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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE
SCA. NO. 7 OF 2010
BETWEEN:
HON. PATRICK PRUAITCH, MP
Appellant
AND:
CHRONOX MANEK, JOHN NERO AND PHOEBE SANGETARI, (Comprising the Ombudsman Commission)
First Respondents
AND:
JIM WALA TAMATE, THE ACTING PUBLIC PROSECUTOR
Second Respondent
AND:
HON. DEPUTY CHIEF JUSTICE GIBBS SALIKA, SENIOR MAGISTRATES PETER TOLIKEN AND NERRIE ELIAKIM, (Comprising the Leadership Tribunal)
Third Respondents
AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Respondent
Waigani: Kirriwom J, Gavara-Nanu and Davani J J
2010: 31st March and 31st May
APPEALS – PRACTICE & PROCEDURE – Application for leave to appeal on a question of fact – Whether leave should be granted – Arguable case test – Appellant failing to satisfy arguable case test – Leave refused.
CONSTITUTIONAL LAW –Meaning and effect of a referral by the Ombudsman Commission to the Public Prosecutor– Organic Law on Duties and Responsibilities of Leadership (OLDRL) s.27 (1) (a) and Constitution s. 29 (1)- A referral by the Public Prosecutor to an appropriate tribunal – OLDRL s. 27 (2) – Meaning and effect of a referral by the Public Prosecutor discussed.
CONSTITUTIONAL LAW – Ombudsman Commission has no power over a referral made by the Public Prosecutor in the exercise of the powers given to him under the Constitution s. 177(1) – Public Prosecutor’s decision to either refer or not to refer a matter to an appropriate tribunal which is made pursuant to Constitution s. 177 (1,) is made independently of the Ombudsman Commission.
CONSTITUTIONAL LAW –A referral by the Public Prosecutor to an appropriate tribunal – Public Prosecutor’s request to the Chief Justice to appoint an appropriate tribunal to inquire into the matter – Meaning and effect of a "matter" discussed - Appointment of a tribunal by the Chief Justice made pursuant to OLDRL s. 27(7) by an instrument of appointment signed by the Chief Justice – A tribunal has jurisdiction over a matter upon its appointment by the Chief Justice.
CONSTITUTIONAL LAW - Effect and meaning of s. 28 (1) of the OLDRL - A leader who is referred to an appropriate tribunal is automatically suspended from duty with full pay effective from the day the tribunal is appointed by the Chief Justice.
Cases cited:
Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307
Brian John Lewis v Independent State of Papua New Guinea [1980] PNGLR 219
Gary McHardy v Protect Security and Communications Ltd trading as Protect Security [2000] PNGLR 279
Ila Geno v. Independent State of Papua New Guinea [1993] PNGLR 22
Opai Kunangel v The State [1985] PNGLR 144
Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329
Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
Sausau v. Kumugal and PNG Habours Board (2006) N3253
SCR No. 2of 1982; Re Kunangel [1991] PNGLR 1
SCR No. 2 of 1992; Re The Leadership Code [1992] PNGLR 336
SCR No. 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151
Sir Julius Chan v. the Ombudsman Commission of Papua New Guinea [1999] PNGLR 240
Timothy Patrick & Others v. Pepi Kimas & Others N3913
Zachery Gelu v. Sir Michael Somare MP (2008) N3524
Overseas cases cited
Antaios Campania Naviera S.A v. Salen Rederierna A.B [1985] AC 191
House v The King [1936] 55 CLR 499
Pioneer Shipping Ltd v. B.T.B Trioxide Ltd [1982] AC 724
Richard West and Partners (Inverness), Ltd and Another v Dick [1969] 1 All E.R 289
Counsel
M. Cooke QC with F Griffin, for the Appellant
V. Narokobi, for the First Respondent
N. Miviri, for the Second respondent
T. Tanuvasa, for the Third and Fourth Respondents
31 May, 2010
1. BY THE COURT: The appellant is appealing against the decision of Kariko J delivered on 12 February 2010 in proceedings OS No. 34 of 2010 where His Honour refused the Appellant’s motion seeking inter alia interim injunctive relief and stay orders to prohibit his Referral by the Ombudsman Commission being acted upon any further. Aggrieved by this decision the appellant appealed to this court raising grounds based on questions of law, mixed fact and law (which does not concern us in this hearing) and one ground on a question of facts alone which we have to decide on.
3. Upon lodging his appeal, the appellant also sought and obtained an ex parte stay orders before Sevua J, effectively staying the National Court decision of 12 February 2010, thereby restraining the Leadership Tribunal from convening its hearing. In doing so, His Honour directed for the issue of stay to be addressed before the full three-men bench for its determination; hence this issue coming before us to be considered afresh.
4. This Court is specially constituted to deal with two matters arising out of that appeal, namely, leave to appeal on question of facts alone and the question of stay. At the hearing of these two matters, a pertinent point of law often running parallel with Referral of a leader to a Leadership Tribunal, which is the question of suspension of the leader once the Leadership Tribunal is appointed, was raised by the Court with counsel. The parties were given ample time to prepare on all three legal issues and heard submissions.
5. The substantive grounds of appeal based on law and questions of mixed facts and law are not before us and as such our decision is confined only to those three issues we alluded to above.
Background
6. It is helpful to set out a brief background of this appeal. In September, 2006, the Ombudsman Commission wrote to the appellant pursuant to s. 20 (3) of the OLDRL and informed him of his right to be heard on 11 allegations of misconduct in office against him. In October, 2006, the appellant appeared in person before the Commission and verbally gave his responses to the 11 allegations. Towards the end of November, 2006, again in the further exercise of his right to be heard, the appellant made and submitted a detailed written response to all 11 allegations.
8. On 22 July, 2009, the Commission wrote to the appellant and advised him that it had considered his responses to the 11 allegations and had decided to refer 8 of those allegations to the Public Prosecutor for possible prosecution under ss. 20 (4) and 27 (1) (a) of the OLDRL and s. 29 (1) of the Constitution.
9. On 20 August, 2009, the appellant filed proceedings in OS No. 456 of 2009, under Order 16 of the National Court Rules, challenging the referral of the matter of the investigations into the 8 allegations of misconduct in office against him ("the matter") to the Public Prosecutor arguing that he had been denied the right to be heard on the matter.
10. The application for leave for judicial review in proceedings OS No. 456 of 2009, was heard by Hartshorn J. On 8 September, 2009, His Honour gave his decision in which he refused leave.
11. Subsequently, the Public Prosecutor wrote to the Chief Justice requesting that an appropriate tribunal be appointed to inquire into the matter.
12. It is to be noted that the application for leave for judicial review before Hartshorn J, was made ex parte.
13. In OS No. 456 of 2009, while refusing leave for judicial review Hartshorn J, said the appellant was duly heard by the Ombudsman Commission on all 8 allegations before referring the matter to the Public Prosecutor, thus there was no arguable case warranting a judicial review.
