State v Independent Leadership Tribunal; Ex Parte Sasakila [1976] PGLawRp 658; [1976] PNGLR 491 (5 November 1976)

Papua New Guinea Law Reports - 1976

[1976] PNGLR 491 - The State v The Independent Leadership Tribunal; Ex Parte Moses Sasakila 

[1976] PNGLR 491

SC107

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

THE STATE

V

THE INDEPENDENT TRIBUNAL ESTABLISHED UNDER SECTION 27 (7) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP 1975: EX PARTE MOSES SASAKILA

Waigani

Frost CJ Saldanha Kearney JJ

27-28 October 1976

5 November 1976

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea, Div. III.2 (Leadership Code) - The Organic Law on the Duties and Responsibilities of Leadership - Whether s. 27 (5)[dxlix]¹ valid.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Independent Tribunal established under Organic Law, s. 27 (7) - Power to dismiss Minister for misconduct in office - Subsequent recommendation to the Head of State for dismissal - Order by Head of State for dismissal as Minister and Member of Parliament - Validity of - Constitution, ss. 28 (1) (g), (2)[dl]² and (3), 86[dli]³, 104 (2) (h), 144 (4) (b) (i) and (ii) - Organic Law, s. 27 (5)[dlii]⁴.

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea s. 28 (1) (g) - Construction of - Whether self-executing under Constitution, s. 11 (2).

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Whether recommendation to Head of State under Constitution s. 28 (2)[dliii]⁵ and order thereon non-justiciable - Constitution, s. 28 (2) (5), s. 84.

Section 28 (1) (g) of the Constitution of the Independent State of Papua New Guinea provides that for the purposes of giving effect to the leadership code contained in Pt. III, Div. 2 of the Constitution, an Organic Law shall establish independent tribunals that

N2>“(i)     shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

N2>(ii)      are required to recommend to the appropriate authority to dismiss from any office or position or, within limits fixed by law, otherwise make a recommendation to penalize a person found guilty of misconduct in office, unless they find both a lack of serious culpability and that public policy and the public good does not require dismissal; and” ...

Section 28 (2) then provides that in the case of inter alia Ministers and members of Parliament, “the independent tribunal referred to in Subsection (1) (g) shall make any recommendation under Subsection (1) (g) (ii) to the Head of State, who shall act in accordance with the advice of the independent tribunal”.

Section 27 (5) of the Organic Law on the Duties and Responsibilities of Leadership (the “Organic Law”) provides that “if the Tribunal considers that a person to whom this Law applies is guilty of misconduct it shall dismiss him from office”.

On the return of an order nisi for a writ of certiorari to remove into the Supreme Court and quash, an order made by the Independent Tribunal constituted under s. 27 (5) of the Organic Law, dismissing Mr. Moses Sasakila from office as Minister for Culture, Recreation and Youth Development and also as a Member of Parliament, for misconduct in office, in that within the meaning of s. 4 (6) of the Organic Law, he failed without reasonable excuse to give to the Ombudsman Commission a statement of his income, assets and interests as required by s. 4 (1) thereof, and effect being given thereto by an order of the Head of State in the following terms:

“I ... acting with, and in accordance with, the advice of the Prime Minister and having received a recommendation from the appropriate tribunal, hereby dismiss Moses Sasakila from the Offices of member of the Parliament and Minister.”

Held

N1>(1)      Section 27 (5) of the Organic Law insofar as it provides for a power of dismissal rather than a power to recommend dismissal is ultra vires.

N1>(2)      Section 28 (1) (g) of the Constitution is not by its nature or subject matter self-executing, and in the absence of an Organic Law which is fully authorized by the Constitution, no recommendation for dismissal can have any valid effect.

N1>(3)      To the extent that the Head of State purported to dismiss Mr. Sasakila as Minister on the recommendation of the Independent Tribunal, the dismissal was null and void, but in dismissing him as Minister the Head of State also acted on the advice of the Prime Minister and the question of what (if any) advice is given to the Head of State or by whom, being non-justiciable under s. 86 (4) of the Constitution the question of his dismissal as Minister following the advice of the Prime Minister cannot be heard or determined by any court under Sch. 1.7 of the Constitution, and must stand.

N1>(4)      So far as s. 28 (2) of the Constitution is concerned the provision for the Head of State (and in s. 28 (3) for the appropriate authority) as the person (and body) to whom any recommendations are to be made, and the consequent obligations to take action accordingly, are self executing. In order therefore to accord the provisions of s. 28 (2) their fair and liberal meaning as required under Sch. 1.5 (2) of the Constitution, a recommendation of a tribunal to the Head of State pursuant to s. 28 (2) of the Constitution is not to be interpreted to be “advice” within the meaning of s. 86 (4) of the Constitution and is not non-justiciable, so that to the extent that the Head of State purported to dismiss Mr. Sasakila as a Member of Parliament on the recommendation of the Independent Tribunal (the only means whereby his seat as a Member of Parliament could relevantly be vacated) the order was invalid.

N1>(5)      Accordingly, the order nisi for writ of certiorari should be made absolute.

