Understanding Papua New Guinea’s Complex Constitutional Leadership Accountability Mechanism – a Discussion on Re Public Prosecutor’s Power to Appoint a Leadership Tribunal [2008] PGSC 48 Paper presented by Vergil Narokobi, Legal Counsel Ombudsman Commission of Papua New Guinea

Outline of Presentation Introduction Papua New Guinea Political and Legal Context A Summary of the Leadership Code in Papua New Guinea Grounds for Removal from Office Who is Involved in this Process? A Brief Constitutional Comparison of Pacific States Leadership Accountability Mechanisms How Re Public Prosecutor’s Case Arose Main Points of the Decision Unresolved Issues and Challenges Conclusion

Alfred Kaiabe, former MP, dressed in traditional attire in Parl. “The success of a nation, we believe, depends ultimately on its people and their leaders.  No amount of careful planning in governmental institutions or scientific disciplines will achieve liberation and fulfilment of the citizens of our country unless the leaders - those who hold official positions of power, authority or influence - have bold vision, work hard and are resolutely dedicated to the service of their people.” (Constitutional Planning Committee Final Report, Chapter 3, para1.

Introduction “The persons appointed to all of these offices must be of undoubted integrity if they are to fulfil the trust that we believe should be placed in them.  They, in turn, should be protected from external pressure, although not in such a way that they become remote from the society in which they work.  A balance must be struck between the need for them to be able to perform their duties fearlessly and without hindrance, and the need to ensure that they carry out their work honestly and with due regard for the people of Papua New Guinea.” (CPC Report, chapter 14, para 5) This presentation is about the referral process of leaders under Papua New Guinea’s Leadership Code. It focuses on one category of leaders, known as Constitutional Officer Holders. The presentation looks at the case of Re Public Prosecutor’s Power to Appoint a Leadership Tribunal [2008] PGSC 48 to attempt to unlock the complex referral process. The case was initiated by the Ombudsman Commission under its powers pursuant to s 19 of the Constitution, to seek a binding opinion from the Supreme Court on a question relating to the interpretation and/or application of constitutional law. The laws under consideration are the Constitution, Organic Law on the Duties and Responsibilities of Leadership, Organic Law on the Guarantee of Rights and Independence of Constitutional Office Holders and Organic Law on the Terms and Conditions of Employment of Judges.

Papua New Guinea Political and Legal Context A home-grown Constitution that arose out of a process of consultation with the people. Much of the rationale for the present Papua New Guinea Constitution is contained in the Constitutional Planning Committee Final Report of 1974. A constitutional monarchy that establishes a liberal-democratic political system. Separation of powers is recognised in the Constitution. Independence of the judiciary is protected by the Constitution. A number of independent constitutional office holders have been created by the Constitution. In SCR No 1 of 1978; Re Ombudsman Commission Investigations of the Public Solicitor [1978] PGSC 7, [1978] PNGLR 345, 6 October 1978 the Court held constitutional offices are different from statutory bodies established by ordinary legislation as they were established by the people directly through the Constitution and not by Parliament Constitutional laws are defined as the Constitution and Organic Laws. They are considered the supreme law of Papua New Guinea.

Papua New Guinea National and Supreme Court Judges Judges are constitutional office holders under the Constitution.

A Summary of the Leadership Code in Papua New Guinea Only leaders covered by s 26 of the Constitution are subject to the Leadership Code. The Leadership Code consists of ss 26 to 31 of the Constitution, the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) and the Leadership Code (Alternative Penalties) Act 1976. The Ombudsman Commission has the primary role of supervising and enforcing the Leadership Code. The Ombudsman Commission is not involved when it is a question of “removal from office”. Leaders are expected to behave according to a set of ethical codes, primarily set out in s 27 of the Constitution and more specifically in the OLDRL. Failure to meet these standards results in misconduct in office. Penalties range from a fine, suspension from office to the maximum, which is dismissal from office.

Grounds for Removal from Office Section 178 of the Constitution sets out the grounds for removal from office. These grounds applies to a Judge, Public Prosecutor, Public Solicitor and Chief Magistrate. The grounds for removal are inability, misbehaviour and misconduct. The question of removal from office in relation to inability and misbehaviour are considered by the appointing authority and referred to an appropriate tribunal to inquire into.