14. Almost five months after Hartshorn J, refused the appellant’s application for leave for judicial review, the appellant, on 4 February, 2010, filed another proceedings in OS 34 of 2010, seeking certain declaratory, preventive, injunctive and stay orders. The proceedings were filed pursuant to ss. 23, 155 (4) and 217 (b) of the Constitution.
15. The case returned before Kariko J, on 10 February, 2010. Critical evidentiary material placed before His Honour for purpose of that motion was the affidavit by Kanawi Pouru which was filed on 9 February, 2010. Mr. Pouru was the incumbent holder of the position of the Managing Director of the Papua New Guinea Forests Authority, when the appellant was the Minister for Forests from 2003 to 2007. In his affidavit, Mr. Pouru deposed to matters relating to debts totaling K20, 000.00 incurred by the appellant as the Minister for Forests and his entitlements. These issues were the subject of investigations by the Ombudsman Commission. In his affidavit, Mr. Pouru annexed the summons issued to him by the Ombudsman Commission requiring him to produce to the Commission information relating to the appellant’s entitlements and debts he incurred during his term as the Minister for Forests. The summons was issued on 22 January, 2008. The other annexure to Mr. Pouru’s affidavit is a letter written by Mr. Pouru to the Ombudsman Commission dated 4 February, 2008, in which Mr. Pouru explained how the debt of K20,000.00 was incurred by the appellant and provided information on the appellant’s entitlements.
16. The appellant’s contention before the National Court was that this evidence from Kanawi Pouru was new evidence constituting fresh investigations by a differently constituted Ombudsman Commission which re-ignitedthe wheel of the right to be heard but he was not accorded of before he was referred to the Public Prosecutor, hence, his referral was legally flawed. How ever this new proceeding was decorated or premised, Kariko, J dismissed this argument on the basis that it was an abuse of process as the matter was already res judicata.
Application for leave to appeal
17. The application for leave to appeal against a finding of fact made by Kariko J, is made pursuant to s. 14 (1) (c) of the Supreme Court Act, Chapter No. 37.
18. In the judgment, His Honour said he was unable to see from an affidavit sworn by Mr. Kanawi Pouru on 9 February, 2010, that there were further or new investigations and allegations made against the appellant by the Ombudsman Commission which required the Ombudsman Commission to hear the appellant before referring the matter to the Public Prosecutor under s. 27 (1) (a) of the Organic Law on Duties and Responsibilities of Leadership ("OLDRL") and s. 29 (1) of the Constitution.
19. The full text of the ground for which leave is sought pleads:
"5. GROUNDS
(i) The Learned Judge erred in fact in finding that he was "unable to see from Mr. Pouru’s affidavit that there were further or new investigations and allegations against the Plaintiff", when the Affidavit of Mr. Kanawi Pouru sworn and filed 9 February 2010, inter alia exhibited the Ombudsman Commission’s Summons to Mr. Pouru dated 22 January 2008, which required Mr. Pouru to "give information relating to a matter that is being investigated by the Ombudsman Commission" and further required Mr. Pouru to produce documents and material to the Ombudsman Commission relating to and in the form of:
1. Any or all documents listing names of or forms of entitlements that Mr. Pruaitch received or may have received during his tenure as the Minister for Forests; and
2. State whether or not Mr. Pruaitch was paid less than what he was entitled to since his tenure as the Minister for Forests; and
3. State whether or not Mr. Pruaitch was paid more than what he was entitled to since his tenure as the Minister for Forests; and
4. Any or all documents relating to the letter dated 3 October 2006 enclosing a Cheque for K20,000.00; and
5. Confirm whether the Cheque for K20,000.00 referred to above was for the reimbursement for all or any entitlements which Mr. Pruaitch may have received during his tenure as the Minister for Forests; and
6. List of all or any of the entitlements that Mr. Pruaitch may have reimbursed or took steps to reimburse using the Cheque for K20,000.00; and
7. Advise whether the Cheque for K20,000.00 there was sufficient to settle the over payments?
8. List of all or any of the entitlements that Mr. Pruaitch may have reimbursed or took steps to reimburse after his tenure as the Minister for Forests; and
9. List of all or any of the entitlements that Mr. Pruaitch may have reimbursed or took steps to reimburse after his tenure as the Minister for Forests; and
Advise as to what steps (if any) you took or have taken to correct this anomaly (payment of allowances and entitlements) which Mr. Pruaitch was or was not entitled to."
(ii) Based on the preceding paragraph, the Learned Judge should have found as a fact instead that there were further investigations by the Ombudsman Commission against the Plaintiff after 2006.
20. In his judgement in OS No. 34 of 2010, Kariko J, found that the matters that the summons required from Mr. Pouru were not new because the appellant had already responded to the Ombudsman Commission regarding those same matters, thus the appellant was already given an opportunity to be heard on those matters and was heard. His Honour found that the information sought from Mr. Pouru in the summons was only to confirm the responses the appellant had already given to the Ombudsman Commission.
21. His Honour found that the proceedings before him were in effect judicial review proceedings because they were seeking a review of the decision made by the Ombudsman Commission to refer him to the Public Prosecutor which proceeding had already been heard and determined, thus the proceedings before him were an abuse of process. His Honour said the issues raised before him were same issues which had already been determined by Hartshorn J, in OS No. 456 of 2009. Mr. Sheppard who appeared for the appellant before Kariko J, submitted that because the proceedings arose out of breaches of s. 23 of the Constitution, judicial review was not appropriate. For this contention, Mr. Sheppard placed reliance on Sausau v. Kumugal and PNG Habours Board (2006) N3253, where Injia DCJ (as he then was) said that in cases involving breaches of Constitutional provisions, the plaintiffs should seek declaratory orders as of right. His Honour said common law discretionary procedure of judicial review under Order 16 is inappropriate.
22. This argument was rejected by Kariko J, preferring the view adopted by Cannings J, in Zachery Gelu v. Sir Michael Somare MP (2008) N3524, where his Honour, inter alia, said:
"Some provisions of the Constitution expressly allow the National Court to determine questions of constitutional interpretation and application.
In particular s. 22 (enforcement of the Constitution) 23 (sanctions) and 57 (enforcement of guarantees rights and freedoms). So, why should the National Court shut its door on someone who wants to argue constitutional questions as part of an application for judicial review? Would not we be allowing form to get in the way of substance? Allowing the niceties of procedure to triumph over dispensation of justice?
I reiterate that this issue (is it permissible to plead a breach of Constitution Law as a guard of judicial review) has not been clearly and authoritatively settled by the Supreme Court. Until it is, any uncertainty about the propriety of grounds of review should, in the interest of justice, be resolved by leaving them in, rather them striking them out. The proposed grounds still have to pass through the filtering process provided by the requirement that they be arguable
With respect I also find myself in agreement with the view adopted by Cannings J."
23. The appellant argues that Kariko J. should have found as a matter of fact that there were further investigations done by the Ombudsman Commission against him, when Mr. Pouru was summoned to provide information regarding the entitlements the appellant received and debts he incurred as the Minister for Forests from 2003 to 2007.
