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Supreme Court of Papua New Guinea |
SC 581
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC APPLICATION NO 24 OF 1997
ENFORCEMENT PURSUANT TO CONSTITUTION SECTION 57 APPLICATION BY GABRIEL DUSAVA
Waigani : Amet CJ, Los, Hinchliffe,
Sakora & Sevua JJ
1998: 1 May & 27 October
Constitutional Law – Constitution of the Independent State of Papua New Guinea – Leadership Code – Misconduct in office – Person in a leadership office may be proceeded against for alleged misconduct in a former leadership office –
Constitutional Law – Leadership Code – Misconduct in Office – Purpose of Code discussed-
Constitutional Law – National Goals and Directive Principles – Application of.
Constitutional Interpretation – Sch 1.5 – Fair and liberal meaning – The purposive and expansive approach – National Goals and Directive Principles and Constitutional Planning Committee Report as aid – Constitution s 25.
Constitutional Law – Interpretative Jurisdiction of Supreme Court – Constitution Ss 18 and 19.
Precedents – Supreme Courts power to review and overrule its own earlier decision – per incuriam and obiter dicta – principles restated.
A person holding a current leadership office may be proceeded against for alleged misconduct in a former leadership office, and if found guilty dismissed from office.
Followed and affirmed In re Joseph Auna [1980] PNGLR 500, and SC Reference No 2 of 1992 [1992] PNGLR 336.
G Sheppard, for the Applicant.
C Manek & J Kawi, for the State.
AMET CJ: The factual circumstances of this application are fully recited by Justice Sakora, whose opinion I have had the benefit of reading, and I am content to adopt them.
The single issue of law raised by this application was whether a person holding a current leadership office, as defined by Ss 26 and 27 of the Constitution, may be referred and prosecuted before a leadership tribunal for alleged misconduct in another leadership office he had formerly occupied, and if found guilty of misconduct, dismissed from the current office.
This issue was referred to the Supreme Court pursuant to s 19 of the Constitution in 1992. A senior five member Supreme Court ruled on this very issue. A four-member majority, of which Justice Los and I were members, determined this issue in the affirmative.
The law therefore as it presently applies, as determined by the Supreme Court in the SC Reference No 2 of 1992 [1992] PNGLR 336, is:
“A person holding a (current) leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and if found guilty, dismissed from his current office”.
I was a member of the majority that determined that issue in that decision. All the issues raised in this application were raised and addressed in that decision.
I am not persuaded that the decision in the 1992 Reference is wrong and should not be followed.
I have read the opinions of all of my learned brothers. For the additional reasons that Justices Sakora, Hinchliffe and Sevua, give in their opinions, and with which I also agree, I would refuse the application and confirm the determinations of the Tribunal as being within jurisdiction.
LOS J: The facts and the background leading to the application have been set out in some detail by the Chief Justice and other judges, in particular Justice Sakora. There is no need to repeat them here. The Applicant has brought these proceedings before the Supreme Court under section 57 of the constitution. He says that the Supreme Court can review the decision of the Tribunal because beyond the issue of the penalty recommended by the Tribunal, there was an interference with his property rights. In summary it is argued that the tribunal had no jurisdiction to deal with the applicant consequently he was deprived of the entitlements pertaining to his office as a member of the Parliament and a Minister for State.
Jurisdiction
Various reasons have been advanced as the basis of the Leadership Tribunal lacking jurisdiction to inquire into the allegation of misconduct against the Applicant. The main one is that the tribunal could not conduct any inquiry and dismiss the applicant from his current office for any misconduct in his former office. This submission squarely attacks the the Supreme Courts interpretation and application of sections 26(1) and s 27(2) and 28 of the Constitution and sections 27 and 28 of the Organic Law on the Duties & Responsibilities of Leadership (the Organic Law) in the early decisions. The two mains decisions are Re Joseph Auna (1980) PNGLR 533 and the 1992 SC Reference (1992) PNGLR 336.
Section 26 applies to:
“1. (a) ... “other ministers”
(b) ...
(c) all other members of the Parliament
(d) ...
(e) ...
(f) all heads of Departments of the National Public Service
Section 27(2) says:
“In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subsection (1).”
Section 28 (1)(a) says:
“...an Organic Law may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects
of this Division and of the Organic Law.”
It seems these arguments were raised before the Tribunal but the tribunal ruled that it was bound by the Supreme Court decision in Reference No. 2 of 1992 (1992) PNGLR 336. It is submitted that the 1992 Reference is invalid because (a) it purports to follow a case which is not authority for the proposition for which it was cited, and (b) the decision is in breach of s 100(3) of the Constitution. That is the 1992 decision violated the doctrine of the separation of powers in the constitution. In other words is it is the duty of the Legislature to legislate not the Courts.
Re: Joseph Auna (1980) PNGLR 533
This was the first case in which the Supreme Court had to deal with the issue similar to the one raised in this review. It was decided
in that case that a leader could be dismissed from the leadership office he currently holds for a misconduct in an office he had
previously held.
1992 SC Reference (1992) PNGLR 336.
In this reference the Court by majority adopted the principle in Auna’s case. I was in the majority because I was persuaded
with the argument that the court must enforce the primary purpose of the leadership code. That is the Leadership Code was intended to protect the people of Papua New Guinea from improper conducts by leaders. When a leader is guilty, he cannot be
left to go scot-free in many ways including resignation. Therefore if a leader, who has resigned from his office to avoid an investigation
prosecution and penalties, occupies another leadership office later he must be penalized or dismissed from that office for his misconduct
in his earlier office. The Leadership Code and the Organic Laws are silent on the issue. The Court therefore applied the intent of the code with a comfort of the provisions of section 25 of the
constitution. The Court had referred and relied on a part of the decision in Reference by Simbu Provincial Executive (1987) PNGLR 151 and said (reading from the head note No. 5):
“Section 25 of the Constitution is entirely relevant to generous interpretation of the constitution, avoiding the austerity of tabulated legalism and enables the National Goals and Directive Principles to be fully taken into account.”
The Court had taken the purposive approach because the leadership code was silent. This type of approaches has been followed in the general statutory interpretation in many early cases like Supreme Court Reference No 6 of 1984 (1985) PNGLR 31 and PLAR of 1980 (1980) PNGLR 326.
Mr Sheppard however submits that the Court in 1992 Reference had stepped out of the line and had stepped into the law making function of the Parliament. I am persuaded that in 1992 Reference, in our zeal to protect the people of Papua New Guinea from the action of any corrupt leader we had breached section 100 of the Constitution. In this respect I adopt what Kapi, DCJ said in his dissenting judgment at page 358-59:
“Applying the most liberal interpretation of these words, one cannot come to the construction that these words prescribe that a leader maybe charged in his current office for misconduct in a previous office ...........................................................................
... In essence, the ... proposition is a formulation of a new principle by the Court. This is not a conclusion reached by construction of the relevant constitutional laws but, rather, it is judicial legislation in the guise of judicial interpretation”.
The Acting Solicitor General while acknowledging that under Schedule 2.9 of the Constitution the Supreme Court is not bound by its early decision, submitted that 1992 decision should not be reviewed or overruled. He has referred to numerous reasons, conditions and circumstances under which the Supreme Court may overrule it’s own earlier decisions. Some of these include the principles that:
- An earlier decision should only be overruled after great caution;
- Where the court overrules, more than 3 judges should be on the Bench and preferably the Chief Justice be amongst them.
- Full argument on the desirability of the court changing the law rather than the legislature so doing should be presented;
- Care should be taken in questioning decision which have stood for only a short time where the court is made up of different judges that heard the case sought to be overruled.
- Where the principles of law pronounced by the court are clearly wrong; and
- The court will only review if there are exceptional circumstances.
The decision sought to be reviewed is relatively recent, it was delivered about 6 years ago but in my view, the review sought is not for the sake of review. Full arguments have been presented and heard especially when looking at it from the application of the Leadership Code, over-ruling of the 1992 SC Reference may leave a vaccum in the law. It is my view however, since the decision there has been sufficient time for the legislature to act to fill in the vaccum.
What is wrong with the 1992 decision
It is submitted on behalf of the applicant that it purports to follow the decision in Auna’s case. I accept that the facts
in Auna’s case could not allow such a decision. Moreover the decision did not arise from any central issue which was argued
fully to arrive at such a principle. The Supreme Court merely made a comment in passing.
In 1992 Reference, it was the first time ever that the Supreme Court ever got down to considering fully the issue however the question did not arise from any factual situation as it arises before us now in the application before us. Section 27(2) says a leader “shall not use his office for personal gain”. Without reading anything into it, it is my view that “his office” must mean the current office and not previous, former or past office. Where “office” is meant to include other offices, the provision of the Constitution and the Organic Law must say so. In section 26(2) of the Constitution for example it is said that –
“This Division applies to and in relation to a person referred to in subsection (1) not only in the office referred to in that subsection but also in any other office or position he holds under any law by virtue of that office”.
In the applicant’s case the position of Departmental head that he held previously does not fall in the definition.
By a strict application of law, the Supreme Court is not thereby encouraging any mischief to continue. Those leaders who know that they have not done anything wrong can remain to receive a declaration of ‘no fault’ by a tribunal. Those who want to resign are free to resign. It is my view that resignation from a high and respected office is a self imposed punishment. Many who resign may not repeat similar conducts. So the court should not consider that to apply strict law may encourage the mischief that the Leadership Code seeks to prevent.
I would therefore grant the review, declare the findings of Doherty Tribunal invalid and quash the consequential orders.
HINCHLIFFE J: I have had the opportunity of reading the judgements of Sakora, J and Sevua, J and I agree with them, but I also wish to say something further. It is quite clear that the Leadership Code was passed in Parliament to protect the people of Papua New Guinea. Section 27 of the Constitution covers Leaders “Responsibilities of Office”. It provides as follows:-
27. Responsibilities of office.
(1) A person to whom this Division applies has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not—
(a) to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties; or
(b) to demean his office or position; or
(c) to allow his public or official integrity, or his personal integrity, to be called into question; or
(d) to endanger or diminish respect for and confidence in the integrity of government in Papua New Guinea.
