Posted By Staff Reporter
By Bryan Kramer Last Thursday National Court, Justice Cannings upheld Belden Namah's judicial review application challenging the Leadership Tribunal decision on 9 April 2018 finding him guilty of misconduct and recommending his dismissal from office. Namah argued that the tribunal ought to have given him the right to respond to the penalty before handing down its decision. In this case the penalty recommending his dismissal from office. The practice has been the Court or Tribunal will first determine if a person is guilty of an offence before making a decision on the penalty. After hearing the evidence and making ruling on guilt it will then stage a further hearing to determine the appropriate penalty. This is to afford the parties including the accused the opportunity to explain to the court what they believe the penalty ought to be, given the circumstances of the case.
In criminal cases a person will be charged for allegedly committing an offence under the criminal code, where the offence will also prescribe the penalty. For example official corruption is an offence under section 87 of Criminal Code. It defines what constitutes official corruption including the prescribed penalty - imprisonment for a term not exceeding 7 years, and a fine at the discretion of the court. So when a Court finds a person guilty of official corruption it will then ask for parties, Public Prosecutor acting on behalf of the State and the Accused lawyer's to appear for a hearing on what the penalty should be based on the circumstances of the case. The Court will afford the parties the right to make submissions including the accused before making decision on the appropriate penalty. When handing down its decision the Court will take into consideration whether the accused pleaded guilty, whether it was his/her first offence, whether they paid back the funds, and expressed remorse etc. Unlike the Criminal code that seeks justice by imposing a prison term the Leadership Code is concerned about protecting the office by recommending they be dismissed (removed) from it. What is the penalty under the Leadership code? Where a person is found guilty of misconduct in office the law states Leadership Tribunal must decide whether to ether recommend they be dismissed where the offence or misconduct is serious; or there were the offence is no so serious and public policy and the public good do not require dismissal, the Tribunal may recommend to the Governor General that some other penalty provided for by law be imposed. In 2011 Leadership Tribunal found the former Prime Minister Grand Chief Michael Smoare guilty of 13 charges of failing to file his annual returns late - a requirement under the leadership code and an offence where a person fails to do so. After finding Somare guilty the tribunal convened a further hearing to consider the appropriate penalty. The tribunal said "Having found Grand Chief Sir Michael Somare GLC GCMG CH CF KtJ, MP guilty of 13 allegations, we are required under the statutory framework to made a recommendation as to penalty to the Head of State, His Excellency the Governor General." Tribunal went on to explain that "under the constitutional framework we must first determine whether there was " no serious culpability" on the part of the Leader in respect of the allegations upon which we found him guilty." Because the charges or misconduct in the Somare's case related to failing to file his returns on time the Tribunal ruled by majority (2/1) - recommending that the penalty be a fine and suspension without pay for 14 days. Now in the case of Namah the charges were more serious and after finding him guilty the Tribunal recommended his dismissal in the same ruling. Tribunal ought to have had a further hearing on the issue of penalty - giving Namah the opportunity to be heard on what he thought the penalty ought to be similar to the Somare case. National Court found that the Tribunal exceeded its jurisdiction (powers) in recommended Namah's dismissal without affording him to right to be heard. After making that finding the Court ordered that parties make submissions on what they believe ought to be the appropriate remedies or relief to correct the procedural error on the part of the Tribunal. Namah lawyers asked the Court to quash the decision of the Tribunal recommending hs dismissal and issue a permanent stay (stop order) against the tribunal. Solicitor General and Public Prosecutor submitted that the question of penalty be determined by a fresh tribunal. The Court ruled in was appropriate in the interest of justice to grant a permanent stay it based its decision on the following grounds It was the second time the Tribunal made an error due to no fault of Namah. 1st error being when the Chief Justice Salamo Inja appointed the tribunal when Namah ordered his arrest. A new Tribunal was appointed by Deputy Justice 2nd error being the second tribunal making a procedural error when it did not afford him the right to be heard. The Court expressed the view the appointment of third tribunal being appointed creates an unacceptable risk of breach of the right of the plaintiff (Namah) to the full protection of the law. It also expressed the view "the incident [Namah storming the Court house] of 24 May 2012 was extremely serious and warranted immediate decisive action, but that did not happen, justice was miscarried on more than one occasion - there comes a time when enough is enough and the time is now" However the Court did not explain what this unacceptable risk would be? Was justice miscarried? - In my view justice was denied, Namah was found guilty of misconduct in office for unlawfully storming the Court house and ordering the then Chief Justice arrest. He never challenged or took issue on the Tribunal finding of him guilty, he only took issue with not being afforded the right to be heard on the appropriate penalty. It is my opinion the Court made a glaring error in its ruling and ought to have ruled the question of penalty be determined by a fresh tribunal. I believe the State will appeal the decision and seek an interim stay against the National Court's ruling. This issue will most likely be determined by 5 man Supreme Court bench. Next : WHO WILL TAKE OUT THE GOROKA BY-ELECTION? - Part 2
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