Before: Pae: Palmer, J
Hearing: 23rd October, 1997 - Ruling: 31st October,
1997
Counsel: Director of Public Prosens for the
Crown; A. Nori for the Defendant
p>
PALMER J.:
The Defendant has been charged under section 7(a) of
the Leadership Code (Further Provisions) Act 1979
(hereinafter
referred to as "the Act") for
failing as a Leader to give a statement for the period
between 2nd July,
1982 to 22nd June, 1995, in respect of
herself to the Commission as required by section 5(1) of
the Act. The Defendant
entered a plea of not guilty but
with a note from learned Counsel, Mr Nori, that it may
change subject to the ruling
of this Court in this
application.
The learned Director of Public Prosecutions has not
objected to the hearing of these preliminary issues.
Point number one raised by Mr Nori is that the
Leadership Code Commission cannot compel leaders to
complete the
current form used and have them charged for
failing to complete them in the absence of any
regulations under section
25. He submits that regulations
are necessary for the better carrying into effect of the
provisions of the said
Act and in particular for the
manner in which leaders may obtain advice regarding
compliance with Parts II and
III of the Act. In the
absence of regulations governing the manner in which
Leaders may seek advice it would be
illogical to make
such demands under the Act.
The second point raised was that failing to give a
statement is not an offence. Rather, the offence is
created only
where there has been a failure to make a
declaration of assets and financial affairs that a Leader
has. If the
leader has nothing to declare or disclose,
then he/she is not obliged to disclose anything. It is
only when the
leader considers or believes to the best of
his/her knowledge that there is something to disclose,
that he/she
is obliged to make a declaration, and if
he/she fails, then proceedings may be instituted for
misconduct.
The learned Director on the other hand, submits that
the requirements of section 5(1) are very clear and that
there
should be no cause for confusion as to the offence
created by section 7(a) of the Act.
Section 5(1) of the Act states:
"Every leader shall, within three months
of the date of commencement of this Act or of his
becoming
a Leader, and thereafter at intervals not
exceeding two years, give a separate statement in
respect of
himself, his spouse and each of his
children under the age of eighteen setting out to the
best of his knowledge-
(a) all directorships in any company or
corporation held by each of them;
(b) the business occupations of each of them;
(c) the holdings of each of them of any shares of,
or debentures or other securities charged upon,
any company or corporation;
(d) The total income received by each of them
during the period to which the statement relates and
the sources
of each of those incomes;
(e) all business transactions involving a sum
of five hundred dollars or more entered into by each
of them
during the period to which the statement
relates;
(f) subject to subsection (4), all gifts
received by each of them during the period to which
the statement
relates, and the value of each of such
gifts; and
(g) the assets acquired by each of them during
the period of which the statement relates. "
And section 7(a) reads:
" Any Leader who -
(a) fails without reasonable excuse (the burden
of proof of which shall be upon him) to give to the
Commission
a statement as required under section 5;
... is guilty of misconduct in office."
The gravamen of section 7(a) is the failure to give a
statement as required under section 5. Failure per se
however
does not necessarily mean an offence has been
committed, because if any Leader can come up with a
reasonable excuse,
then he/she may have a valid defence.
It is vital therefore to identify what section 5 requires
from a Leader.
Section 5(1) in my respectful view sets
out in very plain and clear terms the following
requirements:
(i) within three months of commencement of the
said Act, or
(ii) within three months of his becoming a Leader,
a Leader is required to give a separate statement in
respect of himself, his spouse and each of his children
under
the age of eighteen years setting out to the best
of his knowledge the matters specified in paragraphs (a)
to (g)
of section 5(1); and
(iii) at intervals of two years thereafter, to
give a statement.
According to section 7(a), an offence is created if
these two requirements are not complied with. No
discretion
is given to a Leader about the giving of a
statement. The language used is clear and in mandatory
terms - "shall
... give a separate statement . . .
.", within the time periods specified in the Act.
There is no beating
around the bush. Leaders are required
to give a statement within 3 months of appointment as a
leader, and at intervals
of two years thereafter. It
definitely did not say that a Leader may give a statement
within three months of his
appointment, or at intervals
of two years when he feels like it, or when he considers
there is something to declare.
It also did not say that
if the leader considers there is nothing to declare or
disclose that he/she is not obliged
to give any
statement. The reference to the words "to the best
of his knowledge" relate to matters spelled
out in
paragraphs (a) to (g). Whether he/she has anything to
declare or not does not affect the requirement imposed
by
section 5(1) of the Act. He/she is still obliged to give
a statement in the time periods stipulated under the
section and if he fails, an offence is committed.
On the issue of the absence of any Regulations, whilst
their existence would help in the better carrying out of
the provisions of this Act, there is no requirement
in the Act which says that the provisions of section 5
cannot be enforced in their absence. Section
5(1) is
clear and enforceable on its own. It is not dependent on
the enacting of any regulations. It is not correct
therefore to say that a Leader cannot be charged unless
regulations are in place.
Also on the issue of obtaining advice, there is no
requirement in the Act which states that unless the
regulations
are in place, that certain parts of the Act
may not be enforceable.
On the question of use of prescribed forms, again
there is no requirement under the Act for this. Until
this is
sorted out in the regulations, the Commission can
use any form it deems suitable.
ng>ORDERS DERS OF THE COURT:
Dismiss preliminary issues raised.
ter">ALBERT R. PALMER
THE COURT