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In re Powers, Functions, Duties and Responsibilities of the Commissioner of Police [2014] PGSC 19; SC1388 (2 October 2014)

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NOS 2, 3 & 5 0F 2014

SC REF NO 2 OF 2014: REFERENCE BY
THE NATIONAL COURT
PURSUANT TO CONSTITUTION, SECTION 18(2),
IN RESPECT OF OS (JR) NO 485 OF 2014

SC REF NO 3 OF 2014: REFERENCE BY
THE NATIONAL COURT
PURSUANT TO CONSTITUTION, SECTION 18(2),
IN RESPECT OF OS NO 484 OF 2014

SC REF NO 5 OF 2014: REFERENCE BY
THE ATTORNEY-GENERAL
PURSUANT TO CONSTITUTION, SECTION 19(1)

IN THE MATTER OF THE POWERS, FUNCTIONS, DUTIES AND RESPONSIBILITIES OF THE COMMISSIONER OF POLICE
IN RELATION TO WARRANTS OF ARREST
ISSUED UNDER THE ARREST ACT CHAPTER 339
AND CHARGES OF CONTEMPT OF COURT

Waigani: Cannings J, Makail J, Sawong J,
Poole J, Kangwia J
2014: 29 August, 2 October

CONSTITUTIONAL LAW – disciplined forces – Police Force – Commissioner of Police – powers and functions of Commissioner to issue directions and orders to other members of Police Force – whether Commissioner can direct members as to law enforcement procedures: applying for and executing arrest warrants, laying, prosecuting, withdrawing criminal charges – Constitution, Sections 197, 198.

NATIONAL JUDICIAL SYSTEM – District Courts – power to issue warrants of arrest – Arrest Act – whether warrant is a court order or administrative authorisation – whether Commissioner of Police can challenge issue of warrant of arrest that has been sought by another member of the Police Force.

CONTEMPT OF COURT – whether Commissioner of Police bound to execute warrants of arrest – whether failure to execute or preventing execution of a warrant can amount to contempt of court – Constitution, Section 155(6).

CONTEMPT OF COURT – contempt of District Court – whether punishable in National Court – Constitution, Sections 37(2), 155, 166, 172.

The granting by the District Court of a warrant for the arrest of the Prime Minister was followed by two National Court proceedings. In OS (JR) No 485 of 2014 the Commissioner of Police and the Prime Minister applied for leave to seek judicial review of the District Court's decision to issue the warrant. In OS No 484 of 2014 the members of the Police Force who applied for the warrant sought to charge the Commissioner of Police with contempt of court for disobedience of the arrest warrant. In each proceeding the National Court, having considered that questions relating to the interpretation or application of provisions of the Constitution had arisen, referred the matter to the Supreme Court under Section 18(2) (original interpretative jurisdiction of the Supreme Court) of the Constitution.

OS (JR) No 485 of 2014 led to SC Ref No 2 of 2014, which contains six questions of constitutional interpretation and application. OS No 484 of 2014 led to SC Ref No 3 of 2014, which contains three questions of constitutional interpretation and application.

Around the same time that those references were made, the Attorney-General, being an authority entitled to do so, applied by way of special reference to the Supreme Court under Section 19(1) (special references to the Supreme Court) of the Constitution for its opinion on seven questions of constitutional interpretation and application; this reference arose out of the same events that led to the two National Court proceedings and the questions were similar in nature. The Supreme Court decided to consolidate the three references, resulting in them being heard together. A total of 16 questions of constitutional interpretation and application were heard and determined.

Held:

(1) The Commissioner of Police has authority to issue directions to other members of the Police Force regarding the conduct of criminal investigations, including applying for arrest and search warrants, laying charges, and presenting information.

(2) The granting under the Arrest Act of a warrant of arrest by the District Court, given the terms of such a warrant, is for the purposes of Section 155(6) of the Constitution, a decision of the National Judicial System. It is the equivalent of a court order, which must be complied with and put into effect. It is not a mere administrative authorisation. A duty to obey it is imposed on the persons to whom it is addressed, who have no intrinsic discretion not to execute it.