(2) In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1).
(3) it is the further duty of a person to whom this Division applies—
(a) to ensure, as far as is within his lawful power, that his spouse and children and any other persons for whom he is responsible (whether morally, legally or by usage), including nominees, trustees and agents, do not conduct themselves in a way that might be expected to give rise to doubt in the public mind as to his complying with his duties under this section; and
(b) if necessary, to publicly disassociate himself from any activity or enterprise of any of his associates, or of a person referred to in paragraph (a), that might be expected to give rise to such a doubt.
(4) The Ombudsman Commission or other authority prescribed for the purpose under Section 28 (further provisions) may, subject to this Division and to any Organic Law made for the purposes of this Division, give directions, either generally or in a particular case, to ensure the attainment of the objects of this section.
(5) A person to whom this Division applies who—
(a) is convicted of an offence in respect of his office or position or in relation to the performance of his functions or duties; or
(b) fails to comply with a direction under Subsection (4) or otherwise fails to carry out the obligations imposed by Subsection (1), (2) and (3), is guilty of misconduct in office.
To my mind a person who is subject to the Leadership Code is a person who is expected to perform at a level of excellence well beyond the ordinary citizen. If that person breaches Section 27 of the Constitution then he can expect to be dealt with if he is presently in office. The question has arisen in this Reference as to whether a person in office can be dealt with for allegations of misconduct occurring whilst in a former office. It has been submitted that allegations of misconduct can only be levelled at a person in relation to the office he presently holds and not in relation to a former office.
The Constitution and the Organic law on the Duties and Responsibilities of Leadership do not say whether or not “office” is referring to a former office. The applicant submits that a former office is not included and if it was meant to be included it would specifically refer to a “former office”. I do not agree. The word “office” is not defined, so to argue that “if a former office was to be included then it would specifically say so” is to my mind an argument without foundation. In fact I am of the view that the relevant sections of the Constitution and the Organic law referring to “office”, cover “former office” equally as much as covering “current office”. To that extent it may well have been considered by the draftsmen at the time so as to ensure that a situation would not arise where a person who failed in his responsibilities in one office is not able to take up another office soon after. That would also ensure that the level of excellence expected of leaders would be maintained.
Are we really meant to believe that a person who has failed in his responsibilities of office can rectify the situation by taking up another office. To my mind that is parting company with reality. It could not have been the intention of the legislature at the time. It defeats the whole purpose of the Leadership Code. It would mean that a person who has proved himself unworthy of being a leader can all of a sudden become “worthy” again by taking up another office. I am of the view that is not right. The same person could once again breach his responsibilities and to avoid prosecution he could resign that position and then take up another office. The situation could become quite ridiculous and all the time the person is cunningly avoiding prosecution.
We would then have a person who is considered a leader in one office but has failed in his responsibilities in a former office. Is that the way in which we should read the relevant sections of the Constitution and the Organic Law? Or should we read it according to the opposing argument which prevents a person from abusing the system and of course upholds the purpose of the Leadership Code thereby guaranteeing the protection of the people of Papua New Guinea. My view is somewhat supported by Section 28 (4) of the Constitution which provides as follows:-
“(4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him” (emphasis mine).
The fundamental principles of constitutional interpretation and application of the rule of law are:-
(a) Adherence by all to the rule of law.
(b) Giving paramount consideration to the dispensation of justice when interpreting the Constitution: Constitution. s 158(2).
(c) In interpreting the Constitution searching for the purpose of Constitutional provisions in a fair and liberal manner so as to attain justice: see Constitution Sch. 1.5(2).
With regard to (c) above involving the Constitution searching for the purpose and intention of the provision I refer to SCR NO. 3 of 1986, Ref. by Simbu Provincial Executive [1989] PNGLR 154, Amet, J (as he then was) and Barnett, J referred to it as the search for “the spirit of the Constitution”. Barnett, J couched it in these terms:
“When interpreting the details of a provision in a constitutional law therefore it is an essential pre-requisite for the judicial mind to be enlightened by the spirit of the Constitution itself. This enlightenment comes form developing a thorough understanding of the National Goals and Directive Principles by taking an overview which will place the particular provision in the context of the total legislative scheme of which it forms a part-and by seeking to understand the intention of the founding fathers as they expressed it on behalf of the people, when enacting the Constitution and subsequent amendments.”
Reference to the spirit of the Constitution has been made in many other cases. An authoritative statement of principle was stated by Amet, C.J. in Haiveta -v- Wingti & 2 Ors Unreported Supreme Court Judgment in SC No. 144 of 1993 (25th August 1994) where His Honour said:-
“This Constitution is thus a vibrant and living organism that speaks from time to time.......One task of judicial interpretation then is to uphold the cause of justice. What is the interpretation that will best achieve a sense of fairness and justice. The test or standard must be an objective one. It is not what I believe to be right. It is what I may reasonably believe that ordinary Papua New Guienans, of normal intellect, understanding and conscience might reasonably look upon as right. It must be an interpretation that gives recognisance to and accords with the ordinary person’s objective perception of the public or national interest. The national and public interest are in the context synonymous.
Because Constitutional interpretation is the sole preserve of the Supreme Court, the highest judicial authority in the nation, as delegated by the People to it through the Constitution, the court has to be responsive to the constitutional values. The social philosophy of the Constitution must inspire the judicial decision making process to adopt a broad goal-oriented and purposive approach directed towards advancing the constitutional objectives when interpreting the Constitution”.
The Courts have favoured the liberal and purposive approach of statutory constructions in their endeavour to achieve substantial justice. In PLAR No. 1 of 1980 [1980] PNGLR 326, the Supreme Court explicity ruled out the “literal rule” of statutory interpretation. Also see SCR No. 6 of 1984 [1985] PNGLR 31.
In PLAR No. 1 of 1980 (supra) Wilson, J said at p.331:
In Kaporonovski v. The Queen (18) Walsh, J stated: “I recognize that that view gives a restricted operation to s. 269. It is said also that it produces a capricious result ... It is for the Parliament, if it wishes to do so, to remedy any anomalies that may be found in the Code.”
With all due respect to Walsh J, his words sound to me like a voice from the past. In much the same way, some similar words used by the Employment Appeal Tribunal in Nothman v. Barnet London Borough Council (19) sounded to Lord Denning like a voice from the past. The passage under consideration in that case was:
“Clearly someone has a duty to do something about this absurd and unjust situation. It may well be, however, that there is nothing we can do about it. We are bound to apply provisions of an Act of Parliament however absurd, out of date and unfair they may appear to be. The duty of making or altering the law is the function of Parliament and is not, as many mistaken persons seem to imagine, the privilege of the judges or the judicial tribunals.”
His Lordship said (20):
“I have read that passage at large because I wish to repudiate it. It sounds to me like a voice from the past. I heard many such words 25 years ago. It is the voice of the strict constructionist. It is the voice of those who go by the letter. It is the voice of those who adopt the strict literal and grammatical construction of the words, heedless of the consequences. Faced with glaring injustice, the judges are, it is said, impotent, incapable and sterile. Not so with us in this court. The literal method is now completely out of date. It has been replaced by the approach which Lord Diplock described as the ‘purposive approach’. He said so in Kammins Ballrooms Co. Ltd. v. Zenith Investments (Torquay) Ltd. (21); and it was recommended by Sir David Renton and his colleagues in their valuable report on the Preparation of Legislation (1975) Cmnd. 6053, pp. 135-148. In all cases now in the interpretation of statutes we adopt such a construction as will ‘promote the general legislative purpose’ underlying the provision. It is no longer necessary for the judges to wring their hands and say: ‘There is nothing we can do about it.’ Whenever the strict interpretation of a statute gives rise to an absurd and unjust situation, the judges can and should use their good sense to remedy it—by reading words in, if necessary—so as to do what Parliament would have done, had they had the situation in mind.”
(18) [1973] HCA 35; [1973] 133 C.L.R. 209 at pp. 222-3.
(19) [1978] 1 W.L.R. 220 at p. 22.
(20) [1978] 1 W.L.R. at p. 228.
(21) [1971] A.C. 850 at p. 899.
With regard to the general principles of statutory construction Courts do not usurp the Parliament’s legislative function. Judges cannot, under the thin disguise of statutory construction interpret laws in such a fashion to amend laws or to fill gaps for to do so is to “run the risk of endangering the public confidence and impartially which is essential to the rule of law:” SCR No. 2 of 1992 [1992] PNGLR 336 at p. 364, per Kapi, Dep. C.J. Whilst this caution should be taken heed of, one should not forget that the Courts do make laws in the process of statutory interpretation. As to how far they go is a matter of degree. Given the purposive approach accepted by the Supreme Court, judges are more likely than not to make new laws in the process of judicial interpretation.
I agree with what Lord Denning said above, as to my mind it is being sensible, just and fair and above all it is applying common sense. I am quite satisfied that I should use my good sense to remedy the situation by reading in the words “former office” where applicable so as “to do what Parliament would have done had they had the situation in mind.”
I would therefore uphold the decision of the Tribunal and dismiss the applicant’s review with costs.
SAKORA, J: Mr Gabriel Dusava, the applicant here, joined the Department of Foreign Affairs and Trade in 1978. On 8 January 1991, he was appointed by the National Executive Council (NEC) as Secretary of the Department, thereby becoming a “Leader” and thus subject to the Leadership Code (LC) pursuant to the combined effects of ss.26 and 27 of the Constitution.
On 16 July 1996 the Ombudsman Commission (OC) reported that it had conducted an investigation into the conduct of Mr Dusava as a Leader in the office of Secretary of Foreign Affairs, pursuant to ss.217(1), 218 and 219 Constitution and ss.3, 17, 20 and 21 of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). And the investigation concluded that the OC was satisfied that there was a prima facie case that the Leader was guilty of “misconduct in office”, and consequently referred the matter to the Public Prosecutor pursuant to s.27(1)(a) OLDRL.