N1>(6)      The order of the Independent Tribunal, the recommendation by the Tribunal, and the order of the Head of State, insofar as it is thereby ordered that the applicant Mr. Moses Sasakila be dismissed from office as a Member of Parliament, be removed into the Supreme Court and quashed.

N1>(7)      That it should be declared that Mr. Moses Sasakila has at all material times continued to be and remains a Member of Parliament.

Certiorari

This was the return of an order nisi for a writ of certiorari to remove into the Supreme Court and quash an order made by the Independent Tribunal constituted under s. 27 (5) of the Organic Law on the Duties and Responsibilities of Leadership, dismissing the applicant Mr. Moses Sasakila from office as Minister for Culture, Recreation and Youth Development and also as a Member of Parliament, for misconduct in office. Further relevant facts appear in the reasons for judgment of Frost C.J. hereunder.

Counsel

J. S. Aoae, Principal Legal Adviser to the National Executive Council, and K. N. Gregory, for the Intervenor, the National Executive Council.

D. O. Boston and B. D. Brunton, for the prosecutor.

K. B. Egan, for the respondent Tribunal.

Cur. adv. vult.

5 November 1976

FROST CJ:  The question in this case is whether Mr. Moses Sasakila was validly dismissed from office as Minister for Culture, Recreation and Youth Development and also as a Member of Parliament.

As a Member of Parliament he was subject to the provisions of the Leadership Code — Constitution, Pt. III, Div. 2, and of the Organic Law on the Duties and Responsibilities of Leadership.

He was dismissed from office by the Independent Tribunal constituted under the Organic Law, s. 27 (5), for misconduct in office, in that within the meaning of s. 4 (6) of that law he failed without reasonable excuse to give to the Ombudsman Commission a statement of his income, assets and interests as required by sub-s. (1) of that section.

The case comes before this Court on the return of an order nisi for a writ of certiorari to remove into the Supreme Court and quash the order for dismissal. The order nisi was given on the ground that the order was in excess of the jurisdiction of the Tribunal which had no power to dismiss the said Moses Sasakila from office or to recommend such dismissal.

It was not sought to be argued before this Court that there was any error in law in the Tribunal’s finding that there was misconduct in office. The Tribunal proceeded to apply s. 27 (5) of the Organic Law. It was prepared to hold, but with some doubt, that insofar as the statement had actually been given, the matter could have been put to rights eventually pursuant to s. 27 (5) (d), but it was not satisfied that there was no serious culpability nor was it satisfied that public policy and the public good did not require dismissal from office under s. 27 (5) (e) (f). (The latter findings could not be challenged in these proceedings). The Tribunal then found itself bound under the section to order the dismissal of the Minister from office, although it regretted that no other form of sanction had been provided. The omission was indeed remarkable, for under the Organic Law acts of varying degrees of seriousness had been prescribed as constituting misconduct. At one end of the scale there was the grave offence of acceptance of bribes under s. 11, and at the other, what would normally be the lesser offence of engaging in paid employment other than official employment under s. 9, and also of omitting to submit a statement as in the present case. The provision was also remarkable in that if circumstances were found such that dismissal should not be ordered, no other penalty was provided by constitutional law, and the leader guilty of the particular act of misconduct proved would go unpunished.

The Tribunal saw a further difficulty under the written law, for whilst the Organic Law provided for a power of dismissal, under Constitution s. 28 (1) (g) (ii) the Tribunal’s power was to be confined to making a recommendation to the appropriate authority, in this case the Head of State, to dismiss from office or otherwise penalize the person found guilty. Accordingly the course the Tribunal took, by way of implementing its decision, was to make a recommendation for dismissal to the Head of State.

In this Court the Principal Legal Adviser to the National Executive Council sought leave because of the public importance of the case to make submissions on behalf of the National Executive Council. There is no provision in the pre-Independence Supreme Court (Full Court) Rules, which remain in operation, for any such order to be made, but the Court took the view that in the particular circumstances of the case leave should be granted, and gave an ad hoc direction accordingly pursuant to Constitution, s. 184.

Mr. Gregory, who appeared with Mr. Aoae, then made — as intervenor addressing the Court first — most helpful submissions concerning the written law, which were adopted by Mr. Boston who appeared for the prosecutor. From these submissions it is clear that the legal problems are caused by the unfortunate fact that the Organic Law was passed — at a time when it is true that the draftsmen and the Constituent Assembly were under great pressure — in a form which departs in material particulars from the requirements of the Constitution.

The Leadership Code was one of a number of subjects which the Constituent Assembly decided to make provision for by means of an Organic Law. For the purposes of the Constitution an Organic Law is a law made by the Parliament in respect of a matter provision for which by way of an Organic Law is expressly authorized by the Constitution, is not inconsistent with the Constitution, and is expressed to be an Organic Law — Constitution, s. 12. An Organic Law is also subject to the Constitution as provided in s. 10, whereby, as in the case of all written laws, it is to be read and construed subject to the Constitution. Thus to the extent that an Organic Law is unauthorized by the Constitution, or is inconsistent with it, it is invalid. But the valid portions of the law may be saved under a further provision contained in s. 10 to which I shall later refer.