(3) In an appropriate case a member of the Police Force, including the Commissioner of Police, to whom a warrant is directed and who does not execute it in a timely manner or who refuses to execute it or frustrates the attempts of other persons to execute the warrant, may be guilty of contempt of court.

(4) The National Court, but not the District Court, has power to punish, for contempt of the District Court, contempt offences other than those created by Section 277 of the District Courts Act; and in an appropriate case a person, including the Commissioner of Police, may be prosecuted in the National Court for contempt of court constituted by disobedience of a warrant of arrest issued by the District Court.

Cases cited

The following cases are cited in the judgment:

Aigilo v Morauta (2001) N2102
Andrew Kwimberi v The State (1998) SC545
Application by Herman Joseph Leahy (2006) SC855
Damaru and Gitua v Vaki OS No 484 of 2014, 28.07.14
Helifix Group of Companies Ltd v PNG Land Board (2012) SC1150
James v Robinson [1963] HCA 32; (1963) 109 CLR 593
Lavu v Thompson & NBPOL (2007) N5018
Leto Darius v Commissioner of Police (2001) N2046
Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107
Love v Attorney-General [1990] HCA 4; (1990) 169 CLR 307
Marape & O'Neill v Paraka (2014) N5740
Marape v O'Neill & Paraka (2014) SC1378
Mark v Iki [1995] PNGLR 116
Meten v Seneka (2010) N4462
Nakun Pipoi v Seravo (2008) SC909
NTN Pty Ltd v Board of Post and Telecommunications Corporation [1987] PNGLR 70
Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69
Pepi Kimas v Boera Development Corporation (2012) SC1172
Peter Luga v Richard Sikani (2002) N2285
Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227
Reference by the Morobe Provincial Executive (2012) SC1202
Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8
SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178
Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281
Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act (2005) SC785
Stephen John Rose v Neville Devete (2007) N3327
The State v Lohia Sisia [1987] PNGLR 102
Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844

REFERENCES

This is the determination of three constitutional references.

Counsel

M M Varitimos QC & W Kapipi, for the Prime Minister
J A Griffin QC, G Purvey & P Tabuchi, for the Commissioner of Police
T Twivey-Nonggorr, for the Attorney-General
R Saulep, for the State
G M Egan, M M Nale & T G Lambert, for Chief Superintendent Damaru & Chief Inspector Gitua
M Murray, for Sir Toami Kulunga

2nd October, 2014

1. BY THE COURT: This is the determination of three constitutional references, containing 16 questions of constitutional interpretation and application, which have been made to the Supreme Court for its opinion.

2. Two references have been made by the National Court under Section 18(2) (original interpretative jurisdiction of the Supreme Court) of the Constitution. One reference has been made by the Attorney-General under Section 19(1) (special references to the Supreme Court) of the Constitution. All references arise out of the decision of the Port Moresby District Court constituted by Chief Magistrate Eliakim, of 12 June 2014, to issue a warrant under the Arrest Act Chapter 339 for the arrest of the Prime Minister, Hon Peter O'Neill MP.

SECTION 18(2) REFERENCES

3. The issue of the arrest warrant led to two National Court proceedings:

In OS (JR) No 485 of 2014, commenced on 14 July 2014, the Commissioner of Police and the Prime Minister apply for leave to seek judicial review of the District Court's decision to issue the warrant. In those proceedings the Commissioner and the Prime Minister are the plaintiffs and the Chief Magistrate and the State are the defendants.
In OS No 484 of 2014, commenced on 15 July 2014, the members of the Police Force who applied for the warrant of arrest, Detective Chief Superintendent Mathew Damaru and Detective Chief Inspector Timothy Gitua (Director and Deputy Director respectively of the National Fraud and Anti-Corruption Directorate), seek to charge the Commissioner of Police Geoffrey Vaki with contempt of court for disobedience of the arrest warrant. They allege that the Commissioner, since his appointment on 1 July 2014, has assumed responsibility for the warrant but failed to execute it and has prevented or frustrated its execution. They allege that the Commissioner was disobeying an order of the District Court and is therefore in contempt of the District Court. In those proceedings Chief Supt Damaru and Chief Insp Gitua (the members of the Police Force who applied for the warrant) are the plaintiffs and the Commissioner is the defendant.