The Public Prosecutor considered that the matter should be “proceeded with” and referred it to a Leadership Tribunal (the Tribunal) pursuant to the combined effects of s.27(2) and (7)(e) OLDRL. This took place on 15 October 1996. However, before the tribunal could begin to exercise jurisdiction over the allegations of misconduct in office against Mr Dusava pursuant to s.27(4) OLDRL, he resigned from the National Public Service as a Departmental Head, and thus from his “Leadership” position.
The Tribunal, feeling bound and constrained by the Supreme Court decision in the Auna Case in 1980 (Supreme Court Reference No. 5 of 1980; Re Joseph Auna [1980] PNGLR 500), disbanded as lacking jurisdiction over Mr Dusava who then held no Leadership position.
In the National General Elections of June 1997, Mr Dusava contested as a candidate for the Open Parliamentary seat of Yangoru-Sausia in the East Sepik Province and won. Upon the formation of the new national government, Mr Dusava was appointed to Cabinet as Minister for Education and Cultural Affairs. Thus, by these two events, the election to Parliament and appointment as Minister (upon their respective swearing-in), Mr Dusava became a Leader subject to the provisions of the LC, once again by the combined effects of ss.26 and 27 Constitution.
On 19 August 1997, the Public Prosecutor once again referred the Leader to the Leadership Tribunal appointed pursuant to s.27(2) and (7)(e) OLDRL. The Tribunal was chaired by the Honourable Madam Justice Doherty with two senior Magistrates members. The Public Prosecutor had referred 17 alleged instances of misconduct in office for the Tribunal to investigate and determine in the exercise of its powers pursuant to s.28(1)(g) Constitution and s.27(2), (3) and (4) OLDRL. And these 17 instances or counts of misconduct in office were alleged to have been committed whilst Mr Dusava had been occupying the Leadership position of a Departmental Head between (1991 and 1996) April 1991 and December 1993. It was contended these allegations breached s.27 Constitution and ss.5 and 13(b) OLDRL.
On 8 October 1997 the Tribunal announced its findings that the Leader, the applicant, was guilty of the 17 counts alleged. Pursuant to s.27(5) OLDRL, the Tribunal, on 10 October 1997, imposed various sanctions from fines, suspensions, restitutions and dismissal from office, and made “concurrent”. Thus, by the imposition of the most serious sanction, recommendation for dismissal from office or position (s.27(5)(a) OLDRL), the Tribunal had determined that the Leader’s behaviour (or more appropriately, his misconduct) demonstrated “serious culpability”. Consequently, on 17 October 1997, the Governor-General executed an Instrument of Dismissal dismissing Mr Dusava from the Leadership offices or positions of Minister and Member of Parliament.
It should be noted here that upon the Public Prosecutor formally referring the matter (the 17 counts of misconduct in office) to the Tribunal as stated above, s.28 OLDRL came into automatic operation. Section 28 is in the following terms:
28. Suspension
(1) Where a matter has been referred to a Tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty.
(2) A suspension under Sub-section (1) is on fully pay.
The applicant comes to this court pursuant to s.57 Constitution purportedly to enforce a guaranteed right that is alleged to have been breached to his detriment. Sections 57 and 58 provide that a right or freedom established by Part 111.3 of the Constitution “shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement....”. Section 58 provides that the court may award damages, either compensatory or exemplary, where a person whose rights and freedoms are protected by the Constitution and have been infringed.
It must be clarified here that the only way of enforcing a right acquired by a person as a result of such an infringement is by an application under s.57. Thus, the general provisions of ss.22 and 23 Constitution must give way to specific means of enforcement provided either in the Constitution or in some other law. Those general provisions apply only when no other law provides a means of enforcement: Reference No. 1 of 1977 [1977] PNGLR 362 (a 5-member Supreme Court considering the admissibility or otherwise of a confession obtained from an accused person in breach of s.42(2) Constitution). The specific right sought to be protected and enforced by this application is that found under s.53(I), which is in the following terms:
53. Protection from unjust deprivation of property.
(1) Subject to Section 54 (special provision in relation to certain lands) and except as permitted by this section, possession may not be compulsorily taken of any property, and interest in or right over property may be compulsorily acquired, except in accordance with an Organic Law or an Act of Parliament, and unless -
(a) the property is required for -
(i) a public purpose; or
(ii) a reason that is reasonably justified in a democratic society that has a proper regard for the rights and dignity of mankind,
that is so declared and so described, for the purposes of this section, in an Organic Law on an Act of Parliament; and
(b) the necessity for the taking of possession or acquisition for the attainment of that purpose or for that reason is such as to afford reasonable justification for the causing of any resultant hardship to any person affected.
It is contended, therefore, that Mr Dusava’s property rights under the Constitution, namely his “Parliamentary Entitlements”, have been improperly and unconstitutionally infringed by the wrongful exercise of jurisdiction over him by the Tribunal. Thus, it is argued, the Tribunal lacked the necessary jurisdiction from the very outset, and that, therefore, its actions and decisions/determinations from that point onwards (wrongful and illegal assumption of jurisdiction on 19 August 1997 and the exercise of powers in respect thereof) were null and void, of no legal effect.
As all other matters or issues raised in the application (see, Submissions of the Applicant: Relief (sic) sought in this application, pages 9-10) hinge upon this court’s determination of the threshold question of “jurisdiction”, this judgment is confined to this issue only.
Jurisdictional Challenge
The challenge to jurisdiction is based on the applicant’s contention that the Tribunal, under the peculiar circumstances of
the subject “Referral”, had jurisdiction only to investigate allegations of misconduct in office in respect of an office
or position specified under s.26(1) Constitution currently held by the applicant, and not in respect of a former and different office or position. Putting it another way, it has
been contended that the 17 counts in the Referral relate to 5 specific incidents of alleged misconduct in office during the applicant’s
tenure in an office or position he no longer occupies or holds. Therefore, he argues, he is now not subject to the investigation of the Tribunal in respect of those allegations, it having lost any such jurisdiction once he resigned
from that office or position in 1996. It does become, I would suggest not unreasonably here, an argument that not inconveniently
“rides on the back” of the “resignation” or “term expiry” situations discussed in the Auna Case and Supreme Court Reference No. 2 of 1992 [1992] PNGLR 336, and extends it to cover the “subsequent and different” office or position situation.
This same jurisdictional challenge was launched before the Tribunal itself, whereupon it ruled that it did possess the necessary jurisdiction to proceed to exercise power(s): to investigate and determine those allegations, on the highest of authority in this country, the Supreme Court’s 4-1 majority opinion on a reference under s.19 Constitution: Supreme Court Reference No. 2 of 1992 [1992] PNGLR 336 (the “1992 Reference”). It is instructive to note that two members of the present court (Amet CJ and Los, J) were part of that majority court.
Now, the validity of the 1992 Reference is being challenged by the applicant as being invalid and consequently not forming any part of the law of Papua New Guinea (PNG) because, it is argued:
1. It purports to follow a case (the Auna Case) which is not authority for the proposition for which it is cited.
2. In breach of s.100(3) of the Constitution and in violation of the doctrine of the (sic) separation of powers in the Constitution it legislates rather than interprets.
In support of the first argument, learned counsel for the applicant submits that the court’s observations in the Auna Case were per incuriam because:
The persons to whom the LC applies are set out in s.26 Constitution, which reads as follows:
26. Application of Division 2 (Leadership Code).
(1) The provisions of this Division apply to and in relation to -
(a) the Prime Minister, the Deputy Prime Minister and the other Ministers; and
(b) the Leader and Deputy Leader of the Opposition; and
(c) all other members of the Parliament; and
(d) members of provincial assemblies; and
(e) all constitutional office-holders within the meaning of Section 221 (definitions); and
(f) all heads of Departments of the National Public Service; and
(g) all heads of or members of the boards or other controlling bodies of statutory authorities; and
(h) the Commissioner of Police; and
(i) the Commander of the Defence Force; and
(j) all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and
(k) the public trustee; and
(l) the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and
(m) executive officers of registered political parties as defined by Section 128 (“registered political party”); and
(n) person holding such public offices as are declared under Sub-section (3) to be offices to and in relation to which this Division applies.
The proposition in the Auna Case that is being identified for particular challenge in support of the overall challenge to the 1992 Reference appears on page 505 of the law report (supra), the last sentence of the paragraph, reproduced hereunder:
It is true, on the view we take, that in the absence of legislative provision under s.26(3) of the Constitution, which may well be impracticable, a leader who resigns from office before a finding of misconduct in office is made, is not subject to the disqualifications on dismissal which flow from s.31(I) of the Constitution. By itself, however, that anomaly is not sufficient to change the otherwise consistent thrust of the legislation. It is clear from the view we take that if any such leader assumed another leadership office, any proved misconduct in his earlier office could result in his being dismissed from his later leadership office.
The Auna Case has been authority for two propositions of law, the second of which is set out above (and being challenged here). The first appears in a larger paragraph on page 504 of the law report (supra), containing the second proposition as well, and it is instructive and helpful that the entire extract should be set out hereunder:
We are of the opinion that the Leadership Code is directed to persons actually holding an office as specified in s.26 of the Constitution;
and that, as the Tribunal put it in this case, “the entire thrust of the legislation is directed towards removing a person
who is considered, after due inquiry, to be unworthy of continuing in office”. All the provisions of the Constitution and
the Organic Law are consistent with, and support, that conclusion. Once the primary purpose of the legislation is clear, it is not
anomalous that a person, having ceased to hold any of the designated offices, becomes immune from proceedings under the Leadership
Code in respect of any alleged misconduct in office, during the time he held office. The purpose is to prevent continuance in office
of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged misconduct
in leadership office which he had formerly held; and, if found guilty, dismissed from his current office.
