The Supreme Court on 27 September 2019 ordered that the Leadership Tribunal re-commence its inquiry into allegations of misconduct by Honourable John Simon, MP, Member for Maprik Open (“the leader”).
The Leadership Tribunal suspended its inquiry temporarily on 15 July 2019 to address certain Constitutional questions that arose during the course of the Tribunal.
The questions relate to a period of time, where the Ombudsman Commission had only an Acting Chief Ombudsman, Mr Michael Dick and an Acting Ombudsman, Mr Richard Pagen. Section 217(1) of the Constitution requires the Ombudsman Commission to be composed of a Chief Ombudsman and two Ombudsmen. Section 14(3) of the Organic Law on the Ombudsman Commission (OLOC) then provides for a quorum of two members of the Commission to conduct its inquiry.
Consequently, when John Simon was referred, he was referred by only two Members of the Commission.
The leader questioned whether the referral by the Ombudsman Commission was valid as it was done by only two members of the Commission and not the full complement of three members.
After considering the leader’s arguments, the Tribunal referred four (4) questions to the Supreme Court to deliberate under Section 18(2) of the Constitution. Section 18(2) of the Constitution requires any court or tribunal to suspend its hearing and refer constitutional questions that arise in the course of its proceedings, to the Supreme Court to determine. The four (4) questions referred were:
- Whether or not this Tribunal has jurisdiction to inquire into and determine a leadership referral where the quorum in referring is two comprising the Chief Ombudsman and an Ombudsman; here it was acting Chief Ombudsman Michael Dick and acting Ombudsman Richard Pagen against the leader.
- What is the quorum within the meaning of Section 217(7) of the Constitution read together with the Organic Law on the Ombudsman Commission Section 14(3) which provides: “For the purposes of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two.”
- Whether or not Section 217 is conclusive as to the requirement of quorum for referral of a leader or are there exceptions.
- If so, by what authority are these exceptions, if any allowed.
The Supreme Court comprised of five (5) Justices, being Kandakasi DCJ, Batari, Cannings, David, Hartshorn JJ.
At the hearing of the Reference, leave to intervene and make submissions was granted by the Supreme Court to the leader, the Public Prosecutor and the Ombudsman Commission.
The leader of course argued that the Tribunal lacked jurisdiction because the Constitution in Section 217(1) required the Commission to be composed of three members, and in this case, as there were only two members, there was no Commission and therefore, it could not make lawful decisions, let alone a referral.
The Public Prosecutor and the Commission on the other hand argued that the court should take a liberal interpretation of the Constitution, and find that when reading Section 217(1) of the Constitution and Section 14(3) of OLOC, only two members making decision(s) would be lawful, as the requirements of a quorum in Section 14(3) were met, and therefore at the time, the Commission had jurisdiction to refer the leader.
The court after considering the various arguments of the three interveners, decided to accept the submission of the Public Prosecutor and the Commission. A liberal interpretation of the provisions of the Constitution and OLOC was necessary, as opposed to a literal or strict interpretation advanced by the leader.
In so doing, the court unanimously held that Section 217(1) of the Constitution should be read together with Section 14(3) of OLOC; the latter provision provided for a quorum of two members, and therefore only two members of the Commission deciding on a referral was constitutionally valid.
The Tribunal therefore, has jurisdiction to enquire into the alleged misconduct by the leader.
ANSWERS TO QUESTIONS REFERRED
Whether or not this tribunal has jurisdiction to inquire into and determine a leadership referral where the quorum in referring is two comprising the Chief Ombudsman and an Ombudsman
What is the quorum within the meaning of Section 217 (7) of the Constitution read together with the Organic Law on the Ombudsman Commission Section 14 (3)?
Whether or not Section 217 is conclusive as to the requirement of quorum for referral of a leader or are there exceptions
If so, by what authority are these exceptions, if any allowed.
Not necessary to answer