DID THE ATTORNEY GENERAL GET IT WRONG?

By BRYAN KRAMER

Minister of Justice & Attorney General Ano Pala published a press statement on 10th February 2015 in both daily newspapers in the form of a letter addressed to Governor of Gulf, Havilo Kavo.

Attorney General (AG) press statement was in response to Mr. Kavo's published media statement on 9th January 2015 and his letter to Gulf Provincial Assembly members stating that since he filed an appeal in the Supreme Court challenging his conviction by National Court by operation of Section 103(4) of Constitution he (Kavo) remains a Member of Parliament until his appeal is determined (decided).

AG noted in his letter to Kavo that having read various numerous legal opinions and advice from his own lawyers including Kavo's lawyers he was of the considered view that given Kavo's current criminal conviction, sentencing and ensuring status as a prisoner of the state, although he remains a Member of Parliament by operation of Section 103(4) of Constitution he is disqualified from the position of Governor.

AG submits that Kavo's is still subject to Section 27 of the Constitution. Section 27 covers responsibilities of office where a person subject to the Leadership Code which includes all Members of Parliament has a duty to conduct themselves in both public or official life and his private life not to demean (disgrace) his office or position.

Section 27(5)(a) of Constitution states that a person who is convicted of an offence or position or in relation to the performance of his functions or duties is "guilty of misconduct in office".

AG goes on to state that it is a well known fact that Kavo has been convicted and sentenced for an offence in respect of the position he held as Governor so the effect of this misconduct in office therefore Kavo is now "disqualified by law" from continuing to hold office as Governor.

Further Section 19(1)(e) of Organic Law on Provincial and Local Level Government says that if a Governor is "disqualified by law" he shall be deemed to have vacated the office of the Governor.

AG concludes by copy of his letter to the Assembly Clerk of Gulf Provincial Government is now advised to call a meeting of the Provincial Assembly in accordance with relevant applicable law including the Assembly Standing Orders and elect or appoint an Acting Governor.

So did the Attorney General get it right is his advice or is his considered view misconceived ???

The main laws of Papua New Guinea consist of–

(a) Constitution - the supreme law, all laws are subject to it
(b) Organic Laws - made by Parliament, authorised by and included in the Constitution.
(c) Acts of the Parliament; general laws or statues made by Parliament
(d) Laws adopted by Constitution (pre-independence Australian or English laws etc)
(e) the underlying law (common law system & customary law)

PNG's Constitution is 187 pages long with over 349 sections. Constitution is divided into 15 main parts. Each part covering a particular areas of law which are further divided into divisions, sub-divisions, sections and finally subsections.

Part VI or 6 of Constitution relates to "The National Government." It has five Divisions. Division 2 relates to National Parliament and is divided into nine sub-divisions letters A to I. Sub-division B covers Membership to Parliament, Sections 101-106.

Section 103 deals with qualification and disqualification of Membership to National Parliament. The section is divided into subsections 1 - 7.

Subsection 3 also referred to as Section 103(3) says that a person is not qualified to be, or to remain, a member of the Parliament if–

(a) he is not entitled to vote in elections to the Parliament (non-citizen under age etc) or

(b) he is of unsound mind (mentally ill); or

(c) subject to Subsections (4) to (7), he is under sentence of death or
imprisonment for a period of more than nine months; or

(d) he is adjudged insolvent (bankrupt) under any law; or

(e) he has been convicted under any law of an indictable (criminal) offence committed after the coming into operation of the Constitutional Amendment No. 24 Electoral Reforms; or

(f) he is otherwise disqualified under the Constitution.

Subsection 4 or Section 103(4) says that where a person is under sentence of death or imprisonment for a period exceeding nine months, the operation of subsection (3)(c) is suspended until the end of any statutory period allowed for appeal (40 days) or if he files an appeal then until his appeal is determined.

So if an MP is sentenced to more than 9 months in prison or to death his disqualification is suspended until 40 days period allowed to file an appeal expires or if he files an appeal challenging his sentence then until his appeal is determined by the Supreme Court.

So Kavo says that even though he was convicted and sentenced to more than 9 months in prison, he filed an appeal challenging his conviction and sentence therefore in accordance with Section 103(4) his disqualification is suspended until the Supreme Court first determines his appeal. If he loses his appeal then his disqualification takes effect and he is no longer a member of Parliament.

While many don't agree with with this provision (law) in principle it was to protect a person who maybe wrongfully convicted of a crime by the National Court. Without the protection of Section 103(4) an MP wrongfully convicted would automatically lose their seat, the Electoral Commission would be allowed to declare a by-election. If some years later he ended up wining his appeal his seat in Parliament would no longer be available to him. For this reason the legislators (law makers) of Constitution made provisions to suspend his disqualification where a person challenges his sentence until his appeal is determined.