4. In each proceeding the National Court, having considered that questions relating to the interpretation or application of provisions of the Constitution arose, referred the matter to the Supreme Court under Section 18(2) of the Constitution, which states:

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, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.

5. The proceedings OS (JR) No 485 of 2014, in which the National Court is constituted by Justice Gavara-Nanu, led to Supreme Court Reference No 2 of 2014 (SC Ref No 2 of 2014), which commenced on 31 July 2014. SC Ref No 2 of 2014 contains six questions of constitutional interpretation and application.

6. The proceedings OS No 484 of 2014, in which the National Court is constituted by Chief Justice Injia, led to Supreme Court Reference No 3 of 2014 (SC Ref No 3 of 2014), also commenced on 31 July 2014. SC Ref No 3 of 2014 contains three questions of constitutional interpretation and application.

SECTION 19(1) REFERENCE

7. On 13 August 2014 the Attorney-General Hon Ano Pala LLB MP, being an authority entitled by Section 19(3)(c) of the Constitution to do so, applied by way of special reference to the Supreme Court for its opinion on seven questions of constitutional interpretation and application. This reference was made under Section 19(1) of the Constitution, which states:

Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (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.

8. This reference, Supreme Court Reference No 5 of 2014 (SC Ref No 5 of 2014), arose out of the same events that led to the two National Court proceedings and the questions it raises are similar in nature to those in SCR Ref Nos 2 and 3 of 2014.

9. The Supreme Court has decided to consolidate the three references, resulting in them being heard together.

PARTIES

10. Six parties made submissions at the hearing of the consolidated references:

the Prime Minister Hon Peter O'Neill CMG MP: the subject of the arrest warrant at the centre of OS (JR) No 485 of 2014 and OS No 484 of 2014 and the second plaintiff in OS (JR) No 485 of 2014;
the Commissioner of Police Geoffrey Vaki MBE QPM DPS: the first plaintiff in OS (JR) No 485 of 2014 and the defendant in OS No 484 of 2014;
the Attorney-General Hon Ano Pala LLB MP: the referrer in SC Ref No 5 of 2014;
the Independent State of Papua New Guinea: the second defendant in OS (JR) No 485 of 2014;
Chief Superintendent Mathew Damaru MBE DPS MPAdmin and Chief Inspector Timothy Gitua: Director and Deputy Director respectively of the National Fraud and Anti-corruption Directorate, the first and second plaintiffs respectively in OS No 484 of 2014;
Sir Toami Kulunga OBE DPS: the immediate past Commissioner of Police, an intervener.

11. The arguments of the Prime Minister, the Commissioner of Police, the Attorney-General and the State are supportive of each other and in relation to the contentious questions are in opposition to those of Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga.

12. The arguments of Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga are supportive of each other and in relation to the contentious questions are in opposition to those of the Prime Minister, the Commissioner of Police, the Attorney-General and the State.