24. The appellant further argues that the Ombudsman Commission should have given him an opportunity to be heard on the information provided by Mr. Pouru before deciding whether to refer the matter to the Public Prosecutor. The appellant argues that Kariko J, erred when he found that the materials contained in Mr. Pouru’s affidavit were not new.
25. The criteria for granting leave to appeal is well settled in this jurisdiction. The criteria was stated plainly by the Supreme Court, per Kapi DCJ (as he then was) in Sir Julius Chan v. the Ombudsman Commission of Papua New Guinea [1999] PNGLR 240, at 249 -250 where his Honour said:
"In considering an application for leave to appeal, due consideration must be given to the fact that an appellant has had an opportunity of a hearing and determination by the National Court. That no person who has a right to appeal should abuse the right to appeal by wasting the Court’s time in bringing cases without merit. In my view, the test should not be any different to the application for leave for judicial review where the applicant is required to demonstrate an arguable case only (see Ila Geno & Others v. PNG (supra)."
26. In the earlier part of his judgment at 248-249, his Honour said:
"The purposes for requiring leave in an application for judicial review is explained by Lord Diplock in R v. Inland Revenue Commissioners; Ex parte National Federation of Self-Employed and Small Businesses Ltd [1981] UKHL 2; [1981] 2 WLR 722 at 739".
"Its purpose is to prevent the time of the Court being wasted by busy bodies with misguided or trivial complaints of administrative errors and to remove the uncertainty in which public officers and authorities might be left as to whether they could safely proceed with administrative actions while proceedings for judicial review of it were actually pending even though misconceived"
Lord Scarman said at p. 749:
"The curb represented by the need for an applicant to show, when he seeks leave to apply, that he has such a case is an essential protection against abuse of legal process. It enables the Court to prevent abuse by busy bodies, cranks, and other mischief-makers".
27. This criteria was adopted by the Supreme Court in the earlier case of Ila Geno v. Independent State of Papua New Guinea [1993] PNGLR 22. Two of the earlier cases on the point include Brian John Lewis v Independent State of Papua New Guinea [1980] PNGLR 219 and Alina Sarah Bean v Ian Maxwell Bean [1980] PNGLR 307. In Lewis’s case Miles, J said at pp.234-235:
"In deciding the merits of the case on appeal however one new matter arises and that is the decision of the trial judge himself. That decision, with all findings contained in it, has to be given proper weight. A Supreme Court judge is not free to substitute his own findings of fact unless he has given consideration to the whole of the decision of the National Court judge. In some areas the Supreme Court may properly be more reluctant to differ from the National Court judge. On a question of credit of a witness the trial judge is in a superior position and his assessment is not likely to be rejected. Where the decision is ultimately and largely an individual matter of opinion, for instance in apportioning blame for contributory negligence, or assessing damages for pain and suffering, the trial judge's finding, based on his own opinions, should carry substantial weight. So too where the finding is one of a "primary fact" or "evidentiary fact" rather than an inference from such facts (if the distinction may be drawn), the trial judge's decision should rarely be disturbed."
28. And the following passage from the decision of the High Court of Australia in House v The King [1936] 55 CLR 499 at pp 504 – 520 was cited with approval in Alina Sarah Bean v Ian Maxwell Bean (supra) by Kapi, J (as he then was) at pp.317-318:
"The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred."
29. The requirement to obtain leave is necessary because it screens and filters cases to see whether they have merit to go to a higher court. In Pioneer Shipping Ltd v. B.T.B Trioxide Ltd [1982] AC 724, the House of Lords when considering a question of leave to appeal against a decision of an arbitrator to the High Court under the Arbitration Act, had to consider the intention of Parliament with regard to leave to appeal to the High Court. The House of Lords said the idea of leave was to preserve the finality of the decision of arbitrators, thus, an appeal should be allowed only on leave. This decision was followed in Antaios Campania Naviera S.A v. Salen Rederierna A.B [1985] AC 191. The principle underlying these decisions is that an applicant who is applying for leave has already had a chance of his case being determined by the primary court and the judgement creditor is entitled to the benefit of the judgement. Thus, the requirement for leave is to make sure that the application has merit and that it is not just a busy body wasting the court’s time. An application for leave therefore provides a filtering process designed to prevent cases going to a higher tribunal which have no merit.
30. Applying these principles to the instant case, the question is; has the appellant demonstrated that there is an arguable case which would warrant a grant of leave?
31. In OS No. 456 of 2009, Hartshorn J, refused to grant leave after he found that the appellant had failed to satisfy the arguable case test. The appellant had complained in his application for leave that he was denied the right to be heard by the Ombudsman Commission on the matter. His Honour found that the appellant was duly heard by the Ombudsman Commission before the matter was referred to the Public Prosecutor.
32. We have noted the contents of Mr. Pouru’s affidavit, which is annexed to the affidavit sworn by the appellant on 17 February, 2010. The affidavit annexes Mr. Pouru’s written response to the matters required by the Ombudsman Commission in the summons issued to him. That response is dated 4 February, 2008. The appellant’s affidavit annexes his covering letter to the Ombudsman Commission dated 30 November, 2006, together with a 31 page written response and other documents in support of his responses to the questions put to him by the Ombudsman Commission.
33. From the materials adduced in the affidavits sworn by the appellant and Mr. Pouru, we are not convinced that the matters deposed to in Mr. Pouru’s affidavit constituted new investigations and new allegations against the appellant by the Ombudsman Commission. All the matters that Mr. Pouru deposed to in his affidavit were covered by the appellant’s detailed written responses to the Ombudsman Commission’s queries which were put to him in a form of a letter dated 29 September, 2006. This letter was sent to the appellant when giving him the opportunity to be heard on the allegations, pursuant to s. 20 (3) of the OLDR L, more particularly, the matters Mr. Pouru referred to in his affidavit, including K20, 000.00 owed by the appellant and the entitlements he received as the Minister for Forests. All those matters, including the K20,000.00 owed by the appellant were covered by the questions put to the appellant by the Ombudsman Commission in its letter to the appellant dated 29 September, 2006. The appellant’s responses to those questions were comprehensive and detailed and they covered all the matters deposed to in Mr. Pouru’s affidavit.
34. The trial judge’s ultimate conclusion centred around who he believed and his careful analysis of all the evidence before him. The same facts before one person could mean different thing to another person depending on which side of the equation he leans. And the Supreme Court reminds us of this in Opai Kunangel v The State [1985] PNGLR 144 at p.150 where Pratt, J said:
"They are all matters of a factual nature dealing with questions of credibility and credit-worthiness. His Honour has rejected the evidence of the defence. He has made inferences which were clearly open on the prosecution evidence and he has found that any inference in favour of innocence in respect of these matters is just not supportable. All I can say is, that to draw the inferences suggested by learned counsel for the defence would be to ask the trial judge to engage in an exercise in naivety which would be an insult to the intelligence and experience of any grown man. After all, we are tribunals of fact when we sit in the National Court and we do occupy the same place as juries, with the added requirement of handing down reasons. We must therefore apply our minds to the facts and draw inferences on those facts which are open to reasonable men. A hypothesis consistent with innocence to be of assistance to an accused must be a reasonable one on the evidence before the court. I cannot see any basis for interfering with the findings of facts by the learned trial judge."
