Legal Index: L
The Leadership Code — what must be proved to establish misconduct in office under section 27 of the Constitution, and why personal gain is not an element of it.
The Leadership Code — misconduct in office
Section 27 of the Constitution imposes duties on persons to whom the Leadership Code applies. Breach is misconduct in office, investigated by the Ombudsman Commission and determined by a Leadership Tribunal established under the Organic Law on the Duties and Responsibilities of Leadership.
Peipul v The Leadership Tribunal [2002] PGSC 1; SC706 (Supreme Court)
A Minister was found guilty by a Tribunal on five allegations of misconduct in office and dismissal from office was recommended on each. His appeal against the findings of guilt was dismissed.
The Court settled the structure of section 27, and the answer matters because it disposes of the argument most often run by leaders facing charges.
Section 27(1) is self-executing and stands alone. Each of paragraphs (a) to (d) is disjunctive and stands alone: each can be pleaded and charged separately as an offence and can be sustained without the others. They are drafted in the alternative.
Subsections (2), (3) and (4) are also self-executing stand-alone provisions. Failure to comply with the requirements and duties imposed by each will result in a finding of guilt.
“Personal gain” is not a necessary element to sustain a finding of guilt under any of paragraphs 27(1)(a) to (d). A leader who fails to carry out any of the obligations imposed by subsections (1), (2) or (3) commits misconduct in office.
Section 27(2) is not conjunctive with subsection (1). It separately prohibits using a leader’s office for personal gain, or entering into any transaction or engaging in any enterprise that might be expected to give rise to doubt in the public mind as to whether the leader is carrying out, or has carried out, the duty imposed by subsection (1).
The argument the Court rejected was a structural one: that subsection (1) states a general duty which only becomes actionable through subsection (2), so that without a “transaction” or “enterprise” producing personal gain a leader cannot be liable at all.
Because each subsection and each paragraph stands alone, that argument fails. A leader may be found guilty of misconduct in office without any evidence of benefit to themselves — it is enough that the conduct placed them in a position of conflict, demeaned the office, called their integrity into question, or diminished respect for the integrity of government.
The Court also rejected a submission that the leader should have had the benefit of Schedule 1.5 (fair and liberal meaning) and section 158(2) (dispensation of justice) of the Constitution as an aid to a narrower reading.
Among the findings upheld was that the leader had not disclosed his relationship with a proposed candidate for appointment, and that this relationship amounted to an indirect beneficial interest which should have been disclosed to the National Executive Council before it deliberated on the matter.
A further argument — that arranging the later revocation of the appointment “cured” the breach — did not succeed. The breach was complete when the duty to disclose was not performed.
The practical lesson is that disclosure is the duty. Undoing the transaction afterwards does not undo the failure to disclose it.
On the Ombudsman Commission’s own position, see Ombudsman Commission v Donohoe [1985] PNGLR 348, which holds that natural justice under Constitution sections 59 and 60 may apply to the Commission’s proceedings, and that an Organic Law cannot narrow a grant of jurisdiction made by the Constitution itself.
See also the Leadership Tribunal and the duties the Leadership Code imposes, conflict of interest and what happens at a tribunal.
This entry has no “different view” section: no Papua New Guinea decision was found departing from Peipul on the structure of section 27.