QUESTIONS

SC Ref No 2 of 2014

13. The six questions are:

Whether the First Plaintiff [Geoffrey Vaki] in his capacity as Commissioner of Police has standing or sufficient interest to seek leave for judicial review of the decision of the First Defendant [the Chief Magistrate] given on 12 June 2014, to issue a Warrant of Arrest against Honourable Peter O'Neill, Prime Minister of Papua New Guinea, following an application made by a member of the Police Force.
Whether the Commissioner of Police or any other member of the Police Force has power under Section [197] of the Constitution to direct or control another member of the Police Force in the discharge of his/her function under Section 197(2) of the Constitution to lay, prosecute or withdraw charges in respect of an offence or offences. [Note that the first provision referred to in this question is Section 192. All parties agree that that was a typographical error and that Section 197 should be substituted for Section 192. That change is endorsed by the Supreme Court.]
Whether the Commissioner of Police has power under Section 198 of the Constitution to direct or control a member of the Police Force in the discharge of his/her function under Section 197(2) to lay, prosecute or withdraw charges in respect of an offence or offences.
Whether the Commissioner of Police or any other member of the Police Force has power under Section 197(2) to direct or control another member of the Police Force from executing a warrant of arrest issued by a Court of competent jurisdiction.
Whether, having regard to the provisions of the Constitution including Sections 197 and 198 thereof and the provisions of the Police Act 1998, the Commissioner of Police may challenge the validity of a warrant of arrest issued by a court of competent jurisdiction, including the District Court on application of another member of the Police Force.
Whether, having regard to the provisions of the Constitution including Sections 197 and 198 thereof and the provisions of the Police Act, the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer.

SC Ref No 3 of 2014

14. The three questions are:

Does the expression "Except, subject to any Act of the Parliament to the contrary" appearing in Section 37(2) of the Constitution limit the contempt powers of the District Court to only those contempt of court offences that are expressly stipulated in Section 277 of the District Courts Act?
If the answer to Question 1 is "Yes", does the National Court have jurisdiction to deal with contempt offences that fall outside of Section 277 of the District Courts Act, given to it by Sections 155(4) and (6), 166 and 172 of the Constitution?
If the answer to Question 1 is "No", what is the procedure to be applied by the District Court in dealing with contempt offences that fall outside of Section 277 of the District Courts Act?

SC Ref No 5 of 2014

15. The seven questions are:

Whether the Commissioner of Police has authority to make decisions or issue directions or orders in relation to members of the police force.
Whether, in appropriate cases, the function of the Police Force to lay, prosecute or withdraw charges in respect of offences may be subject to direction or control by the Commissioner of Police.
Do Sections 155(4), 155(6) and 172 of the Constitution, or any other provision or provisions of the Constitution, authorise the National Court to punish for contempt, a breach of an administrative action or determination by a magistrate of the District Court?
Whether, in appropriate cases, the Commissioner of Police may make decisions or issue directions or orders in relation to a warrant of arrest:

(a) being withdrawn;

(b) not being executed.

Whether the National Court of Justice or District Court has authority to punish the Commissioner of Police for contempt of Court for failing to execute or preventing the execution of:

(a) a valid warrant for arrest; and

(b) an invalid warrant for arrest,

issued by a District Court Magistrate.

Whether a member of the Regular Constabulary Branch requires the permission of the Commissioner of Police to accept or continue to hold an office in or under the Government or any public or municipal corporation.
If the answer to question 6 is in the affirmative, may the Commissioner of Police withdraw such permission at any time?

16. For the purposes of hearing the consolidated references the 16 questions have been re-numbered as follows:

SC Ref 2, Q 6
SC Ref 3, Q 1
SC Ref 3, Q 2
SC Ref 3, Q 3
SC Ref 2, Q 1
SC Ref 2, Q 2
SC Ref 2, Q 3
SC Ref 2, Q 4
SC Ref 2, Q 5
SC Ref 5, Q 1
SC Ref 5, Q 2
SC Ref 5, Q 3
SC Ref 5, Q 4
SC Ref 5, Q 5
SC Ref 5, Q 6
SC Ref 5, Q 7.

17. The questions will be addressed in that order. The positions of the parties are summarised before our determination of each question.

QUESTION 1: WHETHER, HAVING REGARD TO THE PROVISIONS OF THE CONSTITUTION INCLUDING SECTIONS 197 AND 198 THEREOF AND THE PROVISIONS OF THE POLICE ACT, THE COMMISSIONER OF POLICE MAY CHALLENGE THE VALIDITY OF A WARRANT OF ARREST ISSUED BY A DISTRICT COURT MAGISTRATE ON THE APPLICATION OF A POLICE OFFICER. [SC REF 2, Q 6]

The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

18. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes.