35. The trial judge was in our view correct in reaching the conclusion that the appellant’s fresh or new proceedings under section 23 and section 155(4) of the Constitution was nothing more than rehashing the same argument he raised in the judicial review proceeding which he lost and did not appeal but instead allowed the appeal period to lapse and in its stead, instituted another set of proceeding which his Honour found was an abuse of process. In the circumstances, we find that the appellant has failed to convince us that he has an arguable case on the merits nor has he established to our satisfaction that the trial judge has made an error in his finding.
36. It follows that the appellant has failed to satisfy the necessary requisite for leave, and leave is therefore refused.
Application for stay
34. We deal with this issue of stay quite distinctly from the traditional injunctive relief as sought by the appellant in the court below such as to permanently injunct the Ombudsman Commission from further proceeding with the Referral against him until he has been heard on his case of denial of right to be heard or breach of natural justice. This issue, since the dismissal of the proceeding by Kariko, J, now forms part of the matters that the Supreme Court that is seized of the substantive appeal will ultimately deal with.
35. We examine the issue of stay only in the context of prejudice and balance of convenience since the appeal is still pending on grounds based on questions of law and mixed facts and law. And reference to stay here is not in relation to injuncting or permanently preventing or staying the Ombudsman Commission from continuing with the Referral now in its final motion but only relates to staying the enforcement of the National Court decision because of the appeal. There may not be any difference in the outcome but in our view there is some distinction.
36. We are mindful of what the Supreme Court said in Gary McHardy v Protect Security and Communications Ltd trading as Protect Security [2000] PNGLR 279 at 285 and 286 while reviewing the principles applying in stay applications:
‘Because this Court is the highest court of unlimited jurisdiction in this country, vested with inherent discretionary power to do justice, and because it must necessarily exercise such discretionary power on proper principles justly and reasonably, according to natural justice to all parties before it, it can consider and enunciate what factors and circumstances are to be appropriate or relevant for it to take into account when exercising that discretion. The stipulation by the Court of the kinds of factors and circumstances it may consider taking into account cannot be exhaustive. They must necessarily vary from case to case and from time to time depending on differing circumstances. These, in our view, must only be guidelines to assist both the Court and the parties making application before it. They cannot be exhaustive or hard and fast pre-conditions.
To conclude that the test for a successful application for stay should be whether there are "special" or "exceptional circumstances" or that there is a "good reason" or that it is an "appropriate case" is restrictive. We think what is important to articulate are the factors and circumstances that may be relevant or appropriate in differing cases from time to time.
We distil from these precedent cases the kinds of factors and circumstances that the Court will consider, amongst others, in the exercise of the discretion whether or not to grant a stay order. We start with the principal premise that the judgment creditor is entitled to the benefits of the judgment. The others factors include the following:
apparent error of law or procedure.
37. We are in agreement with the findings of the trial judge in OS No. 34 of 2010, that the issues raised before him were the same issues which were raised before Hartshorn J in OS No. 456 of 2006, and that the issues had already been determined by Hartshorn J. thereby amounting to an abuse of process. On that basis alone we have refused the appellant leave to appeal on the question of fact based on the evidence of Kanawi Pouru and the trial judge’s analysis of that evidence.
38. Be that as it may, given the remaining grounds that await determination, and the nature of judgment that is to be stayed for the purposes of the pending grounds of appeal, based on McHardy’s case, the balance of convenience would also favour the grant of stay until the appeal is heard. Each case must be determined on its factual circumstances and this case is one such case where leave to appeal is refused but the appellant still has remaining grounds to be heard, one or more of which could win his appeal.
39. We therefore order that the interim stay order ordered by Sevua J on 19 February, 2010 remain until the substantive appeal is fully determined.
Effect of s. 28 (1) of OLDRL in regard to suspension of a leader referred to a tribunal under s. 27 of OLDRL
40. The parties were asked by the Court to make submissions on the effect of s. 28 (1) of OLDRL which relates to suspension of a leader who is referred to a leadership tribunal ("the tribunal") under s. 27 of the OLDRL. The question posed by the court reads:
‘What is the meaning and implication of Section 28 of the Organic Law on the Duties and Responsibilities of Leadership when a matter is referred to a Leadership Tribunal under Section 27 relative to the Leader’s continued occupation of office and performance of official functions?’
41. In our view section 28 of the OLDRL runs parallel with section 27 and meant to be read and applied with certainty and purpose to achieve the objective of section 27. We believe that over time since Independence thirty five years ago, interpretation and application of section 28 slipped and took a different meaning and dimension or purpose consistent with the view or submission advanced by Mr Narokobi, Counsel for the Ombudsman Commission and joined also by Mr Cooke for the appellant. We have not been able to identify any point in time either by a statutory enactment or a case authority in which this change occurred. Neither Mr Narokobi nor Mr Cooke have cited us any case law authority in this jurisdiction or elsewhere that favours or supports their approach except defending or supporting the status quo or like the old saying ‘let sleeping dogs lie’.
42. The submission by Mr Miviri on behalf of the Acting Public Prosecutor that suspension of the leader is automatic once the Leadership Tribunal is appointed is not without merit as it reflects the position once observed in the application of this particular section in this jurisdiction. However, over time the tide changed, for better or for worse. This is the question that appropriate administering authorities need to examine it closely. We believe that this section has not come under consideration by the administering authorities since Kunangel. As defender of the Constitution and custodian of the People’s judicial power this Court cannot be complacent and let sleeping dogs lie still, but to alert authorities where possible to avenues available, to give meaning and effect to what the Constitution is saying.
43. Sections 27 and 28 of the OLDRL must be read conjunctively to appreciate the meaning and intention of the legislature when the Ombudsman Commission refers a person for purpose of section 27 of the OLDRL. The sections provide as follows:
PART V.—ENFORCEMENT
27. TRIBUNALS.
(1) If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion—
(a) to the Public Prosecutor; or
(b) to the appropriate tribunal referred to in Subsection (7).
(2) If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7).
(3) Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to refer it to the appropriate tribunal or the Ombudsman Commission is of the opinion that the matter has not been properly referred to the appropriate tribunal, the Commission may refer the matter, together with a statement of its reasons for its opinion, to the appropriate tribunal referred to in Subsection (7).
(4) The tribunal shall make due inquiry into the matter referred to it, with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48), and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.
(5) If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that—
(a) he be dismissed from office or position; or
(b) as permitted by Section 28(1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection—some other penalty provided for by an Act of the Parliament be imposed.
(6) The tribunal shall announce its decision in public, and shall send a copy of the decision to the Speaker, for presentation to the Parliament, and to the National Executive Council and, in the case of a Judge, a Law Officer or the Chief Magistrate, to the Judicial and Legal Services Tribunal.