The Organic Law in this case was made as a provisional Organic Law by the Constituent Assembly before Independence Day, and therefore took effect on Independence Day as if it were an Organic Law made and coming into effect on that day — Constitution, s. 266 (1). It was formally introduced into the Constituent Assembly, debated and agreed to, all on 15th August, 1975. For the purposes of Div. III.2 (Leadership Code), pursuant to s. 28 (1) (a) to (f) the Organic Law duly made provision for matters such as the disclosure to the Ombudsman Commission of the income, affairs and interests of the persons to whom the Leadership Code applied, prescribing specific acts which constitute misconduct in office, creating offences, and the investigation by the Ombudsman Commission of cases of alleged misconduct in office. But when it came to the establishment of tribunals and the other functions the Constituent Assembly, in purported pursuance of sub-s. (1) (g), passed the Organic Law in a form based on a section in the Fourth Draft of the Constitution. It was overlooked that on 25th June, 1975 that section had been amended by the Constituent Assembly and had been passed in its present form. The reason for the amendment is apparent from the recommendation by the Constitutional Planning Committee which, it appears, had noticed the need for provision in less serious cases of penalties of less severity than the single draconic sanction of dismissal from office.

The recommendation was in the following form:

N2>“6(5)   If a tribunal finds that a leader has committed a breach of the Leadership Code, that leader shall, immediately after the decision of the tribunal has been made, be deemed to have vacated his office, unless the tribunal is satisfied that there are extenuating circumstances which are such as to justify the tribunal imposing a fine (of up to a maximum sum as provided for by law), demoting the leader (if he is a public officer), reprimanding him, placing him on a bond to be of good behaviour for a specified period, or making any other order provided for by law.”

The proposal to be found in the “Proposals on Constitutional Principles and Explanatory Notes” p. 6, para. 13, on the other hand merely follows the earlier draft section and does not provide any explanation of the subsequent amendment. Both documents may, of course, be referred to as aids to the interpretation of the Constitution. Constitution, s. 24 (1).

When one turns to s. 28 (1) (g) of the Constitution, it is seen that the mistaken retention of the power of the tribunal to dismiss from office is not the only problem under the Organic Law. That section in effect provides that for the purposes of Div. III.2 (Leadership Code) an Organic Law “shall establish tribunals that — (i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and (ii) are required to recommend to the appropriate authority to dismiss from any office or position or, within limits fixed by law, otherwise make a recommendation to penalize a person found guilty of misconduct in office, unless they find both a lack of serious culpability and that public policy and the public good does not require dismissal;”. I shall refer later to the words I have emphasized.

Mr. Gregory’s first submission is that the Constitution s. 28 (1) (g) (ii) obviously does not authorize, as I have indicated, an Organic Law to require a tribunal to make an order for dismissal. All that is authorized is a recommendation for dismissal. He then pointed to a further difficulty in the interpretation of sub-s. (1) (g) (ii). It is that the conditional clause which is placed at the end must logically qualify only the power to recommend dismissal, and “unless” must be read as “if”. This interpretation is supported by the Constitutional Planning Committee’s recommendation, which also explains the use of “unless” in the subsection. The subsection is thus to be read to mean that if misconduct is proved, a recommendation of dismissal is to be made, or, if there is found both a lack of serious culpability and also that public policy and the public good do not require dismissal, some other penalty within limits fixed by law is to be recommended.

He submitted that although sub-s. (1) (g) (ii) refers to the limits of the other penalties as fixed “by law”, which is a term wide enough under the Constitution Sch. 1.2 (1.) to include an enactment of the Parliament, in the context of sub-s. (1) (g) (ii) it means the Organic Law. This follows because, as Mr. Gregory then went on to submit, sub-s. (1) (g) (ii) requires the Organic Law to provide for penalties alternative to dismissal, prescribing not only the quantum but possibly also the circumstances in which such penalties may be recommended. The reason is to be found in the obvious range in seriousness of the various types of misconduct of office, and the unlikelihood, as appears in the recommendation of the Constitutional Planning Committee, that it was intended that the tribunals should be able to operate with power to impose a single penalty only. The Organic Law is thus unauthorized, in his submission, also because of its omission to make proper provision upon the matter of alternative penalties.

Finally, Mr. Gregory dealt with paras. (a) to (d) in s. 27 (5) of the Organic Law which require proof of mitigating circumstances additional to those referred to in sub-s. (1) (g) (ii) if a recommendation for dismissal is not to be made. In respect of these provisions also, he submitted, the Organic Law went beyond s. 28 (1).

Mr. Gregory put an interesting argument based on the Constitution s. 10, as a possible means of saving from invalidity the remaining portion of the Organic Law although in certain respects it was in excess of authority. He referred to the construction placed by the High Court of Australia upon a similar provision to be found in the Acts Interpretation Act, s. 15a. He relied on a passage by Wynes in Legislative Executive and Judicial Powers of Australia, which in the 5th ed. is to be found at pp. 53-54, for a statement of the effect of the Australian decisions. But, as Mr. Gregory submitted, under the interpretation of the Australian section there is no authority for the Court to do anything more than confine the operation of general words within the limits of authority or to strike out individual words and expressions which are beyond authority. There is outside authority also for the proposition that the Court cannot re-draft or alter a statute when applying a severability clause, as clauses such as the Constitution s. 10 and the Australian s. 15a are called, or convert it into a measure with a different purpose in order to save the provision in part. Attorney-General for the Commonwealth of Australia v. Colonial Sugar Refining Company, Ltd.[dliv]⁶. In the present case, he submitted, there was no way of splitting up the concept of an order for dismissal as provided in the Organic Law into good or bad so as to preserve a power to recommend dismissal.