Mr Auna’s particular circumstances were as follows. He was the Executive Director of the then National Investment and Development
Authority (NIDA) from 2 December 1976 until 24 July 1980, when his term appointment expired. The very next day upon expiry the NEC
resolved to appoint Mr Auna as Ambassador to the Kingdom of Belgium and the EEC/ACP. By virtue of s.26(1)(g) Constitution the office of Executive Director of NIDA was a “Leadership Office”, an incumbent of which was subject to the provisions
of the LC. As such Mr Auna had been under the investigation of the OC on certain allegations of misconduct in office and, upon being
satisfied that there was a prima facie case against him, referred him to the Public Prosecutor on 21 August 1980 pursuant to s.29(1) Constitution and s.27(1)(a) OLDRL.
It would appear that unbeknown to the Public Prosecutor Mr Auna’s status as “Ambassador Designate” had been revoked by the NEC on 27 August 1980. Thus, on 30 September, after considering the matter referred to him by the OC ought to be proceeded with, the Public Prosecutor referred the matter for investigation by a Leadership Tribunal empanelled on 26 September for the purpose.
When the Tribunal convened to exercise jurisdiction over Mr Auna on 22 October, his lawyer took the preliminary point that the Tribunal had no jurisdiction over the allegations against him. Pursuant to s.18(2) Constitution, the Tribunal referred two main questions to the Supreme Court for its interpretation. These questions resulted in the 5-member Supreme Court’s unanimous opinion, on the interpretation and application of a provision of the Constitution, s.26(1), vis-a-vis the LC enforcement provisions of both the Constitution and the OLDRL. From the exercise of this special jurisdiction have emerged the two propositions of law (supra), which are jointly summarised in the headnotes as:
A person to whom the Leadership Code applies pursuant to s.26(1) of the Constitution may only be dealt with by a Tribunal constituted under s.27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership, for misconduct in office whilst he is the holder of an office to which the Code applies; it need not be the office which was the subject of investigation into alleged misconduct: he cannot be so dealt with when he no longer occupies an office to which the Code applies.
As the court noted, the questions were fully argued before it. The immediate practical effect of the court’s opinion on the interpretation and application of s.26(1) Constitution was that the “referring” Tribunal had no jurisdiction to investigate and determine the allegations of misconduct in office against Mr Auna, he no longer holding any Leadership office or position.
It is respectfully suggested that, on the facts of the reference, if the NEC had not revoked the appointment of Mr Auna as an “Ambassador Designate” and this had become confirmed through the normal diplomatic conventions and channels, he would have been a “Leader” pursuant to s.26(1)(j) Constitution at the time the “matter” was referred to the Tribunal on 30 September 1980. Of course, if he had resigned his ambassadorial post soon after the referral then the Tribunal would have lacked jurisdiction. These comments are made here to note that the whole factual circumstances giving rise to the reference did not rest solely on the expiration of Mr Auna’s term appointment as Executive Director of NIDA. They include the appointment as “Ambassador Designate” and the revocation of this appointment before the appointment of the Tribunal and referral of the “matter” to it. It is under this background that the second question was drafted and referred to the Supreme Court, “...the second question properly posed...”: the 1992 Reference (page 345).
Judicial Review: Constitutional Interpretation and Application
The concept of Constitutional supremacy is inextricably linked to that of judicial review of the constitutionality of the acts of other arms of government. In PNG, as in the United States (US), the task of interpreting and applying the provisions of the Constitution and the Organic Laws was explicitly assigned to the judiciary by ss.18 and 19 Constitution. The Constitutional Planning Committee (CPC) recommended this role principally because of the long-standing role of the courts in resolving disputes according to law and their general impartiality. The US Supreme Court took on the task for the first time in 1803 in Marbury v Madison [1803] USSC 16; 1 Cranch, 137, 2L.Ed.60 (1803), a case with major political implications. The CPC did acknowledge that this role would involve the courts in PNG in political controversy and sometimes in confrontation with the executive and other branches of government.
But, except for the few cases such as: Premdas [1979] PNGLR 325; Rooney (No. 2) [1979] PNGLR 448; and Bouraga [1982] PNGLR 178, both the National and Supreme Courts have on a number of occasions held invalid legislation (or proposed legislation), or executive/administrative action of significance to government policies without leading to any clash with the government.
As to the meaning of the phrase “constitutional review”, the starting point is as used in s.18(1), which speaks of jurisdiction “as to any question relating to the interpretation or application of any provision of a Constitutional Law”. The power to decide such questions is what is referred to as constitutional review. In this, the courts may be called upon to consider the validity of both legislative and executive action: e.g; Constitutional Reference No. 3 of 1978; In the matter of s.11(3) of the Inter-Group Fighting Act 1977 [1978] PNGLR 421. The power extends to declare invalid Organic Laws which may conflict with the Constitution: see, for e.g; In re Moresby North East Election Petition, Patterson Lowa v Goasa Damena [1977] PNGLR 429.
Constitutional review includes also the power to examine administrative action; that is, action taken pursuant to a power or duty conferred or imposed by legislation on some person or body. Administrative action must of course be within the scope of the power or duty as it is defined in the authorizing or enabling legislation. In addition, such action must conform to any law (such as a Constitutional Law) superior to the authorising law.
The purpose of s.18 Constitution is clear from the provision itself, which is in the following terms:
18. Original Interpretative Jurisdiction of the Supreme Court.
(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional law.
(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexations or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.
The CPC was in no doubt about this special jurisdiction of the Supreme Court. After considering the enforcement provisions it had recommended and wondering about (and eventually recommending) the main responsibility to the judiciary, the CPC said the following (CPC Report Ch.8 page 13):
147. We recommend that whenever, in proceedings before a court other than the Supreme Court, a justiciable constitutional issue other than one concerning the human rights provisions of the Constitution arises, that court shall refer the issue to the Supreme Court for determination. Once the Supreme Court has decided the constitutional issue, the court which was originally dealing with the case must determine it in accordance with the ruling of the Supreme Court.
(Underlining mine)
The Supreme Court in SCR No. 3 of 1982; Re ss.57 and 155(4) of the Constitution [1982] PNGLR 405 reinforced the CPC comments in the above recommendation by stating:
We do not consider s.18(2) allows hypothetical questions to be referred by the lower tribunals to the Supreme Court. This situation is within the ambit... of s.19. We are of the opinion that a question which is referred to the Supreme Court must arise out of a factual situation established by the lower court or tribunal... In constitutional matters referred under s.18 of the Constitution, it is our view that all findings of facts necessary for interpretation or application of a constitutional law must be made by the court or tribunal before making the reference (per curiam: Kidu CJ; Kapi DCJ and Bredmeyer J; pages 407-408).
In an earlier reference: SCR NO 2 of 1981; In re s.19(1)(f) of the Criminal Code [1982] PNGLR 150 the learned Chief Justice (Kidu CJ. at page 153) emphasised the effect of referral under s.18(2) in this way:
When a Judge, a Magistrate or a Tribunal finds it necessary to refer a Constitutional question to [the Supreme Court] the proper procedure, in my view, is to defer making any order disposing of the case and refer the question to [the Supreme] Court. The final disposition of the case should await the decision of [the Supreme] Court.
As to the purpose of s.19 Constitution, the CPC had no doubts also as to what was intended in the Independence Constitution. In its Report (CPC Report Ch.8 p.16), it said the following about Advisory Opinions:
150. A common device to get round the technical rules which restrict access to courts (as well as for other objectives) is to vest the jurisdiction to give an advisory opinion on constitutional issues in the courts. Under such a procedure specified bodies are authorised to refer a matter to the court for its opinion. It is not always necessary that a dispute should have arisen; an institution may wish to have an authoritative ruling on a constitutional point before embarking on a particular piece of legislation or a certain policy. It is flexible in that a party or parties can define clearly and precisely the issues on which they need a ruling, and yet the ruling is, strictly speaking, not binding.
(Underlining mine)
153. We envisage advisory opinions as serving two aims. An advisory opinion will help an institution charged with the enforcement of a constitutional provision or the executive to establish what the law on a particular constitutional point is. It should also help to resolve a dispute about what the constitutional law is on a particular issue before the dispute becomes aggravated and the parties to it take strong and inflexible positions. It is important, however, to regard the advisory opinion as a rather special procedure to be resorted to only in exceptional circumstances.
Section 19(1) and (2) are in the following terms:
19. Special Reference to the Supreme Court.
(1) Subject to Sub-section (4), the Supreme Court shall, on application by an authority referred to in Sub-section (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.
(2) An opinion given under Sub-section (1) has the same binding effect as any other decision of the Supreme Court.
(Underlining mine)
Judicial Law-Making
Sub-section (3) gives a list of authorities conferred locus standi (by the Constitution itself) to apply under Sub-section (1). This list is not exhaustive (as contrarily held in Mopio v The Speaker [1977] PNGLR 420), as it does not cover the field in relation to public interest constitutional questions which can be referred under s.18: SCR No. 4 of 1980; Re petition of MT Somare [1981] PNGLR 265.
Sub-section (4) gives wide powers to the Supreme Court “to make rules as to the cases and circumstances in which it may decline to give an opinion. It may decline to do so if in its opinion the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea”: per Miles J. in SCR No. 4 of 1980; Re petition of MT Somare (supra, at p.301).
The Constitution, through s.24, enables the courts to take account of the CPC Report and the debates in both the House of Assembly and the Constituent Assembly. The provision reads as follows:
24. Use of certain materials as aids to interpretation.
(1) The official records of debates and of votes and proceedings -
(a) in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and
(b) in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purpose of or in connection with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provision of a Constitutional Law arises.
(2) .....
(3) .....
Section 24 invites what may be termed the conservative “framers intent” approach to Constitutional interpretation.
