Kondra v Lenalia [2016] PGSC 44; SC1527 (21 June 2016)

SC1527

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCM No. 4 OF 2016

BETWEEN:
THE HONOURABLE BOKA KONDRA MP
Appellant

AND:
THE HONOURABLE JUSTICE SALATIEL LENALIA, HIS WORSHIP IGNATIUS KUREI & HER WORSHIP ROSIE JOHNSON AS CHAIRMAN AND MEMBERS OF THE LEADERSHIP TRIBUNAL
First Respondent

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Manuhu, J; David & Polume-Kiele, JJ.
2016: June, 15 & 21

PRACTICE AND PROCEDURE – Application for Stay – Relevant considerations – Public Interest – Exceptional Circumstance – Suspension by operation of law.

Case cited:
Gary McHardy v Prosec Security and Communications Ltd [2000] PNGLR 279 (SC646).

Counsel:
Ian Molloy & Lydia David, for the Appellant.
William Hagahuno, for the First Respondent.

21^st June, 2016.

1. BY THE COURT: This is the ruling on the application by the Appellant pursuant to section 19 of the Supreme Court Act and or section 155 (4) of the Constitution to stay the decision of the National Court made on 1^st March 2016 as well as the decision of the First Respondent made on 29^th May 2015 which found the Appellant guilty of six allegations of six misconduct in office and recommended that he be dismissed from office.
   
2. The Appellant is the Member of Parliament for North Fly Open Electorate. He was found guilty of misconduct in office by the First Respondent which recommended on 29^th May 2015 that he be dismissed from office as a Member of Parliament. This decision was stayed on 14^th July 2015 pending determination of judicial review proceeding, which proceeding was dismissed on 1^st March 2016. The Appellant filed an appeal on 5^th April 2016. This stay application is made in conjunction with that appeal.
   
3. The jurisdictional basis upon which this application stands is not disputed. Considerations relevant to grant of stay, both counsel agree, are as stated in McHardy v Prosec Security & Communication Ltd [2000] PNGLR 279 (SC646), and the Appellant has satisfied all those requirements. In addition, counsel for the Appellant agreed with the suggestion from the bench that public interest is a relevant consideration and submitted that it is in the public interest for the people of North Fly to have a representative in the National Parliament. Counsel for the First Respondent relied on case precedents on bail applications pending appeal and submitted that the Appellant has to show that an exceptional circumstance exists to warrant a grant of stay.
   
4. The Court has considered the submissions and the circumstances of this case. Before going into the merits of the application, it has to be pointed that the Court is seriously concerned that the Governor General has not acted on the recommendation to dismiss the Appellant. The recommendation to dismiss the Appellant was made on 29^th of May 2015. The Governor General did not act on the recommendation until 14^th July 2015 when the National Court stayed the recommendation of the First Respondent. The judicial review proceeding instituted by the Appellant was dismissed on 1^st March 2016. To date, the Governor General has not acted on the recommendation.
   
5. The Governor General is obliged to act on the recommendation promptly regardless. It is not for the Governor General to give any other consideration. He is required to act as soon as he receives the decision and recommendation. We note however there is no evidence before the Court to show that the Governor General has received the decision and recommendation.
   
6. With the concession that the Appellant has met all the requirements in McHardy, the Court only has to consider the issue of public interest and whether the Appellant must show exceptional circumstance.
   
7. In relation to public interest, it was submitted by Mr. Molloy that North Fly Electorate must have a representative in Parliament. A stay is therefore necessary. Mr. Hagahuno argued that the Appellant, having been found guilty of misconduct in office, should not be permitted to occupy a public office.
   
8. It is, however, futile to consider the arguments. The Appellant is already, by operation of law, namely section 28 of the Organic Law on Duties and Responsibilities of Leadership, suspended from duty as of 27^th October 2014. He shall remain suspended until either the Supreme Court quashes the First Respondent’s decision and recommendation or, if he fails in his appeal, until the Governor General acts on the recommendation. In the meantime, his suspension from duty cannot be stayed by this Court.
   
9. The argument on exceptional circumstance is misconceived. McHardy made it plain at page 285 that:
   

“...if no specific proviso or precondition is stipulated in a particular provision such as section 19 and the Court is simply empowered to exercise its discretion then that discretion ought not to be constrained by importation of epithets such as absolute, unfetted, special, exceptional, a reason or appropriate case.”

10. This Court reaffirms the ratio in McHardy and reject the argument that exceptional circumstance must be shown.
    
11. We would like to add that McHardy is not a public interest case. McHardy is a case that relates to a dispute over a contract clause on restraint of trade. These are private interest issues. This case is clearly a public interest case in that it raises Constitutional Law issues and issues of good governance. In appropriate public interest cases, it would be in the public interest that a person found guilty of misconduct in office be prevented from occupying a public office pending appeal. Respect for and confidence in the integrity of a public office is adversely affected when a person found guilty of misconduct in office continues to occupy a public office. In appropriate cases, public interest may override the considerations in McHardy.
    
12. The Court has also noted that the appeal is ready to be given a date for hearing. We trust that counsel would progress the appeal. Furthermore, with the issue of writs due in under a year for the next National General Election, a by-election may not be administratively possible if the Court refuses the stay application and the Governor General proceeds to dismiss the Appellant.
    
13. In the circumstances, we will grant the application and we so order.
    

Orders accordingly.
________________________________________________________
Pacific Legal Group Lawyers: Lawyer for the Appellant
Williams Attorneys :Lawyer for the First Respondent