As no reliance was put by Mr. Egan upon s. 10, I can now say upon this part of the case that, although there may be little practical difference between a power to dismiss and a power to recommend dismissal to an appropriate authority which is required to act in accordance with the recommendation, the two functions are in law quite different. It cannot be said that the notion of a power to dismiss can be construed as involving as one part of that function a power also to recommend dismissal, so that once the power to dismiss is removed as unauthorized there could be said to remain the residual power to recommend dismissal.

Accordingly, in my opinion, there is not contained in s. 27 (5) any legislative operation which can be saved under s. 10 as remaining within authority once the power to dismiss is invalidated as unauthorized.

In his submissions on behalf of the Tribunal, Mr. Egan did not argue that the Tribunal had any valid power to dismiss. He conceded that in that respect the Organic Law was unauthorized under the Constitution. It was central also to his argument that, as was argued by Mr. Gregory, the final clause under sub-s. (1) (g) (ii) qualified only the power to recommend dismissal. It was sufficient to support the Tribunal’s ultimate recommendation of dismissal, in his submission, that the following steps had all been lawfully taken — first, under the Organic Law the independent Tribunal had clearly been established; secondly, pursuant also to that law the Tribunal had investigated and determined against the prosecutor the question of misconduct in office; and thirdly, the Tribunal found that it was not satisfied that there was no serious culpability or that the public good and public policy did not require the Minister’s dismissal from office.

It then followed, in Mr. Egan’s submission, that by force of the constitutional provision to be found in s. 28 (1) (g) (ii), as no provision had been made by law to fix limits in relation to any other penalty, the tribunal was required to recommend dismissal. This final step was however dependent upon it being established that that provision of the Constitution is a self-executing provision within the meaning of Constitution, s. 11 (2) which provides, so far as is relevant, that the provisions of the Constitution and of the Organic Law are self-executing to the fullest extent that their respective natures and subject-matters permit.

These then were the arguments which were placed before this Court. I do not consider that the case admits of much elaboration. In my opinion, it is beyond doubt that the Organic Law is unauthorized insofar as it provides for a power of dismissal rather than a power to recommend dismissal, and also, under the Organic Law s. 27 (5), sub-paras (a) to (d), for proof of circumstances of mitigation additional to those referred to in Constitution, s. 28 (1) (g) (ii), if the purported power is not to be exercised. The latter provisions are however not crucial in this case because no finding was made which was unfavourable to the Minister.

Now if there was no power to dismiss the Tribunal’s order to that effect is a nullity, even although it may mean that the Minister should go unpunished for the misconduct in office of which he was found guilty. The only way in which the Minister’s dismissal can be possibly upheld is pursuant to the recommendation made by the Tribunal to the Head of State. However, in my opinion, the Constitution s. 28 (1) (g) is not by its nature or subject-matter self-executing. As Mr. Gregory submitted, the provisions of s. 28 (1) (a) to (f) inclusive are clearly not self-executing, but merely enable further provision to be made by means of an Organic Law, and it is unlikely that sub-s. (1) (g) (i) and (ii) were intended to have any different effect. It is true that in s. 28 (2) and (3) any recommendations by the Tribunal are referred to as having been made under sub-s. (1) (g) (ii), and also that the independent Tribunal is described as the Tribunal referred to in sub-s. (1) (g). But in my opinion the issue depends upon the words to be found in sub-s. (1) (g), and upon their plain meaning I consider that the operation of the section was to authorize the enactment of an Organic Law providing, in addition to the matters specifically stated, for a procedure for referring cases to the Tribunal, and also alternative penalties, fixed or stated as to their limits, which the Tribunal was required to recommend in cases where there was found both a lack of serious culpability and that public policy and public good did not require dismissal.

I agree with Mr. Gregory that the section contemplates that the Tribunal should specifically not be left with the power to recommend dismissal from office as its only sanction.

For these reasons in my opinion sub-s. (1) (g) is not self-executing and, in the absence of an Organic Law which is fully authorized by the Constitution, no recommendation for dismissal can have any valid effect.

Stopping here, I should say that it was not questioned in these proceedings that the independent Tribunal was a body to which certiorari would lie. Insofar as it had the purported authority to dismiss, such a tribunal clearly had authority to determine questions affecting the rights of subjects; and whilst not conclusive, the applicability of the principles of natural justice as provided by the Constitution, s. 28 (5), is one indication — there are others — that it also had a duty to act judicially, so that, in all the circumstances, the Tribunal is to be taken as subject to the controlling jurisdiction of the Court to issue the prerogative writ of certiorari. Apart from the constitutional significance of the dismissal of the prosecutor both as Minister and Member of Parliament, being made pursuant to an order by the Governor-General, both orders would be quashed for want of jurisdiction and error of law, and it would be open for this Court to make appropriate declaratory orders.