It should be explained that the foregoing brief discussions on ss.18 and 19 Constitution have been made necessary by the need to emphasize here that the Supreme Court cases discussed in this application were the direct result of the court’s exercise of a very special, unique and important jurisdiction under the Constitution. And this jurisdiction has meant the court venturing outside the traditional role of the judiciary of law-finding and law-applying, and into the realm of law-making function specifically sanctioned and mandated by the Constitution.
Unlike its counterparts in other countries, the judiciary in Papua New Guinea (PNG) has an explicit and far-reaching law-making responsibilities to discharge. We have to do more than just perform our traditional (inherited) functions of applying the law. Pursuant to the powers vested in us by ss.18 and 19 Constitution we are in a unique position to participate fully in the overall development of the country.
It is a truism that social, economic and political changes in society are only possible through changes in the law and the legal system. This is particularly pertinent in PNG where the inherited economic and political institutions were structured under laws meant for highly developed and sophisticated societies. As well as interpreting the Constitution and applying the laws passed by Parliament, we have to revise, reform and develop through judicial pronouncements the laws that are suitable for the circumstances of the country. No longer can we say with any degree of truth that ‘judges do not make laws, they merely apply them’. Moreover, to say so would be to conveniently forget (or not appreciate at all) the history of the development of the common law in England. No longer can judges in PNG be concerned only with what the law is; we must also consider what it ought to be. The Constitution has ensured that there be no doubt about this.
Lord Denning’s challenge to colonial judges in their application of the English common law in Nyali Ltd. v The A-G of Kenya [1956] IQB 1, 20-21, is most pertinent to the judges of post-independence PNG. The fact that no legal precedent or authority exists on a particular matter should be no bar to judicial determination. As the learned (then) Master of the Roll said in Packer v Packer [1954] P 15, 33:
What is the argument for the other side. Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never go anywhere. The law will stand still while the rest of the world goes on: and that will be bad for both.
In support of the ‘judges merely apply the laws’ argument, it is often said that it would be a naked usurpation of legislative powers of the Parliament if the judiciary attempted to change laws or introduce new ones by its decisions. This argument certainly does not hold water in PNG where the Constitution confers on the judiciary specific law reform and law-making and developing powers. It is also argued that judicial law-making would somehow affect the doctrine of separation of powers, thereby undermining the independence of the judiciary. This argument is usually advanced by the proponents of the strict Montes quieu theory of separation of powers.
This doctrine is incorporated in most constitutions in the world. Its best-known formulation was described by the French philosopher
Montesquieu in a book called L’Esprit des Lois written in 1748. Montesquieu builds on theories of separation of powers enunciated by the ancient Greek philosopher Aristotle and the 17th century English political philosopher Locke.
Monstesquieu felt that separation of powers was necessary to ensure the preservation of political liberty. He wrote:
Political liberty is to be found only when there is no abuse of power. But constant experience shows us that every man invested with power is liable to abuse it, and to carry his authority as far as it will go... To prevent this abuse, it is necessary from the nature of things that one power should be a check on another... When the legislative and executive powers are united in the same person or body... there can be no liberty... Again, there is no liberty if the judicial power is not separated from the legislative and the executive... There would be an end of everything if the same person or body, whether of nobles or of the people, were to exercise all 3 powers.
(Ch. XI, pp. 3-6)
An absolute separation of powers with no co-ordination or contact between the three branches of government would be impossible. What the doctrine does attempt to prevent is too much power being vested in any one person or body and one power having some checks on the others. Probably the most significant aspect of the doctrine is the concept of the independence of the judiciary, requiring the courts to be free from control by the executive or the legislature. The US Constitution provides for a very strict separation of powers.
Stretching the doctrine to its absurd conclusion would mean that in PNG, Ministers, as members of the Executive, could not sit in Parliament and introduce legislation. But here, as in other Commonwealth countries with “parliamentary executives” in the style of the Westminster model, most legislation is initiated and introduced into Parliament by Cabinet Ministers. And subordinate delegated legislation originate in statutory bodies and government departments, not in the national legislature.
As for the concern about the independence of the judiciary, one fails to appreciate how it could be affected adversely, except, of course, where cases of some political moment have the potential for controversy and direct clash between the judiciary and other arms of government (supra). Independence does not mean to exist and to operate in isolation. At least under the PNG Constitution, the judiciary cannot function in a vacuum; it is required to take an active role in the overall development of the country. In any case, as well as being the arbiter on constitutional questions and interpretation, the Supreme Court has a clear legislative power in one special respect: under s19 it has the power to declare an existing or proposed law invalid. The effect of declaring a particular law invalid is to repeal that law. For all intents and purposes, the judiciary is there engaged in legislative functions.
“Proposed law” has been defined to mean a law that has been formally placed before Parliament (s.19(5)). Just as a debate by Parliament would decide the fate of such a bill, the Supreme Court intervenes, by reference (see s.19(3)), and declares whether or not the bill can become law. In this respect the Court thus perform also a legislative function. Schedule 2.5 requires judges to make recommendations as to improvement of the underlying law in the annual reports (see s.187). If the government of the day accepts and implements those recommendations, the judiciary, however indirectly, is involved in the making of a new law. So when some judges still say they do not make laws, are they not resorting to what Jeremy Bentham called “childish fiction”? Sir John Salmond put it this way (Jurisprudence, 10th ed; 1947, London):
Doubtless judges have many times altered the law while endeavouring in good faith to declare it. But we must recognise a distinct law-creating power vested in them (p.179).
The 1992 Reference
I borrow from the headnotes of the 1992 Reference to set down here that that reference arose in circumstances where allegations of misconduct in office were referred to the Leadership Tribunals against members of the National Parliament who resigned from Parliament before the Tribunals completed their investigations and determined the charges. The questions referred were:
1. Whether the resignation ousted or deprived the Tribunals of jurisdiction to continue to investigate and determine the charges of misconduct against the leaders; and
2. Whether the Tribunals had jurisdiction to hear and determine a reference where the holder of an office ceases to occupy that office which he held at the time of the alleged misconduct but is holder of another office within the Leadership Code.
A 5-member court of the most senior judges (that included both the past and present Chief Justices) was invited to review the correctness of the unanimous decision of a previous 5-member court in the Auna Case.
By a 4-1 majority decision, the court answered the questions referred in the following way (omitting the rulings on the pertinent statutory provisions):
1. The entire thrust and primary purpose of the Leadership Code is to preserve the people of Papua New Guinea from improper and corrupt conduct by their leaders. Approved and adopted in Constitutional Reference No. 1 of 1978; Re Leo Robert Morgan [1978] PNGLR 460.
2. A leader is subject to and can only be prosecuted under the Leadership Code whilst he currently holds an office to which the Code applies. Adopted and affirmed in Re Joseph Auna.
3. A person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held, and if found guilty, dismissed from his current office. Adopted and affirmed in Re Joseph Auna.
The learned Deputy Chief Justice was the sole dissenting judge. In respect of the last opinion, His Honour said this:
I have reached the conclusion that this issue could not have been decided by Auna’s case and, at the most, it can be regarded as obiter dictum. I consider that this issue has been raised for the first time before us in this Court (see page 355).
We are simply construing the provisions of the Constitution and the Organic Law and not formulating a new principle of law. If the Parliament intended this to be the case, it would have said so clearly in the Constitution or the Organic Law (see page 356).
In essence, [this] proposition is a formulation of a new principle by the Court. This is not a conclusion reached by construction of the relevant constitutional laws but rather it is judicial legislation in the guise of judicial interpretation. (see page 359)
It is the dissenting judgment of the learned Deputy Chief Justice that the applicant here finds comfort in and assistance from. The first comment that has to be made about the judgment is that, after endorsing the first proposition in the Auna Case, His Honour seemed to have been, with respect, overly concerned with the consequences of dismissal from office and the s.31 Constitution disqualification provision. A disqualification period of 3 years operates following dismissal under the LC preventing such a leader from holding any elective or appointed office (enumerated under s.31). This concern was accompanied by the proposition that a leader who resigned from office whilst an investigation was afoot under the LC and before determination of the allegations could not be “dismissed” retrospectively by the subsequent enforcement of the LC upon the “resigned” leader assuming another leadership post.
With respect, it is from this s.31 perspective that the learned Deputy Chief Justice considered the second proposition of the Auna Case. And thus, His Honour fell into error in finding no “provision in the Constitution or the Organic Law from which it could be inferred that a Tribunal should continue after the leader has left the office” (page 353).
It is of course a matter of record that the Supreme Court in the Auna Case (as indeed in the 1992 Reference) had before it specific statutory provisions of the Constitution and the Organic Law (ss.26 and 29, and 27 and 28 respectively) to consider in the exercise of its original interpretative jurisdiction under s.18 Constitution. That is the very reason why, I would respectfully suggest, His Honour found no difficulty in endorsing the first proposition of the Auna Case, and stating unreservedly in the dissenting judgment (page 353):
In my view, the conclusion in Auna’s Case is the inevitable conclusion one reaches as a matter of construction of the legislation involved.
(Underlining mine)
And this, I would also respectfully suggest, led the learned Deputy Chief Justice to making what in my view were two contradictory statements about statutory construction and formulation of new principles of law (extracted in the headnotes and reproduced, supra).
The second comment about the dissenting judgment of the 1992 Reference I wish to make is in relation to the suggestion that the issue (resulting in the second proposition of the Auna Case) did not arise there but raised for the first time in 1992.
The foregoing discussions do counter this suggestion. Moreover, the majority decision dealt with it (at page 345):
The Court in Auna’s case, which included the Chief justice and Andrew J, enunciated this proposition, in answer to the second question properly posed, after full argument - see p.502. It was not obiter dicta.
(Underlining mine)
In any case, if the matter or the issue had been raised for the first time in 1992 (by a question properly posed in the s.19 reference) it was dealt with by the 1992 Supreme Court, and answered in the positive (see para. 4 headnotes) by the majority. This answers the applicant’s submission that the 1992 majority decision “purports to follow a case (the Auna Case) which is not authority for the proposition for which it is cited”. It becomes a “1992 proposition”.
