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Konivaro v Zurenoc [2014] PGNC 40; N5724 (9 September 2014)

N5724

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 582 OF 2014

BETWEEN

VELA KONIVARO
Plaintiff

AND

HON. THEO ZURENUOC, MP
SPEAKER OF PARLIAMENT
First Defendant

AND

HON. PETER O'NEILL, CMG, MP
CHAIRMAN AND OTHER MEMBERS OF PARLIAMENT COMPRISING THE NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND

THE NATIONAL EXECUTIVE COUNCIL
Third Defendant

AND

PODI KOHU, AS ACTING CLERK OF PARLIAMENT
Fourth Defendant

AND

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant

Waigani: Makail, J
2014: 02nd & 09th September

JUDICIAL REVIEW – Leave to apply for judicial review – Review of decision to suspend – Suspension of Clerk of Parliament – Referral to Tribunal for investigation – Procedure for suspension and referral discussed – Organic Law on Certain Constitutional Officer-holders – section 7 – Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders – sections 5 & 9.

JUDICIAL REVIEW – Leave to apply for judicial review – Relevant principles – Locus standi – Delay – Exhaustion of alternative remedies – Arguable case – National Court Rules – Order 16, rule 3.

Cases cited:

Francis Damem v. Mark Maipaka as Minister for Justice & Ors (2004) N2730 Joseph Klapat v. NEC & Ors (2014) N5536
In the matter of the Grand Chief Sir Michael Somare; Re Leadership Tribunal (2011) N4224

Counsel:

Mr J. Issack, for Plaintiff
Mr T. Waisi, for Fourth Defendant
Mr E. S. Geita, for Fifth Defendant

RULING
09th September, 2014

1. MAKAIL, J: This is an application for leave to apply for judicial review pursuant to Order 16, rule 3 of the National Court Rules. Such application is discretionary. The principles upon which the discretion is exercised have been succinctly canvassed by counsel in their respective submissions. They are:

• Locus standi (or sufficient interest);
• Delay;
• Exhaustion of alternative remedies; and
• Arguable case.
  

Brief Facts

2. The plaintiff Mr Vela Konivaro is the Clerk of the National Parliament of Papua New Guinea. He was appointed to that position in May 2013. On 07th August 2014, the second and third defendants made a decision to suspend him and requested the Chief Justice to set up a Tribunal to investigate allegations against him. In that same decision, the fourth defendant was appointed as acting Clerk of Parliament. The decision was effected by way of a gazettal notice published in the National Gazette on 13th August 2014 and communicated to him on 20th August 2014. On 24th August 2014, he commenced proceeding to have the Court review the decision.

Plaintiff's Submissions

3. There is no issue that the plaintiff has standing to bring the application. He is the Clerk of Parliament and has been suspended. He has a direct and personal interest in the matter because he has been aggrieved by the decision to suspend and refer him to the Tribunal to investigate allegations of impropriety and misconduct against him. Similarly, there is no issue as to delay. He has brought his grievance to Court promptly.

4. The State did not take issue with the consideration on exhaustion of alternative remedies. It concedes to the submission that there is no other avenue for the plaintiff to seek redress and given that the plaintiff has been suspended by the second and third defendants, the Court is the only forum by which he may seek redress. It is necessary to consider this consideration in some detail because before the judicial review jurisdiction of the Court is invoked to inquire into alleged breaches in the decision making process by the Executive arm of Government or administrative decision making body, the Court must be satisfied that its judicial review jurisdiction has been properly invoked.

5. Counsel for the plaintiff points to the Organic Law on Certain Constitutional Office-holders and Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders and submits that they do not provide for an appeal process by which the plaintiff may appeal against his suspension and referral. The absence of an appeal or alternative process means that the Court is the only avenue for the plaintiff to seek redress.

6. As to the question of an arguable case, the plaintiff advanced a number of grounds which the State took issue with. The onus is on the plaintiff to establish an arguable case. He must show that the decision of the second and third defendants was wrong. The wrong decision must be a result of a failure by the decision making authority to follow prescribed procedure, lacked power or that the decision making authority acted unreasonably.

7. Counsel for the plaintiff submits that the decision was wrong because firstly, it was ultra vires. Counsel submits that the private investigation committee which investigated the allegations and made recommendations to the first defendant for the plaintiff's referral and suspension lacked jurisdiction because there is no law either in the Constitution, Organic Laws or Acts of Parliament granting this committee power to investigate the plaintiff.

8. Secondly, the decision was made in breach of the principles of natural justice. Counsel submits that the minimum requirement is to give the plaintiff an opportunity to be heard. The first defendant raised a number of allegations which the plaintiff says, had no substance against him, and asked him to tender his resignation within 14 days. Without according him the opportunity to be heard on the allegations and by requesting him to tender his resignation within 14 days, the first defendant had pre-determined his guilt and this was a denial of natural justice.