(7) For the purposes of this section—
"the appropriate authority" means, in relation to a person to whom this Law applies, the authority to whom, in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him should be made;
"the appropriate tribunal" means—
(a) in the case of alleged misconduct in office by the Chief Justice—the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution; or
(b) in the case of alleged misconduct in office by a Judge, a Law Officer or the Chief Magistrate—the tribunal referred to in Section 180 (removal from office of other Judges, etc.) of the Constitution; or
(c) in the case of alleged misconduct in office by any other constitutional office-holder—the tribunal established by Section 3 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders; or
(d) in the case of alleged misconduct in office by the Prime Minister—a tribunal appointed by the Chief Justice, consisting of a Chairman and two other members, all of whom must be—
(i) Judges or former Judges of the National Court; or
(ii) former Judges of the pre-Independence Supreme Court of Papua New Guinea; or
(iii) Judges or former Judges of an equivalent court of a country that has a legal system similar to that of Papua New Guinea;
(e) in any other case—a tribunal consisting of a Judge (who shall be the Chairman) and two senior magistrates appointed by the Chief Justice.
(8) The Judicial and Legal Services Commission shall determine the matters referred to in Paragraph (d)(iii) of the definition "the appropriate tribunal".
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 Subsection (1) is on full pay.
44. Reading both sections conjunctively, although each constitutional law is to be read as a whole, implicit in the meaning of the law is that once a person is referred by the Ombudsman Commission culminating in the appointment of the tribunal, that person is automatically suspended from office. And this seems to be the view that prevailed when the Supreme Court, in the only case that we have been able to find, had to consider the effect of section 28 once already in play against other events such as resignation that impacted on its application and effect. This is SCR No. 2 of 1982; Re Kunangel [1991] PNGLR 1 where Bredmeyer J and Kaputin J., two members of the five-men bench made direct observations on the application and meaning of s. 28 (1) of the OLDRL.
45. The combined effect of their Honours’ observations is that a leader who is referred to a tribunal would be automatically suspended from duty even before the tribunal formally sits to inquire into the allegations of misconduct in office against him. Supposing that is the present prevailing position at law, the appellant would have been automatically suspended from duty on 3 February, 2010, which is the date the Chief Justice appointed the tribunal. The topic is therefore very important and relevant which the Court has a duty to address in the interest of justice as well as of public importance. There are serious legal and constitutional implications.
46. In the instant case a tribunal was appointed by an instrument signed by the Chief Justice dated 3 February, 2010, to inquire into the matter. The tribunal comprises the Chairman, Deputy Chief Justice, Hon. Gibbs Salika and members Principal Magistrate Peter Toliken and Senior Magistrate Nerrie Eliakim.
47. Since its appointment, the tribunal has not convened to inquire into the matter because of the interim stay order obtained ex parte by order of Sevua J, sitting as a single judge of the Supreme Court on 19 February, 2010.
48. The appellant in the meantime continues to perform his duties as the Minister for Finance and Treasury. This is where the question relating to the application of s. 28 (1) of OLDRL arises- should the appellant continue to perform his Ministerial responsibilities, duties and functions when he is the subject of an Ombudsman Commission Referral?.
49. Both Mr. Cooke and Mr. Narakobi argued that the appellant’s suspension can only take place when the actual charges in respect of the 8 allegations together with the Ombudsman Commission’s statement of reasons for its opinion that the appellant is guilty of misconduct in office are physically presented to the tribunal. That can of course only happen if the tribunal is able to convene to inquire into the matter.
50. Mr. Miviri on the other hand argued that the appellant should have been suspended from performing his Ministerial duties on the day the tribunal was appointed by the Chief Justice, i.e. 3 February, 2010.
51. In SCR No. 2 of 1982; Re Kunangel (supra), the main issue for determination by the Court was whether the tribunal had jurisdiction to investigate allegations of misconduct in office against Mr. Kunangel who had subsequent to his suspension from duties under s. 28 (1) of the OLDRL resigned from the Parliament as a Member under s 104 (2)(c) of the Constitution. The issue was referred to the Supreme Court by the tribunal appointed to inquire into the allegations of misconduct in office against Mr. Kunangel under s. 18 of the Constitution.
52. A related issue before the Court was whether Mr. Kunangel could resign from Parliament after he was suspended under s. 28 (1) of the OLDRL. It was argued by the Ombudsman Commission that when Mr. Kunangel was suspended, his right to resign from the Parliament was also suspended therefore the tribunal had no the jurisdiction to investigate the matter. His Honour Kaputin J when addressing this issue said that Mr. Kunangel’s suspension occurred on the date the tribunal was appointed by the Chief Justice. His Honour’s reasons were that the tribunal was seized of the matter on the date it was appointed by the Chief Justice, thus it had the jurisdiction to inquire into the matter and it was on that day that Mr. Kunangel was automatically suspended from duty pursuant to s. 28 (1) of OLDRL. The relevant part of his Honour’s judgement appears at page 12 where his Honour said:
"...It follows therefore that the starting point as to when the tribunal is conferred with jurisdiction is from the date of its establishment which is 10 February, 1982, since it is the instrument of appointment that empowers it with such jurisdiction in the matter. And it is at this point also, by virtue of s. 28 of the Organic Law, that Mr. Kunangel is automatically suspended from office."
53. The effect of his Honour’s judgement is that Mr. Kunangel’s suspension under s. 28 (1) of OLDRL became effective before the tribunal convened to inquire into the matter on 16 March, 1982.
54. His Honour Bredmeyer J, on the other hand said Mr. Kunangel was automatically suspended from duty when the charges relating to the allegations of misconduct against him were delivered to the Chairman of the tribunal on 15 February, 1982 by the Acting Public Prosecutor. His Honour said at page 7:
"Mr. Kunangel was charged with various Leadership Code offences on 15 February, 1982 and he was thereby suspended from duty by operation of s. 28(1) of the Organic Law on Duties and Responsibilities of Leadership (hereinafter called the Organic Law)."
55. In that case, the tribunal was appointed by an instrument signed by the Chief Justice on 10 February, 1982. The Public Prosecutor’s referral containing the charges together with the statement of reasons by the Ombudsman Commission was delivered to the Chairman of the tribunal on 15 February, 1982 by the Acting Public Prosecutor. The tribunal was convened on 16 March, 1982, to inquire into the matter. That was when Mr. Kunangel’s lawyer raised a preliminary issue that because Mr. Kunangel had already tendered his resignation as a Member of Parliament, and that the tribunal had no jurisdiction to inquire into the matter. Prior to his resignation from Parliament he was already on suspension pursuant to s. 28 (1) of the OLDRL. In other words, he was already on suspension from his leadership duties prior to 16 March, 1982, which as noted is when the tribunal convened to inquire into the allegations of misconduct in office against him.