Accordingly it is necessary to consider the effect of the order being made by the Governor-General.

So far as the office of Minister is concerned, the relevant provisions are contained in the Constitution, s. 144. That section, so far as is relevant to this case, provides for dismissal from office by the Head of State acting with, and in accordance with, the advice of the Prime Minister; or in accordance with Div. III.2. (Leadership Code). Subsection (4) (a) and (b). The section must be read with s. 86 (4) which provides that the question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable. The significance of that provision is stated in the Constitution, Sch. 1.7, which provides that the question may not be heard or determined by any Court or Tribunal.

Turning now to the Instrument of Dismissal by the Governor-General, the Minister can have no redress insofar as his dismissal from office as Minister is based on the invalid recommendation by the Tribunal. The reason is that the Instrument not only recites the recommendation from the appropriate Tribunal, but goes further and recites, as an additional ground, that the Governor-General has acted with, and in accordance with, the advice of the Prime Minister, and as any question concerning the nature of that advice is beyond the power of this Court the prosecutor’s dismissal from his ministry must stand.

But the same defect does not apply to the prosecutor’s dismissal as a Member of Parliament. The only relevant way in which the seat of a Member of Parliament becomes vacant is by dismissal from office under Div. III.2. (Leadership Code). Constitution, s. 104 (2). The question is whether the Court can go behind the dismissal by the Governor-General if it is made pursuant to a recommendation which is null and void. If that recommendation amounts to advice which is non-justiciable the Member may be left without redress. Here the terms in which the Constitution is drafted are not entirely clear. The Constitution, s. 28 (2), provides that in the case of certain limited classes of persons to whom the Leadership Code applies, which include Members of the Parliament, the independent Tribunal shall make any recommendation to the Head of State, and then goes on to provide that the Head of State shall act in accordance with the advice of the independent Tribunal. The reason for the use of the term “advice” rather than “recommendation”, it would appear, is to be found in s. 86 (2), which provides that in the exercise of his powers, functions etc., the Head of State shall act only with and in accordance with the advice of the National Executive Council or some other body or authority prescribed by law. Section 28 (2) is in conformity with that provision. But when one turns to s. 28 (3), which is concerned with recommendations made by the Tribunal in the case of other classes of leaders found guilty of misconduct, the same words are used, although the recommendations are not in these cases made to the Head of State but to the appropriate appointing authority. In the latter section there would seem to be no constitutional requirement for the word “advice” to carry any meaning other than recommendation.

I think it has to be accepted that, so far as s. 28 (2) and (3) are concerned the provision for the Head of State and the appropriate authority respectively, as the person and body to whom any recommendations are to be made, and the consequent obligations to take action accordingly, are to be taken as self-executing. Now there would appear to be no reason why an order for dismissal implementing an invalid recommendation should be free from attack in the ordinary way if made by an appointing authority who is not the Head of State. So a leader to whom s. 28 (3) applies, who is found guilty of an act of misconduct, could succeed in those circumstances in having the order for dismissal set aside. But if the word “advice” in s. 28 (2) is given its constitutional meaning as provided in s. 86 (4), and the recommendations acted on by the Head of State are not justiciable, a leader to whom that subsection applies, if found guilty of the same act of misconduct in office, would be left with no redress if the recommendation were invalid.

To adopt an interpretation which produces such a discriminatory result would not, in my opinion, be to accord the provisions of s. 28 (2) their fair and liberal meaning as required under the Constitution, Sch. 1.5 (2.).

A further pointer to the justiciability of recommendations upon which the Head of State must act under s. 28 (2) arises from the provision in s. 28 (5) that proceedings under sub-s. (1) (g), whilst not judicial proceedings, are subject to the principles of natural justice. (The precise implications of the proceedings not being judicial were not argued. The provision may be sufficient to exclude the National Court’s power of review under Constitution, s. 155 (3) (a)). The provision bringing in the principles of natural justice would be quite ineffective unless an order for dismissal or other penalty could be impugned and set aside in the case, for example, of a leader who, in his absence and without any opportunity of being heard, and thus in breach of the principles of natural justice, was found guilty of misconduct in office. The remedy could be found in the Court’s inherent power to grant relief — Constitution, s. 155 (4).

Section 28 (5) is therefore a strong indication that a recommendation is not finally conclusive against a leader but is justiciable, and that proceedings may be brought to set aside an order made either by the Head of State or other appointing authority pursuant to a recommendation alleged to be invalid.

In an endeavour to find a solution I do not consider that this Court should proceed to cut down the force of the meaning of non-justiciability. The answer, I consider, is to be found by looking at the purpose of s. 86 (4). That provision is certainly to be given the plenary operation of putting beyond the scrutiny of the Courts the question of what advice (if any) is given by the National Executive Council to the Head of State. But the provision seems inappropriate to the proceedings of an independent Tribunal which acts judicially, conducts its hearings in public, and makes public its decision supported by reasons.

