What Happens at a Leadership Tribunal?

A leadership tribunal is one of the few bodies in Papua New Guinea that can remove a sitting member of Parliament, a department head or a constitutional office-holder. Understanding what it is — and what it is not — explains most of the litigation around it.

How a tribunal comes into being

Section 28(1)(g) of the Constitution requires an Organic Law to establish independent tribunals that shall investigate and determine cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law.

The sequence is: Ombudsman Commission investigation → prima facie finding → mandatory referral to the Public Prosecutor under section 29 → request for the appointment of a tribunal → hearing.

The composition and appointment of tribunals is governed by the Organic Law on the Duties and Responsibilities of Leadership; tribunals dealing with senior leaders are typically composed of judges or senior judicial figures, appointed on request to the Chief Justice. See Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal [2008] PGSC 48; SC1011.

Not judicial proceedings — but not unconstrained

Three practical consequences:

• The rules of criminal procedure and evidence do not apply as such. The tribunal is inquisitorial in character: it investigates as well as determines.
• Natural justice does apply — through section 28(5) and through sections 59 and 60. The leader must know the allegations, have a real opportunity to answer them, and be judged by an unbiased tribunal.
• Double jeopardy does not arise. A tribunal and a criminal prosecution may both proceed on the same facts; neither bars the other.

The leading discussion of natural justice in this setting is Peipul v Leadership Tribunal [2002] PGSC 1; SC706. See also Nali v Leadership Tribunal [2006] PGNC 46; N3015 and Nilkare v Ombudsman Commission [1996] PGSC 2; SC498.

What a hearing looks like

1. The Public Prosecutor presents the allegations referred by the Commission.
2. The leader is entitled to be heard, to be represented, and to answer each allegation.
3. The tribunal investigates: it may call for documents and hear witnesses of its own motion.
4. The tribunal makes findings on each allegation — guilty or not guilty of misconduct in office.
5. If any allegation is sustained, the tribunal moves to penalty.

Dismissal is the default

Section 28(1)(g)(ii) requires tribunals, subject to subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position.

Section 28(1A) supplies the only route to a lesser penalty. An Organic Law may provide that where the tribunal finds:

• (a) there was no serious culpability on the part of the person found guilty; and
• (b) public policy and the public good do not require dismissal,

it may recommend some other penalty provided for by law. Both limbs must be satisfied. This is the “no serious culpability” finding that features in almost every contested penalty argument.

Who is the “appropriate authority”?

Section 28(3):

• for the Prime Minister, Deputy Prime Minister, Ministers, the Leader and Deputy Leader of the Opposition, other members of Parliament, members of Provincial Assemblies and Local-level Governments, and holders of elective offices declared under section 26(3) — the Head of State;
• for any other office to which the Division applies — the appropriate appointing authority.

After a dismissal

Section 31 disqualifies a leader dismissed for misconduct in office from election to any elective public office, from appointment as Head of State or as a nominated member of Parliament, and from appointment to a provincial legislature or executive or a local-level government body, for three years from the date of dismissal. Where there is doubt whether an office falls within that bar, section 31(2) makes the Ombudsman Commission’s decision final.

Can a tribunal decision be challenged?

Yes — not by appeal, but by judicial review in the National Court and, in constitutional matters, through the Supreme Court. The usual grounds are denial of natural justice, error of law, exceeding jurisdiction, or a defect in the referral or appointment process. See section 155(4) on the courts’ power to make orders necessary to do justice.