56. Two views emerge from Kunangel’s case. Kaputin J, strongly maintained that Mr. Kunangel was automatically suspended when the tribunal was appointed on 10 February, 1982 whereas the other view by Bredmeyer J, was that Mr. Kunangel was suspended on 15 February, 1982, when the charges and the statement of reasons by the Ombudsman Commission were delivered to the Chairman of the tribunal by the Public Prosecutor. The tribunal did not convene until 16 February 1982. This also raises another question as to the practice that prevailed with respect to the presentation of the charges and statement of reasons at the material time when Kunangel was referred.
57. Whatever the position that existed then, what is obvious from the two competing views of Kaputin and Bredmeyer, JJ is that when the issue of resignation came up for consideration, the tribunal had not yet convened but Kunangel was already under suspension. The only disagreement was whether he was suspended on 10th February 1982 when the Tribunal was appointed or on 15th February, 1982 when the charges were delivered to the Tribunal Chairman by the Public Prosecutor. Be that as it may, greater clarity is required for any meaningful appreciation of this area of the Referral process.
58. This issue of course arises because of the lack of provision under the OLDRL specifying when a leader should be suspended from duty under s. 28 (1) of OLDRL. This dilemma was highlighted by Kapi DCJ (as he then was) who was the President in Kunangel’s case at page 4 of the judgement when his Honour said:
"It appears from the summary of counsel’s arguments before the tribunal, which appears in the ruling of the tribunal that no arguments were raised before the tribunal as to when a reference of a matter to the tribunal is formally constituted under s. 27 of the Organic Law. It is at this point when the matter is referred to the tribunal, that the leader is automatically suspended from duty under s.28 of the Organic Law. I make reference to this issue at this point because both counsel in their submissions disputed the date on which the charges were referred to the tribunal. These disputes arise from a lack of provision under the Organic law and the regulations on the manner of filing and presenting charges before the tribunal. Strictly speaking, the court cannot address itself to this as the issue was not raised before the tribunal and has not been referred to this Court under its reference and I have assumed for the purposes of determining the jurisdiction of the tribunal that the suspension happened before the tendering of the resignation."
59. As we highlighted at the outset of our discussion on this aspect of our judgment, the alarm bells were sounded then by the Deputy Chief Justice Sir Mari Kapi (as he then was) in relation to the inadequacy in the law on the question of suspension under section 28 of OLDRL. We adopt the view expressed by Kaputin J as stating the correct interpretation of section 28 and must therefore be regarded as judicial dictum, because his Honour considered and discussed the law and gave his reasons for the view he held; see; Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329 per Wilson J at 387 and 388; Timothy Patrick & Others v. Pepi Kimas & Others N3913 and Richard West and Partners (Inverness), Ltd and Another v Dick [1969] 1 All E.R 289 per Megarry J., at 292.
60. Further to what we have expressed above, given that the OLDRL is silent on when suspension under s. 28(1) of the OLDRL should take effect, the issue should in our view be addressed by taking a purposive approach. We do this by examining the Constitutional Planning Committee’s ("the CPC") recommendations on the OLDRL provided in Chapter 3 of the CPC Report, relating to the Leadership Code at paragraph 35 under the heading –"Supervision and enforcement of the Code", which inter alia, states:
35. "We intend the Leadership Code to be more than mere directives. It should be morally and legally binding on "leaders" and firmly enforced".
61. In our opinion, s. 27 (1), (2) and (3) of the OLDRL under which a leader is referred for prosecution is the embodiment of the amplified application of the above paragraph of the CPC Report.
62. The referral of the matter to the Public Prosecutor by the Ombudsman Commission under s. 27 (1) is made after the Ombudsman Commission is satisfied that the leader is guilty of misconduct in office. A "matter" that is referred to the Public Prosecutor for prosecution under this Subsection is the matter that the Ombudsman Commission has been investigating regarding the alleged misconduct in office by the leader, for which the Ombudsman Commission has found or is satisfied that the leader is guilty.
63. Section 27 (1), (2) and (3) are to be read subject to s. 29 of the Constitution. Section 29 of the Constitution provides as follows:
29. Prosecution of misconduct in office.
(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).
(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead.
64. Section 28 (1)(f) of the Constitution provides as follows:
28. Further provisions.
(1) For the purposes of this Division, an Organic Law—
(f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose;
65. A referral of a matter by the Ombudsman Commission to the Public Prosecutor under s. 27(1) of OLDRL includes the statement of its reasons for its opinion that the leader is guilty of misconduct in office. This requirement is to comply with the requirement under s. 29 (1) of the Constitution that the matter be referred to the Public Prosecutor for prosecution. This requirement accords with s. 177 (1) of the Constitution which grants power to the Public Prosecutor to control the exercise and performance of the prosecution function before the Supreme Court and the National Court and other Courts as provided by or under Acts of Parliament and to bring or to decline to bring proceedings under Division III.2 (Leadership Code) for misconduct in office; see Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal SC 1011.
66. The plain reading of s. 29 (1) of the Constitution makes it clear that the referral of a matter to the Public Prosecutor by the Ombudsman Commission is only for purposes of allowing the Public Prosecutor to decide in the exercise of his powers and function whether the matter should be proceeded with (prosecuted) or not. Section 27 (3) of OLDRL provides that in the event that the Public Prosecutor failed to refer the matter to the appropriate tribunal or the Ombudsman Commission is of the opinion that the matter had not been properly referred to the appropriate tribunal, the Ombudsman Commission may refer the matter to the appropriate tribunal. This Subsection is to be read subject to s. 29 (2) of the Constitution, which provides that if the Public Prosecutor failed to prosecute the matter within a reasonable period, the Ombudsman Commission may prosecute the matter in his stead.
67. The power given to the Ombudsman Commission to refer and prosecute a matter before a tribunal under s. 27 (3) and s. 29 (2) is a special power, because once a matter is referred to him under section 27(1)(a) of the OLDRL, it is the duty of the Public Prosecutor to study it carefully and once satisfied he must refer the matter to the appropriate tribunal and prosecute the matter.
68. Where the Public Prosecutor has considered the matter and has decided that the matter should be proceeded with or that he has decided to prosecute the matter before an appropriate tribunal, the Public Prosecutor then has to refer the matter together with the statement of reasons by the Ombudsman Commission to an appropriate tribunal pursuant to s. 27 (2) of OLDRL. However, the manner in which the matter is to be referred to a tribunal is also not prescribed under the OLDRL, but the practice is that the Public Prosecutor writes to the Chief Justice requesting the Chief Justice to appoint a tribunal under s. 27 (e) of the OLDRL to inquire into the matter.
69. Upon such request by the Public Prosecutor, the Chief Justice then appoints a tribunal as a matter of course. In other words, the Chief Justice has no discretion, he only proceeds to appoint. Once a tribunal is appointed, the Chief Justice then informs the Public Prosecutor of the appointment of the tribunal. From this point onwards, the tribunal is seized of the matter and the tribunal assumes jurisdiction over the matter so it is then up to the tribunal to decide when to commence its inquiries into the matter. This may involve conducting pre-trial conferences and setting the date for hearing and so on.