Who is Involved in this Process? Leaders: In this case a constitutional office holder, comprising Chief Justice, Judges, Chief Magistrate, Public Prosecutor, Public Solicitor, A Member of the Ombudsman Commission, Electoral Commissioner, Auditor General, Member of the Public Service Commission and Clerk of Parliament; Ombudsman Commission; Public Prosecutor; Chief Justice; Appointing Authority; Appropriate Tribunal.

A Brief Note Constitutional Comparison of Pacific States Leadership Accountability Mechanisms Most of the examples from other Pacific Island states seems to suggest that only judges position have been established by the Constitution, and there are two models of dealing with them – either by impeachment through the legislature such as in Australia or through an independent tribunal such as in Cook Islands. Fiji’s new Constitution does seem to have extensive provisions dealing with establishment of an anti-corruption body. Solomon Islands has a Leadership Code Commission which is similar Ombudsman Commission’s functions conferred by the OLDRL. It also has provisions dealing with certain positions that relate to establishment of tribunals to deliberate on removal from office of certain positions such as the Public Service Commission. Vanuatu seems to have a similar set-up to Papua New Guinea but has a number of major differences, such as its Ombudsman Act is not a constitutional law, although the Ombudsman is provided for in the Constitution.

How Re Public Prosecutor’s Case Arose There has been two Leadership Tribunals dealing with Constitutional Office Holders. In the first one, successful prosecution led to the leader being dismissed from office. In the second one, the tribunal declared that it had no jurisdiction and declined to proceed further with the hearing. A number of constitutional issues arose and the Ombudsman Commission decided to seek a constitutional reference under s 19 of the Constitution to get the Supreme Court’s binding opinion on the interpretation and application of constitutional laws. The main issue was with regards to the referral process of a constitutional office holder and what the Public Prosecutors role would be in such a process.

Main Points of the Decision: Misconduct Constitutional Office Holder Appointing Authority Who the Public Prosecutor Refers to (after referral from Ombudsman Commission) Who Appoints Tribunal and its Composition and the role of the Public Prosecutor at the tribunal Chief Justice National Executive Council (NEC) NEC NEC appoints three Judges or former judges, one of whom is the chairman. The PP prosecutes at the tribunal. Other judges Judicial and Legal Services Commission (JLSC) JLSC JLSC appoints three Judges or former judges, one of whom is the chairman. The PP prosecutes at the tribunal. . Public Prosecutor Public Solicitor Chief Magistrate Auditor-General NEC requests Chief Justice to appoints three judges. PP prosecutes at the tribunal. Clerk of Parliament NEC requests Chief Justice appoint three judges. PP prosecutes at the tribunal. Member of Electoral Commission Electoral Commission Appointment Committee ECAC ECAC requests Chief Justice to appoint three judges. PP prosecutes at the tribunal. Member of the Public Service Commission Public Services Commission Appointment Committee PSCAC PSCAC requests Chief Justice to appoint three judges. PP prosecutes at the tribunal. Member of the Ombudsman Commission Ombudsman Appointment Committee OAC OAC requests Chief Justice to appoint three judges. PP prosecutes at the tribunal.

Main Points of the Decision: Removal Constitutional Office Holder Appointing Authority Role of the Public Prosecutor and Ombudsman Commission Tribunal and Composition of the Tribunal and its role Chief Justice NEC OC and PP have no role to play. NEC appoints three Judges or former judges, one of whom is the chairman. The PP prosecutes at the tribunal. Judge JLSC JLSC appoints three Judges or former judges, one of whom is the chairman. The tribunal proceeds like a commission of inquiry. Public Prosecutor Public Solicitor Chief Magistrate

Challenges and Unresolved Issues The Constitution attempts to balance independence of office and accountability. In the process it has become a lengthy, complex and costly exercise. For example concurrent investigations can be carried out by the Ombudsman Commission and the Appointing Authority. The Supreme Court appears to have considered the old provision of the OLDRL, s 27(4) of OLDRL in its deliberations. Rules of evidence for removal under ss 178 to 181 of the Constitution is lower than for misconduct offences under the OLDRL. They used to be the same. Recent Supreme Court decision on the Prime Minister that Public Prosecutor must refer the same matter to the Chief Justice, raises the issue of whether the Appointing Authority must refer the same matter to the Tribunal that comes to it from the Public Prosecutor.

Conclusion Thank you for your attention.