the Constitution, Section 27(7) of the OLDRL and Section 4 of the OLGRICOH, having been appointed according to law, have jurisdiction to question the validity of their own appointment and composition?	2. 3(b): Yes.

QUESTIONS	ANSWERS
3(c) What does "due inquiry" required under Section 27(4) of the OLDRL mean?	3. 3(c): "Due inquiry" means the tribunal conducting a hearing and following due process of law and complying with principles of natural justice.
3(d) What does "investigate and determine" required under Section 28(1)(g)(1) of the Constitution mean?	4. 3(d): "Investigate and determine" mean receiving evidence or material and making a decision on whether the leader is guilty of misconduct in office and recommend a penalty.
3(e) Does the Tribunal established under Sections 179 and 181 of the Constitution have jurisdiction –
(i) investigate Leadership Code matters that might lead to dismissal from office?	3(e)(i): Yes.
(ii) to investigate matters that might lead to dismissal from office?	(ii): Yes.
3(f) Does the Tribunal established under Sections 180 and 181 of the Constitution have jurisdiction—
(i) to investigate Leadership Code matters that might lead to dismissal from office?	3(f)(i): Yes.
(ii) to investigate other matters that might lead to dismissal from office?	(ii): Yes. The tribunal can recommend a penalty of dismissal.
3(g) Does the Tribunal established under Section 4 of the OLGRICOH have jurisdiction—
(i) to investigate Leadership Code matters that might lead to dismissal from office?	3(g)(i): Yes. The tribunal can recommend a penalty ranging from a reprimand to dismissal.
(ii) to investigate other matters that might lead to dismissal from office?	(ii): Yes. The tribunal can only recommend a penalty of dismissal.
QUESTION 4 – JURISDICTION OF APPROPRIATE APPOINTING AUTHORITIES	Answers to question 4
4(a) Does an appropriate authority other than the Ombudsman Commission referred to under Section 28(1)(g)(ii) and 28(1)(A) of the Constitution and Section 27(7) of the OLDRL have jurisdiction to refer a leader to the Public Prosecutor for prosecution under the Constitution and the OLDRL for alleged misconduct in office?	Not necessary to answer this question.

Nemo Yalo, Counsel to the Commission: Lawyer for Ombudsman Commission
Chronox Manek, Public Prosecutor: Lawyer for Public Prosecutor
Jerewai Lawyers: Lawyer for Judicial & Legal Services Commission
Nonggorr Lawyers: Lawyer for Ombudsman Appointment Committee, Public Service Commission Appointment Committee, Auditor-General Appointment Committee & Electoral Commission Appointment Committee
Narokobi Lawyers: Lawyer for National Executive Council
Henaos Lawyers: Lawyer for Clerk of Parliament