On the other hand Attorney General Ano Pala says that although Section 103(4) preserves Kavo's right to remain a Member of Parliament until his appeal is determined, he is still subject to Section 27 of Constitution concerning Responsibilities of Office or Section 19 of Organic Law on Provincial and Local-Level Government, Vacancy in Office of Governor if disqualified by law.

Section 27 Responsibilities of Office comes under Division 2 of Part 3 of Constitution (Basic Principles of Government). Division 2 relates to Leadership Code laws Sections 26 - 31.

Section 26 - lists persons who are subject to leadership code;
Section 27 - outlines general responsibilities of office
Section 28 - authorizes the establishment of Organic Law to prescribe specific acts which constitute misconduct offences etc.
Section 29 - provides process and procedures for the prosecution of misconduct in office
Section 31 - Disqualification on dismissal.

A person subject to the leadership code found guilty of misconduct in office may only be removed or disqualified from office once he is "dismissed"

The process involves the Ombudsman Commission investigating allegations of misconduct in office referring the case to the Public Prosecutor for prosecution before a Leadership Tribunal (panel of three judges). If the Tribunal finds him guilty of misconduct in office it will then need to decide whether or not the misconduct is serious enough to justify dismissal from office.

Section 31 disqualification on dismissal says that a person who has been "dismissed" from office under Division 2 for misconduct in office is
not eligible to; elective public office; be nominated for member of the Parliament; or appointment to a provincial assembly or provincial executive, including the office of Governor),LLG for a period of three years after the date of his dismissal.

Although Section 27(5) under the Leader Code states a person convicted of an offence in respect of his office or position is guilty of misconduct in office it did not state he shall be dismissed or disqualified from office. Further a person found guilty of misconduct in office is not an automatic disqualification until a Leadership Tribunal confirms his dismissal from office.

Example in 2010 Grand Chief Somare was found guilty of 13 counts of misconduct in office after he failed to file his Annual Statement. Because the offences were only administrative the Tribunal only recommended he be suspended for two weeks without pay.

Kavo was prosecuted and convicted by Criminal Court not a Leadership Tribunal therefore he is not subject to Section 27(5) of Constitution or disqualified by law. One can not hand pick specific provisions (laws) where it clearly does not apply.

Any attempts by the Gulf Provincial Assembly to act on the Attorney General's advice to remove Kavo would only afford Kavo the right to file for Court proceedings preventing his removal. The matter would be locked up in Court for a year or the determination of his appeal.

In my considered view I would say that Kavo is disqualified from remaining a Member of Parliament by operation of Section 103(3)(e) of Constitution

Section 103(3)(e) states that a person is not qualified to be, or to remain, a member of the Parliament if he has been convicted under any law of an indictable offence.

This Section 103(3)(e) was introduced in 2004, disqualifying a person convicted of an indictable (criminal) offence before it was introduced only Section 103(3)(c) applied. Where a person who was sentenced to murder or rape could serve out their sentence and still qualify to become a Member of Parliament. So in 2004 as part of the Electoral Reform (introduction of LPV system) Parliament amended the Section 103 of Constitution to include the provision Section 103(3)(e). The effect now being that irrespective how many years a person is sentenced if they were convicted of criminal offence having a criminal record they would not qualify to remain or become a Member of Parliament period. Unless of course the Supreme Court overturned their conviction by appeal or granted a pardon.

Parliament also introduced similar provisions in the Organic Law on Elections Section 289 says that a person convicted of election offences under
Criminal Code Act shall be disqualified from voting, holding elective public office or being employed in the Public Service, in a provincial government or a local-level government.

To revisit Section 103(3) of Constitution again it says that a person is not qualified to be, or to remain, a member of the Parliament if–

(a) he is not entitled to vote in elections to the Parliament; or

(b) he is of unsound mind within the meaning of any law relating to the protection of the persons and property of persons of unsound mind; or

(c) subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or

(d) he is adjudged insolvent under any law; or

(e) he has been convicted under any law of an indictable offence; or

(f) he is otherwise disqualified under the Constitution.

You will notice that (c) says that subject to Subsection (4) to (7) a person under sentence of death or imprisonment for a period of more than nine months. So these two provisions are subject to Section 103(4) which say that their disqualification is suspended until the period allowed to file an appeal expires (40 days) or if they file an appeal, then until the appeal is determined.

However (e) does not state that a person convicted of an indictable (criminal) offence is subject to subsections (4) to (7).

Kavo was convicted for misappropriation which is an indictable offence under the Criminal Code. When Parliament amended the Section 103(3) of the Constitution to introduce Section 103(3)(3) they did not state that it was subject to Section 103(4) to (7).

Whether this was intentional or an oversight until interpreted by the Supreme Court or corrected by Parliament it remains in effect and disqualifies Kavo form remaining a Member of Parliament by operation of his conviction. This in my opinion is the correct view.

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