Finally, as to the learned Deputy Chief Justice’s aversion to formulation of new principles of law through “judicial legislating”, the foregoing discussions on the purposes of ss.18 and 19 Constitution adequately answer this. It is not without significance to note in passing that His Honour did not see any difficulty in this respect in 1980 in the case of SCR No. 4 of 1980; Re petition of MT Somare (supra), where he said:
Having regard to all the matters I have discussed, I would formulate a rule that would draw a line between those who can and those who cannot have standing. At the same time the modern view on locus standi is not restrictive as is the common law. It must have a much wider conception (sic) as has been found in the Canadian cases dealing with constitutional cases.
Grounds of Challenge
Now I deal with each of the arguments advanced in support of the jurisdictional challenge. It has been submitted that what has now become popularly described as the “second proposition” of the Auna Case was the court’s observation(s) made per incuriam.
This Latin phrase loosely translated means: through inadvertence, or lack of care. This means that some relevant statutory provision or precedent, which would have affected the decision, was not brought to the attention of the court. The English Court of Appeal in the leading case of Young v Bristol Aeroplane Co. Ltd. [1940 LB. 718; [1944] 2 AII ER 293 (affirmed [1944] AC 163) established the principle that the Court of Appeal was not bound to follow its own earlier decisions if satisfied that the decision in question was reached per incuriam. The per incuriam principle is of limited application. In Morelle, Ltd. v Wakeling [1955] EWCA Civ 1; [1955] 2 QB 379, at 406, Sir Raymond Evershed, MR reaffirmed that:
As a general rule the only cases in which decisions should be held to have been given per incuriam are those of decisions given in ignorance or forgetfulness of some inconsistent statutory provision or of some authority binding on the court concerned; so that in such cases some part of the decision or some step in the reasoning on which it is based is found, on that account, to be demonstrably wrong. This definition is not necessarily exhaustive, but cases not strictly within it which can properly be held to have been decided per incuriam must, in our judgment, consistently with the stare decisis rule which is an essential feature of our law, be, in the language of Lord Greene MR, of the rarest occurrence.
Thus the doctrine will not be extended to cases which were merely not fully or expertly argued (Joscelyn v Nissen [1970] 2QB 86) or were argued on one side only (as Schorsch Meir was: [1975] QB 416), or were cases in which the court appeared to misunderstand the law or was not aware of considerations of policy underlying a statute or adopted a statutory interpretation which appears to be wrong.
From a proper appreciation of the circumstances surrounding the s.18 reference in the Auna Case, and in the light of the foregoing discussions, it cannot be properly said that the second proposition in that case was made or declared per incuriam. Nor can it be properly said to be obiter dicta.
Osborn’s Concise Law Dictionary (8th ed) defines obiter dictum as: a saying by the way. It is an observation by a judge on a legal question suggested by a case before him, but not arising in such a manner as to require decision. It is, therefore, not binding as a precedent. But there is no justification for regarding obiter dicta a reason given by a judge for his decision because he has given another reason also (ibid).
Put another way, obiter dicta (the plural form) are passing or incidental statements; statements made or decisions reached in a Court opinion which were not necessary to the disposition of the case. They are also propositions of law which do not form part of the ratio decidendi. Professor Goodhart defined obiter dictum as (see Essays in Jurisprudence and Common Law, page 22):
A conclusion based on a fact the existence of which has not been determined by the Court.
There are two types of obiter dicta. And the enormous assistance of Walker and Walker, the learned authors of the useful text, the English Legal System (Butterworth, 6th ed; 1985, pages 136-140), in the following discussion of this topic is respectfully acknowledged. Firstly, a statement of law is regarded as obiter if it is based upon facts which either were not found to exist or, if found, were not found to be material. For example, the famous statement of equitable estoppel contained in the judgment of Denning J (as he then was) in Central London Property Trust, Ltd. v High Trees House, Ltd. [1947] KB 30; [1956] I ALL ER 256n, is clearly obiter since it applied to a set of facts which were not found to be present in the case.
The second type of obiter is a statement of law which, although based on the facts as found, does not form the basis of the decision. An obvious example is a statement of law in support of a dissenting judgment.
The learned authors (supra) make the following statement which I respectfully adopt as reflecting the correct statement of the law on this matter (pages 139-140):
It would be erroneous to suppose that obiter dicta are of no authority. Strictly, they are not of binding authority but have only persuasive authority.
Nevertheless, where the statement in question has fallen from a court of high authority and is a deliberate statement of law as opposed to a casual expression of opinion it will usually be followed in the absence of binding authority to the contrary.
e.g., the statement of the principle of equitable estoppel made by Denning, J. (as he then was) in Central London Property Trust, Ltd., although clearly obiter, has been adopted by superior courts and is now an accepted rule of equity.
There could be no more striking e.g., finally, than the “neighbour principle” propounded by Lord Atkin in M’Alister (or Donoghue v Stevenson [1932] AC 562. This statement of law, though far wider than the decision required, has become the basis of the modern tort of negligence and has been cited and applied on occasions far numerous to mention.
As noted (supra) the second Auna proposition was not obiter dicta. I respectfully agree with the majority’s conclusion on this.
In any case, it is my considered opinion that it is not correct to use the “obiter dicta” argument in considering Supreme Court’s opinions on constitutional questions referred to it pursuant to its special jurisdiction under ss.18 and 19 Constitution. More often than not those references, especially under s.19, do not arise from lis inter partes. It suffices, therefore, to refer to the discussions on the constitutional purpose(s) of these two provisions (supra).
It is my intention now to re-produce hereunder pertinent extracts from the majority decision on the question(s) posed in the 1992 Reference. The majority was of the opinion (page 343) that:
it is entirely consistent with the entire thrust and primary purpose of the Leadership Code regime to preserve the public from improper and corrupt conduct of leaders and to hold the leaders accountable through the comprehensive and elaborate mechanism for enforcement “that a person holding a (current) leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and if found guilty, dismissed from his current office”.
After re-stating, with approval, the “entire thrust” and “primary purpose” of the LC, as enunciated in the cases of SCR No. 1 of 1978; Re Leo Robert Morgan [1978] 460 (at page 464) and the Auna Case (supra), the majority opinion was (at page 342):
We accept also that, more specifically, the purpose of the Code is to ensure as far as possible that the leaders specified in Constitution Section 26 do not offend in the various ways prescribed by the provisions of Constitution Section 27, and that these provisions are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place.
And at page 343:
The thrust of the legislation is to diligently investigate and prosecute any person holding current leadership office who is alleged to have committed offences of misconduct, and if, after due inquiry, that person is found guilty and unworthy of continuing in office, then he is liable to be dismissed from office.
Dealing with the question of intention and purpose of the LC, and the court’s interpretation on these, it was held (at page 344) that:
We have no doubt that it would be entirely against the clear intent and purposes of the Leadership Code regime and spirit of the National Goals and Directive Principles to construe the provisions of the Code so as to enable a person who has avoided its provisions by one of these ways, and who immediately or later assumes the same or another leadership office, to remain in that office with immunity from the provisions of the Code for the misconduct in the former office. For instance, if the leader had, in fact, been found guilty of misconduct and recommended to be dismissed from office, but he resigned and avoided the penalty, but subsequently he assumed that office again by whatever process, can it possibly be consistent with the entire thrust of the Leadership Code regime that such a person, who had been found unworthy of continuing in office, be allowed to remain in the same office (or indeed any other leadership office) with immunity and seeming total immunity from accountability to the people he is to serve?
(Underlining mine)
The court was of the opinion that such a proposition was absolutely without merit and overlooked the entire thrust and purpose of the LC. The court asked (page 344):
How can it possibly enhance the preservation of the people from corrupt, unfit leaders if they can be allowed to avoid the sanctions of the Code in one term of office and be immune from the same provisions in the same or another office in a subsequent term of office, immediately, shortly or anytime thereafter?
Asking itself the question as to what the national interest was or sought to be enforced, in the light of the National Goal and Directive Principle No. 3, the majority court enquired (at page 346):
Is it to be the liberty to conduct oneself against all of the interests of the people sought to be preserved under the Leadership Code, and to be enabled by the “law” to avoid accountability for it, and to assume other leadership offices subsequently and remain immune from any accountability?
The court answered (at page 347) that:
The plain unequivocal answer to this must be a categorical No. Any construction that would permit a person to avoid being accountable for his misconduct in a former leadership office, whilst holding the same or new leadership office in a new term, would surely not be in the national interest, in the totality of the Leadership Code regime and the National Goals and Directive Principles of the Constitution.
It is certainly not in the best national interest to suggest that a leader who is being investigated or being prosecuted or has been found guilty of misconduct and recommended to be dismissed should be encouraged to resign and avoid being made accountable. It is even more outrageous to suggest that, having so avoided accountability and the sanctions of the Leadership Code in the leadership office he formerly held, such a person could assume another term in the same leadership office or, indeed, a completely different office with the same obligations towards the people he is to serve and still be immuned from accountability for his misconduct in the former office.
(Underlining mine)
The second ground of challenge to the jurisdiction of the Tribunal argues that the 1992 Reference, the majority decision, was in breach of s.100(3) Constitution and in violation of the doctrine of separation of powers. The applicant relies here upon the dissenting opinion of the learned Deputy Chief Justice in the 1992 Reference. Section 100 Constitution has to be set out in its entirety hereunder:
100. Exercise of the legislative power.
(1) Subject to this Constitution, the legislative power of the People is vested in the National Parliament.
(2) Sub-section (1) does not prevent a law from conferring on an authority other than the Parliament legislative powers or functions (including, if the law so provides, a further power or further powers of delegation and sub-delegation).
(3) Nothing in any Constitutional Law enables or may enable the Parliament to transfer permanently, or divest itself of, legislative power.