9. Thirdly, the decision was tainted with bias or that there was apprehended bias. Counsel submits that the first defendant unilaterally set up the private investigation committee purposely to investigate the allegations against the plaintiff and report to him. The Organic Law on Certain Constitutional Office-holders, which is the applicable law on appointment of the Clerk of Parliament is silent on the procedure for suspension, particularly, the authority to conduct preliminary investigations and making appropriate recommendations prior to the decision by the third defendant to suspend.

10. Counsel further submits that whilst this Organic Law is silent, section 7 provides for the appointment of the Clerk of Parliament and states that the Clerk of Parliament is appointed by the Head of State acting with, and in accordance with, the advice of the National Executive Council ("NEC"), after receiving reports from the Speaker and the appropriate Parliamentary Committee, in this case, the Permanent Parliamentary Committee on Appointments.

11. As this is the procedure for appointment, counsel submits that, the same procedure should apply to suspension of the Clerk of Parliament. That is to say, the Permanent Parliamentary Committee on Appointments should be the authority to investigate the allegations and make appropriate recommendations to the Speaker before the Speaker refers them to the NEC for decision. By not following this process and by unilaterally setting up the private investigation committee to conduct the investigation, it is reasonable to infer that the first defendant was biased and as a result the subject decision was actuated by bias.
12. Fourthly, the decision was made in bad faith. It was argued that the some of the allegations against the plaintiff were in relation to a clash between functions of the first defendant as Speaker of Parliament and the plaintiff as Clerk of Parliament. For example, the allegation of unauthorised workshop in Alotau for line managers to discuss Organisational Structure and Corporate Plan when it was the first defendant who directed that one is done. The first defendant contradicted himself and the plaintiff was merely complying with his direction. When the first defendant set up the private investigation committee to investigate this and other allegations, he acted in bad faith.

13. Finally, the decision was unreasonable. It was argued that although the plaintiff was not invited to respond to the allegations, he took the liberty to respond and denied them. He pointed out that the allegations had no substance, were frivolous and could be resolved administratively.

14. In summing up, counsel submits that the existence of these grounds establish that the decision by the second and third defendants to suspend the plaintiff was in excess of jurisdiction and procedurally flawed, and reviewable.

State's Submissions

15. Counsel for the State firstly submits that the manner in which the plaintiff has pleaded the grounds and relief in the statement in support made pursuant to Order 16, rule 3(2)(a) of the National Court Rules suggests that the plaintiff is seeking to have the Court review the decision of the NEC to suspend and refer him to the Tribunal to be investigated. If that is the basis of the application for leave, then the submissions he makes in relation to the procedure to be followed before the subject decision is misconceived because it was not the first defendant who made the decision to suspend him but the NEC.

16. Secondly, he submits that even if the Court were to accept the submission that the plaintiff seeks to have the Court review the process by which the NEC arrived at the subject decision, there is no prescribed procedure by which the first defendant and the NEC may follow to suspend the plaintiff. It was therefore open to the first defendant to apply ad hoc procedure for the purpose of conducting preliminary investigations before referring the findings to the NEC through the Prime Minster for deliberation and decision.

17. In applying the ad hoc procedure, the first defendant invited the plaintiff to resign but he refused. When he refused, the first defendant referred the allegations to the NEC through the Prime Minister and based on the recommendations by the private investigation committee, the NEC suspended him. In summary, the plaintiff's complaint that he has been denied natural justice and that the first defendant was biased and/or acted in bad faith is misconceived because by virtue of section 9 of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders, his right to be heard or response to the allegations is preserved and that he will be accorded accordingly when he appears before the Tribunal to respond to the allegations.

Consideration of the Application

18. After a consideration of these competing arguments, it appears that the question of suspension and referral of the Clerk of Parliament to a Tribunal for investigation has not been raised before. This case appears to be the first. There is no dispute that by virtue of section 221 (f) of the Constitution, the Clerk of Parliament is a Constitutional Office-holder and by virtue of section 7 of the Organic Law on Certain Constitutional Office-holders, the appointing authority of the Clerk of Parliament is the Head of State, acting with, and in accordance with, the advice of the NEC. Section 7 is set out in full below:

"7. Appointment.

The Clerk of the National Parliament shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council after receiving reports from the Speaker and the appropriate Permanent Parliamentary Committee."

19. But this Organic Law does not provide for the suspension and removal of the Clerk of Parliament. These are provided for in the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders. From a quick perusal of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders, it appears that suspension of the Clerk of the Parliament is not a one-off stand alone decision such that it is reviewable. I say this because from the scheme of things under this Organic Law, there is no separate procedure for suspension and removal of a Constitutional Office-holder from office, in this case, the Clerk of Parliament.