19. The Police Force is established as a State Service by Section 188(1)(b) (establishment of the State Services) of the Constitution. It is a "disciplined force" by virtue of Section 207(1)(a) (definition of force) of the Constitution. Its primary functions are set out in Section 197(1) (functions of the Police Force) of the Constitution:

The primary functions of the Police Force are, in accordance with the Constitutional Laws and Acts of the Parliament—

(a) to preserve peace and good order in the country; and

(b) to maintain and, as necessary, enforce the law in an impartial and objective manner.

20. Policy and political control over the Police Force is the function of the National Executive Council, exercised through a Minister, in accordance with Section 196 (control of the Police Force) of the Constitution, which states:

(1) The Police Force is subject to the control of the National Executive Council through a Minister.

(2) The Minister has no power of command within the Police Force, except to the extent provided for by a Constitutional Law or an Act of the Parliament.

21. However as the Supreme Court emphasised in SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178 there is a sharp distinction between political responsibility (which lies with the Minister) and operational responsibility (which lies with the Commissioner). The ultimate power of command and the primary responsibility for operational control of the Police Force fall within the domain of the Commissioner of Police.

22. That principle was followed by the National Court in Aigilo v Morauta (2001) N2102 and Marape & O'Neill v Paraka (2014) N5740. It has been reinforced by the Supreme Court decisions in Special Reference Pursuant to Constitution Section 19 by the Morobe Provincial Executive Re Enhanced Co-operation Between Papua New Guinea and Australia Act (2005) SC785 ("the ECP case") and very recently in Marape v O'Neill & Paraka (2014) SC1378. The Commissioner is entitled to exercise that power and responsibility exclusively. He is not subject to direction or control by any person or authority including the Minister or the National Executive Council. These are the dictates of Section 198 of the Constitution, which states:

There shall be, within the Police Force, an office of Commissioner of Police, who shall be responsible for the superintendence, efficient organization and control of the Force in accordance with an Act of the Parliament.

23. As the Police Force is a disciplined force each member of the Force holds a particular rank and has seniority in accordance with a hierarchy of ranks established by law (see Police Act 1998, Section 37 (seniority) and Police Regulation 1998, Sections 4, 5, 6). The Commissioner is at the peak of the hierarchy. Each member is obliged to obey lawful orders including and especially any such orders given by the Commissioner. This obligation is imposed by Section 208(1) (protection of members of disciplined forces) of the Constitution, which states:

Because of the special nature of disciplined forces and of their operations, it is a primary duty of their members to obey lawful orders, and accordingly an Organic Law shall make special provision for relieving a member of such a force from responsibility for the consequences of—

(a) carrying out a lawful order; or

(b) carrying out an order which he honestly, and on reasonable grounds believed to be a lawful order, in which case the onus of establishing his belief and the reasonable grounds on which it was based, shall be upon him.

24. The Organic Law on the Relief of Members of Disciplined Forces from the Responsibility for the Consequences of Carrying Out a Lawful Order has been made to implement Section 208.

25. In discharging the constitutional functions of preserving peace and good order and maintaining and enforcing the law, it is necessary for members of the Police Force to engage in criminal investigations and to lay and prosecute charges in respect of criminal offences. The process of criminal investigation and prosecution necessarily involves the exercise of powers of arrest and search and seizure, including applying to a Court for, and obtaining from a Court, warrants of arrest under the Arrest Act. Whenever a member of the Police Force exercises any of these powers he or she is, always, ultimately answerable to the Commissioner of Police.

26. This is because of the command and control structure that necessarily exists in any disciplined force, subject to any special command and control structure that the Commissioner puts in place as part of exercising responsibility for the superintendence, efficient organisation and control of the Force.

27. This does not mean that a member of the Force needs express approval of the Commissioner to apply for a warrant of arrest. But it does mean that the Commissioner can lawfully order a member not to apply for a warrant, just as the Commissioner can order a member or a division or squad or task force not to investigate a suspected crime or to give priority and devote resources to investigation of particular suspected crimes.