The conclusion I have come to is that so far as the obligation of the Head of State to act on the recommendation of such a Tribunal is concerned, special and exclusive provision is made for that subject-matter in s. 28, and the general provisions of s. 86, except possibly sub-s. (3) which is concerned with the form of instruments, have no application. The terms of the order of dismissal which recite merely the receipt of a recommendation from the appropriate Tribunal without the use of the term “advice” indicates that the draftsman probably took the same view. The order is thus not saved from invalidity.

It is important to note that the invalidity of the Tribunal’s order and recommendation is not due only to the rather technical reason that the Organic Law provided for an order for dismissal, rather than a recommendation to the Head of State for dismissal. There is a further reason which goes to the merits of the case. The Tribunal clearly thought that whilst Mr. Sasakila’s failure to give his statement of affairs within the proper time constituted misconduct of office, it did not call for such a severe penalty as dismissal. The Tribunal was constrained to order dismissal only because the Organic Law provided no other penalty. As I have held, the Organic Law is invalid for the additional reason that it did not go further and provide for some lesser penalty. If the Organic Law had been passed containing all the provisions required by the Constitution, it is clear that a much less severe and appropriate penalty would have been ordered by the Tribunal and it may not have been necessary for these proceedings to have been brought.

In my opinion the relief sought should be granted and an order should be made to bring up and quash both the order for dismissal and the recommendation by the independent Tribunal, and also the order of the Head of State dismissing Mr. Moses Sasakila from office as a Member of Parliament. I consider that the Court should also make a declaratory order that Mr. Moses Sasakila has at all material times continued to be and remains a Member of Parliament. It follows from these orders that the writ for the by-election for his seat is void and of no effect, and further that Mr. Sasakila is also eligible for re-appointment as Minister.

As it follows from this decision that the Organic Law will need to be reconsidered by Parliament, it is convenient to refer to the Tribunal’s view that upon its construction of s. 4 (1) and (2), the period to which the first statement to be given relates is the period of twelve months preceding the statement, and that the obligation to give the return extended beyond the 16th December, 1975, that is, three months after Independence Day, and was a continuing one.

Although the provisions are not easy to construe, it seems to me that a construction which enables the leader to determine the period of his statement by delaying its return, is one unlikely to be intended. It is more likely that the Legislature intended a single fixed period which was applicable in the case of all leaders.

Whilst some violence may be done to the language there is much to be said for the view that the period to which the statement relates is the period of twelve months preceding either Independence Day or the date when the person to whom the law applies first became such a person. If this view is correct subsequent statements refer to each succeeding period of twelve months, but the provision remains rather an impractical one because, however the Act is construed, no time is fixed within which the subsequent statement is to be given at the conclusion of the period.

Finally, it seems to me unusual and open to doubt that an offence such as the failure to give a return within a certain period should be construed as a continuing offence. A decision of this nature is usually required to be made so as to prevent a prescribed limitation of time for the prosecution of an offence taking effect from the original creation of the offence, as, for instance, the desertion of wife, emission of smoke from a factory chimney contrary to a by-law, etc., and disregard of statutory notice. Stone’s Justices’ Manual, 1974, Vol. 1, p. 353. If the Organic Law is to be amended it may well be thought desirable to clarify these various matters.

SALDANHA J:   The circumstances giving rise to this application have been fully set out in the judgment of the Chief Justice and there is no need for me to repeat them.

The Organic Law on the Duties and Responsibilities of Leadership (the “Leadership Act”) was made by the Constituent Assembly to implement the Leadership Code. Section 28 (1) (g) (ii) of the Constitution enabled this organic law to “establish independent tribunals that are required to recommend to the appropriate authority to dismiss from any office or position ... a person found guilty of misconduct in office ...” — s. 27 (5) of the Leadership Act, however, provides that ‘If the Tribunal considers that a person to whom this Law applies is guilty of misconduct it shall dismiss him from office... .” The power to dismiss from office is ultra vires s. 28 (1) (g) (ii) of the Constitution, which empowers independent tribunals to recommend dismissal from office — not to dismiss. Thus, the independent tribunal which considered the case of Mr. Sasakila had neither the power to recommend dismissal because this was not provided for, nor the power to dismiss because this was ultra vires. In my view there is nothing in s. 10 of the Constitution which enables s. 27 (5) of the Leadership Act to be construed so as to keep it within power.

An important consideration also is that s. 27 (5) of the Leadership Act and s. 28 (1) (g) (ii) of the Constitution are in the nature of penal provisions with serious consequences to a person found to be guilty of misconduct in office, and, must therefore be strictly construed. There must be no straining in an attempt to avoid the obvious inconsistency between the two sections.

Consequently, I find that the order of the Tribunal that Mr. Sasakila be dismissed from office was made without jurisdiction and certiorari will lie to quash it.

The Public Prosecutor has referred to s. 11 (2) of the Constitution. He contends that s. 28 (1) (g) (ii) is self-executing and would enable the Tribunal to recommend that Mr. Sasakila be dismissed from office without having recourse to s. 27 (5) of the Leadership Act. Section 11 (2) of the Constitution reads as follows:

“The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.”