20. Contrast this position with suspension of Departmental Heads where it has been held that suspension is a one-off stand alone decision and is open to judicial review such as in the cases of Francis Damem v. Mark Maipaka as Minister for Justice & Ors (2004) N2730 and Joseph Klapat v. NEC & Ors (2014) N5536. In a case of suspension of a Departmental Head, there is a prescribed procedure set out in section 193(1D) of the Constitution, section 31D of the Public Services (Management) Act, 1995 and the contract of employment.

21. The Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders deals with prosecution of Constitutional Office-holders for misconduct in office. Part III deals with removal from office, from sections 4 to 9. Section 4 establishes the Constitutional Office-holders Rights Tribunal comprising of three Judges of the National Court. Section 5 deals with referral of matters to the Tribunal, section 6 deals with the procedures of the Tribunal, section 7 deals with the grounds of removal and section 8 deals with removal from office. Section 9 provides for suspension and it states:

"9. Suspension.

(1) Where a question has been referred to a tribunal under this Law, the appointing authority —

(a) may suspend the constitutional office-holder from office pending the report of the tribunal; and

(b) may remove the suspension at any time; and

(c) shall remove the suspension where the tribunal does not recommend removal from office.

(2) Unless otherwise determined by the Head of State, acting with, and in accordance with, the advice of the National Executive Council, the suspension shall be on full pay.

(3) Where at the time of the suspension a suspended constitutional office-holder was dealing with any quasi-judicial proceedings, he may continue and complete those proceedings, unless the appointing authority otherwise orders." (Underlining is mine).

22. Section 9 does not set out the procedure for suspension of the Clerk of Parliament but it does say in Sub-section (1) (a) that the Clerk of Parliament may be suspended from office pending a report of the Tribunal if a "question" has been referred to it by the appointing authority. The term to note here is "question" and the significance of this is that, it triggers the suspension. In other words, unless a "question" is referred to the Tribunal, there can be no suspension of the Clerk of Parliament. The only other provision that uses the term "question" is section 5. It states:

"5. Referral of matters to the tribunal.

(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." (Underlining is mine).

23. The "question" here is the removal from office of a Constitutional Office-holder, in this case, the Clerk of Parliament. If sections 5 and 9 are read together, it would appear that the question of removal is the sole question for the Tribunal to determine. Suspension of the Clerk of Parliament occurs after the question of removal from office is referred to the Tribunal.

24. Who determines the question of suspension? According to section 9 (1) of the Organic Law on Guarantee of the Rights and Independence of Constitutional Office-holders, it is the appointing authority. Under section 7 of the Organic Law on Certain Constitutional Office-holders, the appointing authority is the Head of State, acting with, and in accordance with, the advice of the NEC.

25. How does it determine the question of suspension or what is the procedure for suspending the Clerk of Parliament? As I observed earlier, there appears to be no procedure for suspension and I agree generally with the plaintiff's submission that the Organic Law on Certain Constitutional Office-holders, which is the applicable law on appointment of the Clerk of Parliament, is silent on the procedure for suspension, particularly, the authority to conduct preliminary investigations and making appropriate recommendations to the NEC on the question of suspension of the Clerk of Parliament.

26. Why is there no prescribed procedure for suspension? The answer lies in the point I made earlier under the consideration of exhaustion of alternative remedies. The Court must be satisfied that its judicial review jurisdiction has been properly invoked by the plaintiff before it can inquire into the alleged breach in the decision making process by the NEC.

27. And based on the foregoing discussion, I do not think that it was envisaged that suspension of the Clerk of Parliament be dealt with separately from the question of removal. In my respectful opinion, it is the question of removal from office that features prominently here and the question of suspension is consequent on it. This means that the plaintiff should seek leave to review the decision by the second and third defendants to request the Chief Justice to establish a Tribunal to hear and determine the allegations against him.

28. And I think this was the point counsel for the State was trying to make but not sufficiently clear enough when he submitted that the plaintiff's complaint that he has been denied natural justice and that the first defendant was biased and/or acted in bad faith is misconceived because his right to be heard or response to the allegations is preserved and that he will be accorded accordingly when he appears before the Tribunal to respond to the allegations.

29. Put it the other way, if the plaintiff seeks leave to have the Court review the decision to suspend him, he must also seek leave to have the Court review the decision to request the Chief Justice to establish a Tribunal to hear and determine allegations against him. Otherwise that part of the decision would remain unchallenged and must be implemented. If the Chief Justice proceeds to establish a Tribunal, the Tribunal would be obliged to hold its hearing to determine the allegations and the plaintiff would be obliged to attend the hearing. If this were to occur, there would be no utility in the application and this is fatal to the entire application.