28. We reject the view, propounded by Chief Supt Damaru, Chief Insp Gitua and Sir Toami Kulunga, that each member of the Force can decide independently all steps to take in a criminal investigation without being subject to direction or control by any person, including the Commissioner. This follows from Section 197(2) of the Constitution, which relevantly states:

... insofar as it is a function of the Police Force to lay, prosecute or withdraw charges in respect of offences, the members of the Police Force are not subject to direction or control by any person outside the Force.

29. It is clear that, at least in instances where a court does not issue a warrant of arrest or search or an order of some sort directly relating to a criminal investigation, the conduct of all criminal investigations is subject to the direction and control of the Commissioner. This includes the making by all members of the Police Force of operational decisions, such as:

Who to investigate?
What to investigate?
Who to arrest?
Whose premises to search?
Whose bank accounts to search?
Against whom to seek a warrant of arrest from the District Court?

30. The position is less clear if a court such as the District Court or the National Court issues a warrant or order directly relating to an investigation. Arguably the Commissioner has a diminished power of direction and control in such situations. This issue is addressed in later questions. For now, we address the issue at the centre of question 1:

if a warrant of arrest is issued by the District Court on the application of a police officer, can the Commissioner challenge its validity?

31. None of the submissions advanced on behalf of Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga provide a good reason for answering this question in the negative. It must be answered yes as the Commissioner has an inherent and legitimate interest in the subject matter of all criminal investigations.

32. It might be that the member of the Force who applied for the warrant did so without the approval of the Commissioner or contrary to an order of the Commissioner. It might be that the Commissioner forms the view that a warrant should not have been issued or that the Court issuing it erred in law by doing so. The Commissioner might be concerned that execution of the warrant would entail the deployment of too many resources that are required in other areas. Those are but some of the scenarios in which the Commissioner might legitimately decide that the validity of a warrant ought to be challenged.

33. There are at least three ways the Commissioner might challenge the validity of a warrant. First, the Commissioner can, as he did in OS (JR) No 485 of 2014, make an application to the National Court under Order 16 of the National Court Rules for leave to seek judicial review of the District Court's decision to issue the warrant. One of the prerequisites for the granting of leave is, under Order 16, Rule 3(5), that the applicant "has a sufficient interest in the matter to which the application relates" (NTN Pty Ltd v Board of Post and Telecommunications Corporation [1987] PNGLR 70, Nakun Pipoi v Seravo (2008) SC909, Helifix Group of Companies Ltd v PNG Land Board (2012) SC1150, Pepi Kimas v Boera Development Corporation (2012) SC1172).

34. The question of whether an applicant is granted leave for judicial review is a matter of discretion to be exercised by the National Court in the light of the facts and circumstances of each application. There are other criteria to be satisfied in addition to the requirement that the applicant has a sufficient interest, eg the applicant must establish an arguable case and make the application without undue delay (Leto Darius v Commissioner of Police (2001) N2046). However, we see no reason, in principle, why the Commissioner should not be regarded as having a sufficient interest in a decision of the District Court to issue an arrest warrant, following an application by a member of the Force of which he has ultimate operational control.

35. The second way of challenging the validity of a warrant would be for the Commissioner to appeal to the National Court under Section 219(1) of the District Courts Act, which states:

Subject to Subsections (2) and (3), a person aggrieved by a conviction, order or adjudication of a Court, including an adjudication or order dismissing an information or complaint, may appeal to the National Court from the conviction, order or adjudication, in accordance with this Part.

36. A third mode of challenge is available under Section 155(3)(a) (the National Judicial System) of the Constitution, which states:

The National Court ... has an inherent power to review any exercise of judicial authority.