Section 28 (1) generally and in particular s. 28 (1) (g) which provides that “(1) ... an Organic Law ... (g) shall establish independent tribunals that — (i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and (ii) are required to recommend to the appropriate authority to dismiss from any office or position ...” makes it clear that s. 28 is directed at requiring provisions to be made by Organic Law. For this reason I am clearly of the view that s. 28 (1) (g) (ii) of the Constitution was not meant to be and is not self-executing.

The Governor-General’s order of dismissal reads

“I ... acting with, and in accordance with, the advice of the Prime Minister and having received a recommendation from the appropriate tribunal, hereby dismiss Moses Sasakila from the offices of member of the Parliament and Minister.”

It will be noticed that the Governor-General dismissed Mr. Sasakila both as member of Parliament and as Minister. There were two bases for the dismissal; firstly the advice of the Prime Minister, and, secondly the recommendation of the Tribunal.

As has already been pointed out the Tribunal could neither dismiss nor recommend dismissal of Mr. Sasakila as member of Parliament. The Prime Minister has no power to advise the Governor-General to dismiss Mr. Sasakila as member of Parliament. Therefore Mr. Sasakila’s dismissal as member of Parliament is null and void.

The Tribunal could neither dismiss nor recommend dismissal of Mr. Sasakila as Minister. To the extent that the Governor-General purported to dismiss Mr. Sasakila as Minister on the recommendation of the Tribunal the dismissal was null and void. But in dismissing Mr. Sasakila as Minister the Governor-General also acted on the advice of the Prime Minister. Now, “the question, what (if any) advice was given to the Head of State or by whom, is non-justiciable:” s. 86 (4) of the Constitution. The question of Mr. Sasakila’s dismissal as Minister following the advice of the Prime Minister cannot be heard or determined by this Court: Sch. 1.7 of the Constitution.

The net result is that Mr Sasakila’s dismissal as member of Parliament is null and void but his dismissal as Minister insofar as it is based on advice from the Prime Minister is valid. If the Prime Minister wants Mr. Sasakila back in office as Minister there is nothing to prevent him from advising the Governor-General to re-appoint him.

The question whether the recommendation of the Tribunal to the Head of State is non-justiciable or not gives rise to some difficulty. But I agree with the Chief Justice and for reasons given by him that a recommendation of a tribunal to the Head of State is not meant to be “advice” within the meaning of s. 86 (4) of the Constitution and is not non-justiciable.

It may seem deplorable that an order of the Head of State should be questioned in this Court. But the fault lies in the drafting of the Leadership Act, firstly, in providing for dismissal from office instead of a recommendation for dismissal, and, secondly, in failing to provide a sanction in addition to dismissal from office — which s. 28 (1) (g) (ii) of the Constitution clearly enabled it to do.

For these reasons I would make an order to bring up and quash both the order of the independent Tribunal that Mr. Sasakila be dismissed from office as well as the recommendation to the Head of State that he be dismissed from office. The order of the Head of State that Mr. Sasakila be dismissed as member of Parliament must be quashed and there must be a declaratory order that Mr. Sasakila now is and never has ceased to be a member of Parliament.

KEARNEY J:  In these proceedings Mr. Boston seeks a certiorari. It is clear that this Court has power to review by certiorari the Tribunal’s decision and recommendation, to ensure that it kept within its powers and observed the law in that which it did. Constitution ss. 60, 155 (4) and Sch. 2.4 enlarge the scope of certiorari beyond that which it has in the common law of England, and enable the thickets of technicality and inconsistency to be cut away, with the beneficial result that the law concerning judicial control is not here bedevilled by complex restrictive procedures and practices. However, even on the basis of the adopted common law, certiorari would lie, since the Tribunal’s function is conclusively to determine the right to tenure of an office, expressly under s. 27 (5) of the Act and in effect under Constitution ss. 28 (1) (g) (ii) and 28 (2), in proceedings in which it is under a duty to act fairly: Constitution ss. 28 (5) and 59; Ridge v. Baldwin [dlv]⁷; R. v. Birmingham City Justice, Ex parte Chris Foreign Foods (Wholesalers) Ltd. [dlvi]⁸.

The facts, and the issues and arguments to which they give rise, are set out in the judgment of the Chief Justice, which I have had the benefit of reading.

The Tribunal found that there had been misconduct in office under s. 4 (6) of the Act. Counsel had apparently argued that s. 4 (1) required the giving of a statement containing the required information, by 16th December, 1975; that breach was complete upon the expiration of that day without statement given and it was not a continuing offence; and that when considering whether there was reasonable excuse for the the failure, only the circumstances as at 16th December, 1975 and prior thereto, should be considered. The Tribunal rejected this argument in the following passage:

“The Tribunal is of the view that it is not a correct interpretation of the Leadership Act to regard compliance with s. 4 as to the first return, impossible after 16th December, 1975. It believes that the obligation to make a return continued. It would seem to make nonsense of the legislation if a Leader could say ‘Well, I had reasonable excuse for not putting in my statement up until the 16th December. It is true that I have not yet put it in and I have had no reasonable excuse in the many months since 16th December but that factor is irrelevant’. In this sense the Tribunal considers that failure to make a return should be regarded as continuing; and the excuse available and the circumstances existing in this case right up to the actual date of the return, should be examined when considering s. 4 (6) and s. 27 (5) of the Act.”