70. It is to be noted that the tribunal appointed under s. 27(e) of the Constitution is independent in the exercise of its powers and functions when inquiring into the matter. This is made plain by s. 28 (1) (g) of the Constitution .
71. It should also be noted that the decision by the Public Prosecutor to refer the matter to an appropriate tribunal is independently made. The Ombudsman has no power to intervene in the referral process by the Public Prosecutor including prosecution of the matter before the tribunal. The Ombudsman Commission can only become involved in the matter if the Public Prosecutor declines to refer the matter or if the Ombudsman Commission considers that the Public Prosecutor has not properly referred the matter to a tribunal under s. 27 (3) of the OLDRL and s. 29 (2) of the Constitution.
72. So the question still is when does the Public Prosecutor refer the matter under s. 27 (2) of the OLDRL for purposes of s. 28 (1) of the OLDRL?
73. In answering these questions one needs to consider and take into account the scheme of the OLDRL and the relevant constitutional provisions.
74. A couple of pertinent matters regarding the instant case should be noted. According to paragraph 17 of the appellant’s affidavit, he and his lawyers were informed by the Associate to the Deputy Chief Justice who is the Chairman of the tribunal that the originally scheduled date of 12 February, 2010 for the tribunal to start inquiring into the matter was rescheduled to 23 February, 2010. That affidavit was relied upon by the appellant for his application for a stay.
75. In paragraphs 18 and 19 of the same affidavit, the appellant said:
"18. If the respondents are not restrained from escalating and actioning the current Ombudsman Commission’s referral, the proceeding to hear the allegations against me, I fear that the Leadership Tribunal will proceed to hear such allegations which will prejudice my rights in the present Appeal and OS No. 34 of 2010, that challenges and questions the current Ombudsman Commission’s referral to the Public Prosecutor ( which the Leadership Tribunal is expected to consider).
19. Furthermore, I believe that if the Leadership Tribunal is not restrained from inquiring into the matters referred to by the Public Prosecutor, that considerable time and costs will be wasted by the Respondents, if it is subsequently found by the Honourable Court that the purported procedure undertaken by the current Ombudsman Commission, i.e. inter alia by its letter to me dated 22 July 2009, was unconstitutional and void ab initio."
76. Honourable Justice Sevua, when granting the interim stay on 19 February, 2010 gave a brief ruling. Following parts of the ruling are pertinent to this issue:
"...In early 2010, the second respondent referred the matter to the Chief Justice to appoint a Leadership Tribunal to inquire into the allegations of misconduct against him.
Following the referral by the Public Prosecutor, the Chief Justice appointed a Leadership Tribunal comprising of the third respondent herein.
The appellant has been informed that the Leadership Tribunal will convene on Tuesday, 23 February, 2010, hence it is his counsel’s submission that this application is urgent."
77. We have said that in deciding this issue the Court has to take a purposive approach because of a lack of provision in the OLDRL specifying when the referral by the Public Prosecutor of a matter to a tribunal should take effect for purposes of determining the suspension of a leader under s. 28 (1) of the OLDRL.
78. In Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (supra), the Supreme Court at page 19 of its judgement said:
"The principles of constitutional interpretation are well settled in this jurisdiction. In discharging its functions of interpreting constitutional laws, the Court must give paramount consideration to the dispensation of justice: Constitution, s. 168 (2). In seeking to do justice, it must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislatures intention, spirit and purpose expressed in the provision is achieved. The Court must adopt an expansive and purposive approach rather than a narrow and restrictive (sic): PLAIR No.1 of 1980 [1980] PNGLR 326, SCR No. 2of 1992 Special Reference by the Public Prosecutor [1992] PNGLR 336, SCR No. 3 of 1986 Reference by Simbu Provincial Executive [1987] PNGLR 151, Chris Haiveta v. Paias Wingti (No. 3 [1994] PNGLR 192. As Lord Denning who is known in the common law jurisdictions as one of the architects of the purposive approach in Notham v. Barnet Council [1978] 1 WLR 220 at 228 said:
"In all cases now in the interpretation of statutes we adopt such construction as will promote the general legislative purpose underlying the provision. It is no longer necessary for 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 the Parliament would have done, had they had the situation in mind." (adopted by Wilson J in PLR No. 1 of 1980 [1980] PNGLR 326).
Where there is a gap in the constitutional law which would involve consideration of matters of public policy to fill, the Court must defer (sic) to the legislature to fill the gap: SCR No. 5 of 1980 Re Joseph Auna [1980] PNGLR 500. However, there are those types of cases in which the law is not so clear but the Court may be required to give an interpretation in order to resolve the matter before it. If upon the fair and liberal construction of the constitutional provision, the intention of the Parliament can be given effect to, without usurping the Parliament‘s legislative function, the Court must not sign (sic) away from the task because the Parliament can always by subsequent legislative act, correct it if the Parliament feels the Court has usurped its function. In a case where there are a number of possible interpretations (sic) open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations."
79. In SCR No. 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151, Barnett J at 174 echoed these sentiments:
"When interpreting the details of a provision in a constitutional law therefore it is an essential prerequisite for the judicial mind to be enlightened by the spirit of the Constitution itself. This enlightenment comes from 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 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.
As was pointed out by Kidu CJ and Pratt J, this of course does not mean the complete abandonment of the normal common law principles of statutory interpretation. Those principles still provide valuable assistance in resolving doubts and ambiguities when a court is engaged in its difficult task of determining the intention of the legislature: (In the Matter of Kuberi Epi v. Tony Farapo (unreported) Supreme Court judgement No. SC 247, 1983, at p 4). But it seems to me that the Constituent Assembly gave a clear direction to courts interpreting constitutional laws. That direction is to reverse the previous conservative approach to statutory interpretation which tends to commence the task by detailed and literal study of the words used, turning some "deemed" intention of the legislature only in case of verbal ambiguity or internal conflict. That direction is to enlighten the judicial mind first and then to examine the actual words used from the view point of that enlightened mind. It must be a mind striving to give effect to the National Goals and Directive Principles. If the words are quite clear in their literal meaning then when seen from this enlightenment view point, and no other interpretation is fairly open, then they must be given that literal meaning. If, however, they can fairly be given an interpretation which is clearly more consistent with the spirit of the founding fathers then they should be given that enlightened interpretation. In seeking to understand this intention, courts are specifically empowered and encouraged to examine the Constitutional Planning Committee Report, the fourth draft of the Constitution and the record of the constitutional debates (Constitution s 24)."
80. Applying the principles stated in the line of cases referred to above, and giving a fair and liberal interpretation to ss. 27 (2) and 28 (I) of OLDRL and ss. 27, 28 (1) (g) (i) (4) and 29 (1) of the Constitution, we are of the firm opinion that the referral by the Public Prosecutor to a tribunal under s. 27 (2) of OLDRL takes effect on the date when the Chief Justice appoints the tribunal. This is the "deemed" intention of the legislature. See; SCR No. 3 of 1986; Reference by Simbu Provincial Executive (supra). We hold this view for the reason that the tribunal becomes seized of the matter as of the date the tribunal is appointed by the Chief Justice. That is also when the tribunal assumes jurisdiction over the matter.