Answer to question 1

37. Yes, the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer.

QUESTION 2: DOES THE EXPRESSION "EXCEPT, SUBJECT TO ANY ACT OF THE PARLIAMENT TO THE CONTRARY" APPEARING IN SECTION 37(2) OF THE CONSTITUTION LIMIT THE CONTEMPT POWERS OF THE DISTRICT COURT TO ONLY THOSE CONTEMPT OF COURT OFFENCES THAT ARE EXPRESSLY STIPULATED IN SECTION 277 OF THE DISTRICT COURTS ACT? [SC REF 3, Q 1]

38. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
No	No	No	No	Yes	Yes

39. This question requires an interpretation of Section 37(2) (protection of the law) of the Constitution, which states:

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

40. The question actually raises two issues:

(a) Are the contempt powers of the District Court limited to those contempt of court offences expressly stipulated in Section 277 (contempt of court) of the District Courts Act?

(b) Are those powers limited because of the expression "Except, subject to any Act of the Parliament to the contrary" in Section 37(2) of the Constitution?

The parties agree on (a) but disagree on (b).

(a) Are the contempt powers of the District Court limited to those in Section 277 of the District Courts Act?

41. The parties agree that the contempt powers of the District Court are limited to the contempt offences set out in Section 277 of the District Courts Act, which states:

(1) A person who:

(a) wilfully interrupts the proceedings of a Court; or

(b) conducts himself disrespectfully to the Court during the sittings of the Court; or

(c) obstructs or assaults a person in attendance, or an officer of the Court, in view of the Court; or

(d) wilfully disobeys an order made by the Court under Section 63,

may be excluded from the Court and is guilty of an offence.

Penalty: A fine not exceeding K200.00

(2) A person who, in the opinion of the Court, wilfully prevaricates in giving evidence is guilty of an offence.

Penalty: A fine not exceeding K100.00.

(3) The Court in the presence of which an offence under this section is committed may immediately convict the person guilty of the offence, on its own view or on the oath of some credible witness.

(4) If a person convicted of an offence against subsection (1) makes to the Court, before its rising, such apology as it considers satisfactory, the Court may remit the fine wholly or in part.

42. They agree with the analysis of Section 277 and the contempt powers of the District Court provided by the National Court in Meten v Seneka (2010) N4462, in which Cannings J noted that Sections 277(1) and (2) create five different contempt of court offences:

wilfully interrupting the proceedings of a Court (s 277(1)(a));
conducting oneself disrespectfully to the Court during the sittings of the Court (s 277(1)(b));
obstructing or assaulting a person in attendance, or an officer of the Court, in view of the Court (s 277(1)(c));
wilfully disobeying an order made by the Court under Section 63 (s 277(1)(d));
wilfully prevaricating in giving evidence (s 277(2)).

43. They agree that Section 277 provides an exhaustive statement of the circumstances in which the District Court can punish the offence of contempt of court committed against itself. They agree that the District Court is an inferior court in the National Judicial System and that it is a court of limited jurisdiction. They agree that the contempt powers of the District Court are in sharp distinction from those of the Supreme Court and the National Court, each of which is conferred the power, without restriction, to punish contempt of court committed against it.

44. This power is conferred on the Supreme Court by Section 160(2) (establishment of the Supreme Court) of the Constitution:

The Supreme Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.

45. The same power is conferred on the National Court by Section 163(2) (establishment of the National Court) of the Constitution:

The National Court is a superior court of record and accordingly, subject to any Act of the Parliament, has the power to punish the offence against itself commonly known as contempt of court.

46. The parties agree that the District Court has no general power to punish a person who disobeys or fails to comply with its orders. We endorse as correct the foregoing areas of agreement and we answer what we have described as question 2(a), yes.

Alternative view

47. We have considered an alternative view of the District Court's contempt powers – not put to the Court by any of the parties – which is that every court, including the District Court, has an inherent power to punish the offence of contempt (of whatever nature) committed against itself. If this approach were taken, the District Court's contempt powers would not be confined to the types of contempt set out in Section 277 of the District Courts Act.