As the Chief Justice has pointed out, it was not argued in these proceedings that the Tribunal had erred in its interpretation of s. 4 of the Act; the reason being perhaps that the Tribunal had found there was no evidence which satisfied it that Mr. Sasakila had reasonable excuse for not giving the statement by 16th December, 1975. I note further that no point was taken here as to the effect of Constitution s. 18 (2) on the Tribunal’s interpretation. However, as the view which it took of s. 4 of the Act conditioned the whole course of the proceedings before the Tribunal, and its conclusions on the vital issues of whether there was serious culpability and of what public policy and the public good required, I consider it necessary to examine that interpretation.

The process of statutory interpretation is essentially intuitive and subjective, in the absence of rules consistently applied. The Act is a Constitutional Law and thus subject to the general principles of interpretation set out in Constitution ss. 10, 25 (3), 63 (3) and Basic Social Obligation (a), and 158 (2); and to the more specific canons in Constitution ss. 24, 109 (4) when read with 12, and Sch. 1.5. In my opinion these provisions amount to a direction to the Court that in carrying out its functions under Constitution s. 18 (1) the words actually used in the Act do not have to be strictly adhered to but are to be construed with the assistance of the materials referred to in Constitution s. 24, so as best to attain what Parliament intended. When Constitution ss. 109 (4) and 158 (2) are themselves interpreted with the aid of s. 24, this view is fortified: there are several references in Chapter 8 of the Report of the Constitutional Planning Committee which point against the Court taking a “narrowly legalistic” or “literal” approach, and thus sacrificing the “spirit for the letter of the Constitution”. The “dynamic character” of the Constitution is emphasized; in interpreting the laws, the judges are urged to use “judicial ingenuity” in appropriate cases, to do justice. One consequence of this approach to interpretation is that the Court should not fail to give a provision the effect it considers the Parliament intended, by applying a literal or “plain meaning” test nor should it attribute to the legislature an intention to produce a capricious or unjust result. The search throughout is for the intention of Parliament, a process which remains, formally at least, one of interpretation and not of legislation, and one in which the best guide remains the provisions of the Act itself.

Applying this approach to s. 4 of the Act, I consider that the Tribunal’s interpretation is correct, for the reasons it gives. This view is supported by Sch. 1.16, which elasticizes otherwise apparently rigid time-limits.

The major questions in these proceedings arise because s. 27 (5) of the Act does not “square” with Constitution s. 28 (1) (g) (ii). These matters are very fully discussed by the Chief Justice and, with respect, and applying the approach to interpretation mentioned above, I agree with his conclusions that the Act is unauthorized insofar as it provides for a power of dismissal rather than a power to recommend dismissal; and that the nature and subject-matter of Constitution s. 28 (1) (g) prevent its being self-executing. I consider that in the absence of jurisdiction either to dismiss or to recommend dismissal, certiorari should issue to bring up and quash the Tribunal’s decision and recommendation of 10th September, 1976, though they be nullities, and an appropriate declaratory order made.

There remains the question of the Governor-General’s Instrument of Dismissal. The issues involved are discussed at length by the Chief Justice. Essentially, it appears to me that it is necessary to balance the right of the citizen to the protection of the law and to effective redress through the Court, with the right to impenetration afforded the Head of State by the non-justiciability provision. A declaration could be made that, the Tribunal’s recommendation of 10th September being a nullity, any action by the Head of State in accordance therewith is likewise a nullity. If I were satisfied that it is open to the Governor-General to act, pursuant to Constitution s. 155 (6), to put any such declaration into concrete effect, I would rest at that; but there appears to be doubt whether any such action is open to the Governor-General, without the actual Instrument being ruled on, in view of the functus officio argument. It is important that the provisions for non-justiciability be given their proper effect, bearing in mind Constitution s. 99 (3). I consider that the Chief Justice’s approach to this difficult problem strikes the proper balance, accords with the general approach to interpretation I have mentioned, and amounts to proper enforcement of the Constitution in terms of Constitution ss. 22 and 60.

I agree with the order of the Court as proposed by the Chief Justice.

N1>(1)      Order absolute for writ of certiorari.

N1>(2)      Order that the order dated 10th September, 1976 by the Independent Tribunal appointed under the Organic Law on the Duties and Responsibilities of Leadership, s. 27 (7), and the recommendation by the said Tribunal dated 10th September, 1976, and the order of the Head of State dated 15th September, 1976, insofar as if is thereby ordered that the applicant, Mr. Moses Sasakila, be dismissed from office as Member of Parliament, be removed into this Court and quashed.

N1>(3)      Declare that Mr. Moses Sasakila has at all material times continued to be and remains a Member of Parliament.

Solicitor for the prosecutor: D. O. Boston

Solicitor for respondent Tribunal: K. B. Egan, Acting Public Prosecutor

[dxlix][dl][dli] Section 86 (4) provides: “The question, what (if any) advice was given to the Head of State, or by whom, is non-justiciable.”

[dlii][dliii][dliv] [1914] A.C. 237.

[dlv] [1964] A.C. 40.

[dlvi] [1970] 3 All E.R. 945.