30. The view I have formed that suspension of the Clerk of Parliament is not susceptible to judicial review is further fortified by the absence of prescribed procedure for suspension of Leaders under the Organic Law on Duties and Responsibilities of Leadership ("Leadership Code"). Prosecution of Leaders for misconduct in office under the Leadership Code begins with an investigation by the Ombudsman Commission either on its own initiative, or on complaint by any person under section 17 (c). Under section 20, the investigation is conducted in private and that the Leader is given a right to be heard by the Commission. Section 20 states:

"20. Proceedings of the Commission.

(1) Every investigation by the Commission or other authority under this Law shall be conducted in private.

(2) The Commission or other authority may hear or obtain information from any person who the Commission considers can assist and may make whatever inquiries it thinks fit and shall, before taking action under Subsection (4) notify the person whose conduct is being investigated.

(3) Nothing in this Law compels the Commission or other authority to hold any hearing and no person, other than the person whose conduct is being investigated is entitled as of right to be heard by the Commission.

(4) If, after an investigation, the Commission is of the opinion that there is evidence of misconduct in office by a person to whom this Law applies, it shall refer the matter to the Public Prosecutor for prosecution by him before the appropriate tribunal."

31. Under section 29 of the Constitution, where the Commission is satisfied that there is a prima facie case of misconduct against the Leader, it shall refer the matter to the Public Prosecutor for prosecution before a Tribunal. Section 29 is set out in full below:

"29. Prosecution of misconduct in office.

(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."

32. Under section 28 of the Leadership Code, where a matter is referred to a Tribunal, the Leader is suspended from duty on full pay: see also In the matter of the Grand Chief Sir Michael Somare; Re Leadership Tribunal (2011) N4224 on the question of suspension of a Leader.

33. In this case, as noted, the plaintiff also seeks leave to review the decision by the Head of State, acting on advice, and in accordance, with the advice of the NEC to request the Chief Justice to set up a Tribunal to investigate allegations of impropriety and misconduct against him. (see claim for relief in the Originating Summons and Statement in Support made pursuant to Order 16, rule 3 (a)). That being the case, and accepting the submissions advanced by counsel for the plaintiff, I am satisfied that it is arguable that the suspension and referral of the Clerk of Parliament for investigation by a Tribunal should follow the procedure used by the NEC to appoint the Clerk of Parliament under section 7 of the Organic Law on Certain Constitutional Office-holders.

34. If the reverse of the procedure for appointment were to be applied, it is arguable that a report must be presented by the Permanent Parliamentary Committee on Appointments to the NEC with appropriate recommendations as to the referral and suspension of the Clerk of Parliament for investigation by the Tribunal prior to the NEC making a decision. This submission has some force if section 36 of the Interpretation Act, is applied. Section 36 states:

"36. Implied power to remove or suspend.

(1) Where a statutory provision confers a power to make an appointment, the power includes power, subject to Subsection (2), to remove or suspend a person so appointed.

(2) The power provided for by Subsection (1) is exercisable only subject to any conditions to which the exercise of the original power of appointment was subject."

35. It is also arguable that the private investigation committee set up by the first defendant lacked jurisdiction to investigate the allegations against the plaintiff and the second and third defendants made a decision based on recommendations by an illegal body and the decision was illegal. The other reason is that it is arguable that the plaintiff was denied natural justice when he was not given an opportunity to respond to the allegations when one was expected.

36. Finally, it is arguable that the manner in which the first defendant dealt with the referral and suspension of the plaintiff from the time he gave an ultimatum of 14 days to the plaintiff to resign, not inviting the plaintiff to respond to the allegations and settling up a private investigation committee to investigate the plaintiff which led to the subject decision was made in bad faith, bias – real or otherwise and unreasonable.

Conclusion

37. In conclusion, as it appears this is the first time a case of referral and suspension of a Clerk of Parliament has been brought to Court, it highlights the need for clarification on the procedure leading up to the decision by the NEC to refer and suspend a Clerk of Parliament pending investigation by a Tribunal. For the foregoing reasons, I am satisfied that when the subject decision is considered in totality, there is no other avenue by which the plaintiff can seek redress of his grievance and the decision is reviewable.

38. I am further satisfied that the plaintiff has made out a case for a grant of leave and grant the application. I also order that the plaintiff file and serve a notice of motion to set the matter for hearing within 7 days of the date of this order pursuant to Order 16, rule 5 of the National Court Rules. Costs shall be in the cause and time shall be abridged.

Ruling and orders accordingly.
______________________________________________________________

Lawama Lawyers: Lawyers for the Plaintiff
Waisi Lawyers: Lawyers for the Fourth Defendant
Acting Solicitor-General: Lawyers for the Fifth Defendant