My discussions (supra) in respect of the purposes of ss.18 and 19 Constitution make it unnecessary for further discussion here. Suffice it is to note that unlike, for instance, the situation in the United Kingdom, where the “supremacy of Parliament” is a well-recognised centuries-old doctrine of parliamentary democracy, under our constitutional scheme the National Parliament does not enjoy unfettered legislative powers. Nor does it enjoy exclusive legislative functions. In PNG, only the Constitution is supreme. All institutions and offices, and officials, are subject to the Constitution. And, needless to say, these include the National Parliament, the NEC and the National Judicial System.
Statutory Interpretation: General
In support of the applicant’s contention as to the invalidity of the 1992 Reference, and finding comfort and support from the approach adopted by the learned Deputy Chief Justice in his dissenting judgment on the proper interpretation of the provisions in question, it has been suggested that the ultimate sanction of “dismissal” under the LC (s.27(5)(a)) and s.28(1)(g) Constitution must refer only to dismissal from an office from which the allegation(s) of misconduct arose. In other words, a “former” office under the particular circumstances of this applicant. Thus, it is argued, the Tribunal could not recommend dismissal from the “current” office, the occupation of which has not been the subject of the misconduct allegation.
This suggestion makes nonsense of the stated intention and purposes of the LC as repeatedly acknowledged by several Supreme Courts since 1978 (Re Leo Robert Morgan, supra). There are a number of provisions in the Constitution which allow the courts to have regard to certain constitutionally stated criteria in interpretation of the laws, and it would seem that these would be sufficient to allow the courts to exercise some discretion in interpreting the laws not in accordance with the “strict and complete legalism” that one has come to expect of, for instance, the High Court of Australia, but rather with the flexibility appropriate to the circumstances of a developing country whose political nature and direction are as yet inchoate (to respectfully borrow from Professor John Goldring in his useful text: The Constitution of Papua New Guinea, LBC., 1978, pages 129-130).
Among these provisions are: s22, requiring enforcement of the Constitution by the courts in the light of the National Goals and Directive Principles; s.25 (Implementation of the National Goals and Directive Principles) which, although making the National Goals and Directive Principles non-justiciable, require by sub-section (3): “where any law, or any power conferred by any law... can reasonably be understood, applied and exercised or enforced without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way”.
Section 109(4) is a general exhortation to depart from the approach of “strict and complete legalism”. Schedule 2.3(1) requires the courts, in the absence of a rule of customary or English common law, which is applicable and appropriate to the circumstances of the country, to formulate a rule which has regard “in particular to the National Goals and Directive Principles and the Basic Social Obligations”. Schedule 2.4 also deals with the development of the “underlying law”.
As Professor Goldring asserts (supra, page 131), and I respectfully adopt here, the provisions of Schedule 2.3(1)(a), in particular, would appear to give ample scope for judicial creativity where the law is an adopted enactment, for the courts could find that the rule contained in it was inappropriate to the circumstances of the country and formulate a law that was.
The different approaches to statutory interpretation can be briefly summarised under three main headings:
(a) The Literal Approach: This approach, as the words suggest, assumes that the meaning and intention of the legislature have been expressed effectively by the actual words used in the instrument to be interpreted, and that the court need do no more than to give effect to those words.
(b) The Golden Rule: For the construing of a statute means to take the plain meaning of the words used and to adhere to that meaning unless it is at variance with the legislature’s intention discovered from reading the statute as a whole or unless that plain meaning leads to a manifest absurdity or repugnancy.
In this respect it is said that statutes ought not to be construed so as to produce injustices or absurdities or inconsistencies.
(c) The Mischief Rule: Words and phrases in a statute, though not perhaps strictly ambiguous in themselves, are vague or uncertain. In such cases the courts will look to the overall intention of the legislature as discovered from reading the statute as a whole. They will ask: what mischief was it intended that this statute was intended to remedy, perhaps what social purpose was intended to be achieved by this legislation?
In the English case of Attorney-General for Canada v Hallett & Carey Ltd. [1952] AC 422, at 449, Lord Reid said:
There are many so-called rules of construction that courts of law have resorted to in their interpretation of statutes but the paramount rule remains that every statute is to be expounded according to its manifest and expressed intention.
(Underlining mine)
And Evershed MR; in Prince Ernest of Hanover v Attorney-General [1956] Ch.188, at p.201 has said:
As is stated in the first sentence of Maxwell on the Interpretation of Statutes... the fundamental rule of interpretation to which all others are subordinate, is that a statute is to be expounded ‘according to the intent of them that made it’.
The much earlier case of Reigate RDC v Sutton District Water Co. (1908) 99 LT. 168, at p.170 contains the following statement of Channell J:
It is always necessary in construing a statute and in dealing with the words you find in it to consider the object with which the statute was passed; it enables one to understand the meaning of the words introduced into the enactment.
(Underling mine)
The foregoing cases are extracted from Walker and Walker (supra, 174-180).
But what this court and other Supreme Courts (in PNG) are asked to consider, in exercising powers pursuant to ss.18 and 19 Constitution, are not ordinary legislation. These are provisions contained in Constitutional Laws. In the 1908 Australian case of A-G (NSW) v Brewery Employees’ Union [1908] HCA 94; (1908) 6 CLR 469, Higgins J said this (on page 611):
...although we are to interpret the words of the Constitution on the same principles of interpretation as we apply to any ordinary law, these very principles of interpretation compel us to take into account the nature and scope of the Act that we are interpreting; to remember that it is a Constitution, a mechanism under which laws are to be made, and not a mere Act which declares what the law is to be.
(Underlining mine)
Constitutional Interpretation
The statement of Higgins J (supra) has been re-emphasised in two later Australian cases. In Reg v Public Vehicles Appeals Licensing Tribunal (Tas) [1964] HCA 15; (1964) 113 CLR 207, the whole High Court said this (at p.225):
We must remember that it is a Constitution we are construing and it should be construed with all the generality which the words used admit.
In Western Australia v Chamberlain Industries Pty Ltd [1910] HCA 64; (1970) 12 CLR 1, at pp.26-27, Windeyer J made the following remarks:
The Commonwealth Constitution is not merely an instrument for the government of a federation. It is the birth certificate of a nation. It embodies in legal form the sentiments of a people behind the idea of ‘a nation for a continent and a continent for a nation’. On the enactment of the Constitution by the Imperial Parliament the Australian colonies became a Dominion under the Crown, Australia, now in its own right a nation among the nations. Australians became one people. These I think are things to be remembered, because in interpreting the Constitution we are not required to ignore the purpose manifestly behind particular provisions...
(Underlining mine)
I would respectfully adopt their Honours’ statements.
So it has been said in the US that a Constitution is not to be interpreted on narrow or technical principles, but liberally to accomplish the objects for which it exists: Black: American Constitutional Law.
In a review of constitutional cases decided by the Supreme Court from 1975 - 1980, Peter Bayne identifies two different approaches to interpretation of the Constitution which he calls the purposive mode and the non-purposive mode: see his The Constitution in the Courts, 1975-1980 (Paper presented to the General Constitutional Commission, Workshop, Feb. 1981, p.7). The former approach has the purpose of seeking the results which reflect the philosophy in the National Goals, and, where interpretation of the Constitution is concerned, which reflect the CPC’s recommendation (except to the extent that these were identified by the Constitution).
The learned author identifies four main elements of the purposive mode. He states:
In the first place, autochthony - cutting the legal tie - should render irrelevant any pre-Independence statute law that had not been adopted, and allows the courts to take a close look at the English common law or outside decisions. Secondly, section 24 enables reference to the CPC Report and the Constituent Assembly proceedings to resolve ambiguities or to give content to general expressions in the Constitution. Thirdly, the Preamble in general and the National Goals in particular provide statements of social goals and values which are relevant in any case before the courts. Finally, English common law or outside decisions would not be received as part of the underlying law for the purposes of interpretation except after a strict application of the test of applicability; a strict view in constitutional cases could be based on a recognition that the CPC was concerned that interpretation of the Constitution should be faithful to the principles inherent in it, and also from an awareness that it is more difficult for the Parliament to change the effect of a rule of constitutional interpretation of the underlying law than other rules of underlying law.
Most of these elements were recognized by Kearney J (as he then was) in his judgment in Ex parte Moses Sasakila [1976] PNGLR 491, 506-7:
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.
This was the first occasion on which a Supreme Court Justice had referred to the CPC’s views, and it is significant that Kearney J accorded primacy to the purposive provisions governing interpretation. His Honour relied on three other purposive provisions (sections 60 and 155(4) and Schedule s.4) to find that in PNG the scope of certiorari was enlarged
beyond that which it has had 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, (ibid, 505).
Conclusion
In the circumstances before us here, I respectfully agree with and adopt the interpretation employed in both the Auna Case and the 1992 Reference (unanimous and 4-1 majority decisions respectively). The purposive approach was, with respect, the correct approach, to ascertain the intention behind the enactment of s.26 Constitution vis-a-vis the enforcement provisions of the LC and the Constitution, in the face of deliberate manoeuvres by certain leaders to avoid the scrutiny of the LC and escape the sanctions. In this respect, it has to be acknowledged that the “mischief” the LC was envisaged and intended to remedy was the exercise of state powers, and the enjoyment of rights and privileges attached thereto, by unworthy, unprincipled and corrupt leaders to the detriment of the people and the nation.
It was not in the contemplation of the “Founding Fathers” that leaders would take deliberate concious actions to avoid scrutiny and accountability. However, the concepts of “reform” and “rehabilitation” were recognised so that disqualification upon dismissal from office was for the limited period of 3 years (s.31 Constitution) rather than a life-long ban from holding any public office.
The dismissal from “office” cannot, in my considered and respectful view, be the subject of what may colloquially be termed “legal gymnastics” to suggest only the “former” office was envisaged. To interpret in the way the applicant urges here to enable the result sought here would be, in my view, contrary to the intention of the LC; which no doubt would create moral and legal outrage. The dismissal from office the LC and the Constitution sanctioned must mean the “Leadership” office. It would not be incongruous, in my respectful view, that a person in the applicant’s situation could be suspended and dismissed from a “current” leadership office or position for misconduct in a “former” office or position. The public office or position which the Constitution and the LC are concerned with is any of those “Leadership” offices or positions enumerated under s.26(1) Constitution.