81. The Public Prosecutor’s referral of a matter to a tribunal involves the request by the Public Prosecutor to the Chief Justice to appoint a tribunal and the appointment of a tribunal by an instrument signed by the Chief Justice. Under this process, the Chief Justice appoints a tribunal as a matter of course. The appointment of a tribunal by the Chief Justice under s. 27 (e) of the Constitution is therefore a part of the referral by the Public Prosecutor.
82. In our opinion, this is consistent with the thrust and the spirit of the Constitution that a leader who has been found guilty of misconduct in office by the Ombudsman Commission, should not be allowed to continue to perform duties of a leader after his integrity is or has been called into question under s. 27 of the Constitution, and after a tribunal to inquire into allegations of misconduct into office against him is or has been appointed. In our opinion once the Ombudsman Commission finds a prima facie case against a leader and refers him to the Public Prosecutor for prosecution under the Leadership Code, he should not continue to perform his leadership responsibilities once an appropriate tribunal is appointed to inquire into his alleged misconduct in office, for the reason that a finding of prima facie case against him by the Ombudsman Commission over the matter shows that the Commission must have good reason to conclude that the leader is guilty of misconduct in office.
83. It is pertinent to be reminded of what s. 27 of the Constitution states with respect to leaders subject to the Leadership Code:
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 Subsections (1), (2) and (3),
is guilty of misconduct in office.
84. Consistent with what we have expressed at the beginning, in this case, we say that the tribunal was seized of the matter when the Chief Justice appointed the tribunal. The fact that the tribunal also has jurisdiction over the matter is evidenced by the fact that the appellant was informed by the Associate to the tribunal Chairman, the Deputy Chief Justice Hon Gibbs Salika about the intention of the tribunal to convene for its first sitting on or about 23 February, 2010. The evidence comes from paragraphs 17, 18 and 19 of appellant’s affidavit. This evidence was relied upon by Sevua J, when he granted the application by the appellant to stay the tribunal from inquiring into the matter. This view is consistent with the scheme and the spirit of the OLDRL and the Constitution.
85. Physical presentation of the Charges together with the Statement of Reasons by the Ombudsman Commission before the tribunal by the prosecuting counsel is not the same thing as a Referral. It is the beginning of the prosecution of the matter that has been referred to the tribunal by the Public Prosecutor and it also marks the beginning of the tribunal’s inquiry into the matter.
86. If the physical act of presenting the charges together with the statement of reasons by the Ombudsman Commission by the prosecuting counsel is treated or regarded as the referral by the Public Prosecutor, as argued by Mr. Cooke and Mr. Narakobi, it will be against the scheme and the spirit of the OLDRL and the Constitution, particularly s. 27 of the OLDRL and ss. 27, 28 and 29 of the Constitution. This view would leave the Referral process, as it does, open for abuse by the leaders.
87. Furthermore, the duly appointed tribunals will be left frustrated and unable to perform the tasks for which they are appointed, i.e. inquiring into matters of alleged misconduct in office against the people referred. The leaders meanwhile will continue to perform their official duties by taking out stay orders at will, against the tribunals from inquiring into their alleged misconduct. This will make a mockery of the Leadership Code, more particularly the work of the Ombudsman Commission in enforcing the Leadership Code. The inquiries will continue to be stalled and the leaders whose integrities are already called into question will continue to discharge leadership responsibilities. This will also make a mockery of the Constitution and the leaders will continue to act in contempt and defiance of the Constitution.
88. The view we hold should ensure accountability by leaders who are accused of breaching the Leadership Code. It should also assist in achieving the primary purpose of the Leadership Code and the work of the Ombudsman Commission which is to preserve the people of Papua New Guinea from misconduct in office by its leaders. See, SCR No. 2 of 1992; Re The Leadership Code [1992] PNGLR 336.
89. In summary we are of the view that once referred pursuant to section 27 of the OLDRL, a leader is suspended from office with full pay. Suspension is automatic. Reading section 27 in its entirety shows this quite plainly that once the Ombudsman Commission finds a prima facie case and refers a leader to either the Public Prosecutor or the appropriate tribunal, it causes in motion section 28 which automatically comes into play.
90. In disagreeing with the current standing practice supported by the Ombudsman Commission, we say that section 28 does not come to life only when the charges are presented to the Leadership tribunal. The law does not even say that section 28 comes into play when the tribunal is seized of the matter. The specific wording of section 28 is explicitly clear when it says "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".
91. In our view the current position of the timing of a leader’s suspension from office for purposes of section 28 once referred under section 27 was inherited by default. This is the result of there being lack of clear legislative enactment or guidance. This default position is based on an incorrect understanding or appreciation of the referral process and is not even reflective of the true intention of the Legislature. In our view, both sections 27 and 28 must be read conjunctively for one to understand the true purport of section 28.
92. Finally, we say that when the term ‘referral’ is used in the context of section 28 of OLDRL, that means referral under section 27 which starts from the Ombudsman Commission to either the Public Prosecutor or the appropriate tribunal. Appointment of the tribunal is the culmination of that referral process whether upon request to the Chief Justice by the Public Prosecutor or by the appointing authority, depending on the leader under investigation.
93. We have tried to demonstrate that suspension of a person referred under section 27 for leadership investigation pursuant to section 28 OLDRL is automatic upon referral by the Ombudsman Commission. And the reason for this is obvious. A leader implicated in any serious misconduct allegations must immediately vacate that public office and allow investigations to take place so as to clear his name without tarnishing the good name and image of the leadership office that he occupies. That office belongs to the people of Papua New Guinea.
94. In answer to the question that the Court itself posed at the outset of this hearing as a related and pertinent issue, we are of the opinion that the suspension of the leader under section 28 is automatic and it comes into play even before the tribunal convenes and receives the charges and statement of reasons. The implication and effect of our conclusion regarding section 28(1) OLDRL is that the appellant was automatically suspended on 3rd February, 2010 following the appointment of the tribunal by the Chief Justice.
95. We want to emphasize that this decision does not affect the legality of the leadership duties performed by Hon Patrick Pruaitch MP since the appointment of the tribunal on 3rd February, 2010 because those duties were or would have been performed without the issue of suspension being clarified by the Court.
95. In our view, it is in the best interests of the parties and the people of Papua New Guinea that this matter be given the priority it deserves with finality in mind. Therefore, we direct that parties shall appear before the Supreme Court Directions Hearing this afternoon for the substantive appeal to be given a hearing date in the June sittings of the Supreme Court.
96. We award no costs to the parties.
Lawyers for the Appellant: Young and Williams
Lawyers for the First Respondent: Ombudsman Commission In-House Counsel
Lawyers for the Second Respondent: Acting Public Prosecutor
Lawyers for the Third and Fourth Respondents: Solicitor General
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