In the end result it is my opinion that the Tribunal did not lack jurisdiction in the investigation and determination of the allegations against Mr Dusava. Nor did, in my view, the Tribunal act in excess of jurisdiction in this respect.
The majority opinion in the 1992 Reference was and is good law. I see, therefore, no justification for this Court to overrule that decision. Schedule 2.9(1) Constitution reads as follows:
(1) All decisions of law by the Supreme Court are binding on all other courts, but not on itself.
In the Supreme Court case of The Public Prosecutor v John Aia of Mondo and Anor. [1978] PNGLR 224, Wilson J said (at p.232)
I realise that the Supreme Court is not bound by earlier decisions of the Supreme Court (see Sch. 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of the Supreme Court should only be over-ruled after great caution and in a clear case.
I have respectfully heeded His Honour’s sensible advice here. And I have read exhaustively all the three previous cases on the pertinent issues raised here. The last two, under direct challenge here, discussed and considered the issues exhaustively. The cases were decided in the following manner:
Leo Robert Morgan - Unanimous (3)
Joseph Auna - Unanimous (5)
1992 Reference - 4 to 1 majority
I see no good reason, no justification, to depart from the principles enunciated in the 1992 Reference.
I would, therefore, refuse the application with costs and confirm the determination of the Tribunal as being the direct result of a proper and legitimate exercise of jurisdiction under the Constitution and the LC, based on law properly and correctly interpreted and applied.
SEVUA, J: I have read the judgment of Sakora, J and I agree with him. I only wish to add a few things of my own to emphasise what I consider to be pertinent in this application.
The consideration and the view I have taken on this matter are based on the purposive approach. The purpose of the Leadership Code is to protect the people of Papua New Guinea. The Supreme Court said in, Supreme Court Reference No 1 of 1978 In Re Leo Morgan [1978] PNGLR 460 at 464:
“A leader has a duty not to place himself in a position in which he could have a conflict of interests or might be compromised when discharging his public official or personal integrity to be called into question, not to endanger or diminish respect for and confidence in the integrity of government and not to use his office for personal gain. And in this connection, we consider that the Constitution, in so far as it seeks to preserve the people of Papua New Guinea from misconduct by its leaders should not be considered as a penal statute. In requiring a higher standard of behaviour from its leaders from ordinary citizens, it should not be considered as "penalising" or "punishing” a leader, but as ensuring in the interests of the safety of the people that only persons who are prepared to accept added restrictions on their personal behaviour should become leaders."
In Supreme Court Reference No. 5 of 1980 In Re Joseph Auna [1980] PNGLR 500, the Supreme Court said at 504:
“We are of the opinion that the Leadership Code is directed to persons actually holding an office as specified in s.26 of the Constitution; and that, as the Tribunal put it in this case, “the entire thrust of the legislation is directed towards removing a person who is considered, after due inquiry, to be unworthy of continuing in office.” All the provisions of the Constitution and the Organic Law are consistent with, and support, that conclusion. Once the primary purpose of the legislation is clear, it is not anomalous that a person, having ceased to hold any of the designated offices, becomes immune from proceedings under the Leadership Code in respect of any alleged misconduct in office, during the time he held office. The purpose is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged misconduct in leadership office which he formerly held; and, if found guilty, dismissed from his current office.” (my underlining)
And the Court continued at 505:
“..........It is clear from the view we take that if any such leader assumed another leadership office, any proved misconduct in his earlier office could result in his being dismissed from his later leadership office.” (my underlining)
With respect, I do not see how the purpose of the Leadership Code could have any effect and meaningful application if a leader resigns from an office to avoid prosecution and possible dismissal, but is subsequently elected to another office (as in the present case) and escapes the ultimate consequence of misconduct in his former office.
Whilst I accept the factual circumstances of this case, that is, that the dismissal of the applicant was in respect of misconduct in his former office, I am of the view, that the Tribunal had jurisdiction to inquire into the charges laid against him by the Public Prosecutor. To say that the applicant should not be prosecuted for misconduct in his former office is simply making a mockery of the Leadership Code. The Leadership Code then becomes meaningless. It is my view, that the Supreme Court has a duty to protect the people of Papua New Guinea from improper conduct by its leaders. It follows therefore that, where a leader escapes prosecution and punishment in respect of misconduct in a former office, and is elected to another office, he must be dismissed for misconduct in that former office, if found guilty.
That is the principle adopted by the majority in Supreme Court Reference No. 2 of 1992 [1992] PNGLR 136, where it was held,
“a person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held, and if found guilty, dismissed from his current office.” (my underlining)
The word “office” is neither defined in Schedule 1.2 Constitution, nor Section 1 Organic Law on the Duties and Responsibilities of Leadership (the Organic Law). References to that word in ss 27, 28 and 29 Constitution and ss 27 and 28 of the Organic Law do not specify whether the word “office” refers to former or current office.
If the Court is not permitted to import into the term “office”, the qualifying word, “former”, it should not, by the same token, be permitted to read into the term “office”, the qualifying word “current”. If the term “office” is considered ambiguous because it is not adequately defined in the Constitution and the Organic Law, a reference to interpret or construct its meaning should have been made to the Supreme Court for its opinion prior to the conclusion of the Tribunal which convicted and dismissed the applicant.
Although the factual circumstances of this case are different to the Supreme Court Reference No. 2 of 1992, in my view, the decision by the majority in that Reference is the correct statement of the law which I would adopt and apply in the present case.
If we were to adopt the minority and dissenting judgment of the learned Deputy Chief Justice in the 1992 Reference, and thus import into the term “office”, the qualifying word “current”, it would still be judicial legislation in the guise of judicial interpretation. Be that as it may, I consider that the Supreme Court has jurisdiction to formulate principles of law through judicial pronouncements by virtue of s.109(4), Schedule 2.3(1) and Schedule 2.4 Constitution. Given that prerogative, I do not consider that we are violating Constitution , s. 100.
It is my humble opinion that the Supreme Court ought not to be seen as an instrument of sanctioning corrupt leadership in this country. Allowing a leader holding a current office to go unprosecuted and unpenalised for his misconduct in a former office is encouraging mischief and improper and corrupt conduct in high places. To the ordinary citizens of Papua New Guinea, this is not a protection or preservation from leaders with questionable reputation.
I reiterate what the majority of the Supreme Court said in the 1992 Reference at p342, following the acceptance of the referrer’s submissions that the entire thrust and the primary purpose of the Code is “to preserve the people of Papua New Guinea from misconduct by its leaders.
“We accept also that, more especially, the purpose of the Code is to ensure as far as possible that the leaders specified in Constitution s.26 do not offend in the various ways prescribed by the provisions of Constitution s.27, and that these provisions are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place.” (my underlining)
The Court continued at pp 344 – 345:
“We have no doubt that it would be entirely against the clear intent and purposes of the Leadership Code regime and the spirit of the National Goals and Directive Principles to construe the provisions of the Code so as to enable a person who has avoided its provisions by one of these ways, and who immediately or later assumes the same or another leadership office, to remain in that office with immunity from the provisions of the Code for the misconduct in the former office.
“For instance, if the leader had, in fact, been found guilty of misconduct and recommended to be dismissed from office, but he resigned and avoided the penalty, but subsequently he assumed that office again by whatever process, can it possibly be consistent with the entire thrust of the Leadership Code regime that such a person, who had been found unworthy of continuing in office, be allowed to remain
in the same office (or indeed any other leadership office) with immunity and seeming total impunity from accountability to the people he is to serve?”
“Such a proposition is absolutely without merit and overlooks the entire thrust and purposes of the Leadership Code. How can it possibly enhance the preservation of the people from corrupt, unfit leaders if they can be allowed to avoid the sanctions of the Code in one term of office and be immune from the same provisions in the same or another office in a subsequent term of office, immediately, shortly or anytime thereafter?” (my underlining)
“One of the main sanctions of the Leadership Code is to prevent continuance in office of unworthy people; and thus it is that a person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held and, if found guilty, dismissed from his current office.”
Whilst the facts of the present case are different to the three References referred to, the principles enunciated by the different benches of the Supreme Court in those cases are, to my mind, very good and sound principles of law. I see no reason at all to depart from them or to pronounce them as bad principles of law in the present case.
Since the entire thrust and purposes of the Leadership Code is to perserve the people of Papua New Guinea from corrupt and unfit leaders, it would, in my view, be a fundamental error of law if this Court is to conclude that the applicant in the present case, is immuned from prosecution for misconduct in his former leadership office as Secretary for Foreign Affairs.
It is my view that this Court needs to place itself in the shoes of the ordinary citizens and ask, is it right or appropriate for a leader, who has resigned from a leadership office, to avoid prosecution and possible penalisation to then, assume a new leadership office and be immuned from prosecution under the provisions of the Leadership Code? With respect, I consider that this is not right. In reality, we would be permitting this country to be ruled by corrupt and unfit leaders that, politically, the country becomes a banana republic, and in my view, this is quite ridiculous. It is not what the Leadership Code regime intended.
The whole scenario reminds me of what the English historian and moralist, First Baron Acton, said in a letter to Bishop Mandell Creighton in 1887: “Power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men........ There is no worse heresy then that the office sanctifies the holder of it.” If we were to allow the applicant’s arguments and let him go unprosecuted and unpenalised, we would be permitting the worse heresy that the English historian and moralist has adverted to in that letter.
I would therefore uphold the findings and decisions of the Tribunal, which I consider, had jurisdiction, and order that the applicant’s review be dismissed with costs.
Decision of the Court
Application dismissed with costs.
Lawyer for the Applicant : Maladinas Lawyers
Lawyer for the Respondent : Solicitor General.
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