48. Injia CJ regarded this as an arguable proposition when framing question 2, as question 1 in SC Ref No 3 of 2014 (Damaru and Gitua v Vaki OS No 484 of 2014, 28.07.14). There is support for this view in the judgment of Sakora J in Peter Luga v Richard Sikani (2002) N2285. His Honour pointed out that contempt of court is a doctrine of English common law that has become part of the underlying law of Papua New Guinea, and noted that contempt powers have been vested in the Supreme Court and the National Court by Sections 160(2) and 163(2) of the Constitution. His Honour observed:

This is of course inherent power translated into statutory form under the Constitution (and ordinary legislation creating and vesting powers on tribunals and commissions). The courts, therefore, have undoubted powers to compel observance of their processes and obedience of and compliance with their orders and directions. These powers are inherent ... in the sense that they "are necessary attributes to render the judicial function effective in the administration of justice". Expressed in another way, the power to punish for contempt is inherent in the judiciary. The contempt power enables the courts to perform their functions without interference, to control courtroom behaviour and to enforce orders and compel obedience. The doctrine as applicable in the United States demonstrating the inextricable relationship between Courts and their contempt power was notably stated in Ex Parte Robinson, [1873] USSC 57; 86 US. 505,510 (1873):

The power to punish for contempt is inherent in all courts; its existence is essential to the preservation of order in judicial proceedings, and to the enforcement of the judgments, orders, and writs of the courts, and consequently to the administration of justice. The moment the courts of the [United States] were called into existence and invested with jurisdiction over any subject, they became possessed of this power.

49. We would have little difficulty concluding that the District Court has an inherent power under the underlying law to punish the offence of contempt (of whatever nature) committed against itself if the jurisdiction and powers of the courts had been conferred in some way other than the way it has been in the Constitution. However, the following provisions of Division VI.5 (the administration of justice) of the Constitution militate against that view:

Section 155(1) establishes the National Judicial System, which consists of the Supreme Court, the National Court and "such other courts as are established under Section 172".
Both the Supreme Court and the National Court are by Sections 160(1) and 163(1) established directly by the Constitution as superior courts of record and are expressly given the power to punish the offence against itself commonly known as contempt of court.
By contrast the District Court is established by an Act of the Parliament: the District Courts Act has been made in accordance with Section 172 (establishment of other Courts) of the Constitution. The District Court, unlike the Supreme Court and the National Court, is not established by the Constitution. It is an inferior court of limited jurisdiction. It is not a superior court of record. Significantly, the Constitution does not expressly confer on it the power to punish for contempt of court.

50. The necessary inference to draw from these provisions is that the District Court has no inherent or constitutionally conferred power to punish contempt of court committed against itself. Any such power must be conferred on it by a written law. This has been done by Section 277 of the District Courts Act, but by no other written law. This reinforces the conclusion that the contempt powers of the District Court are limited to those contempt of court offences expressly stipulated in Section 277.

(b) Are the District Court's contempt powers limited because of the expression "Except, subject to any Act of the Parliament to the contrary" in Section 37(2) of the Constitution?

51. The Prime Minister, the Commissioner of Police, the Attorney-General and the State argue the negative case. They submit that Section 37(2) neither confers nor limits the power of any court to punish for contempt. Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga argue the positive. They submit that Section 37(2) allows the Parliament to determine that a specific court, such as the District Court, shall have limited power to punish for contempt of court.

52. To answer this sub-question we re-state Section 37(2):

Except, subject to any Act of the Parliament to the contrary, in the case of the offence commonly known as contempt of court, nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law. [Emphasis added]

53. In determining the meaning and effect of the emphasised expression – which is the form of words at the centre of question 2 – it is important to bear in mind the context of Section 37(2) in the Constitution. It is an integral part of Section 37 (protection of the law), which falls within Division III.3 (basic rights). Section 37(2) is therefore a human rights provision. It is one of the sub-sections of Section 37 which is intended to ensure that the right to the full protection of the law, which is conferred by Section 37(1), "is fully available, especially to persons in custody or charged with offences".

54. Section 37(2) confers a right, but not an absolute one. It helps to ensure that all persons charged with offences have the right to the full protection of the law. It does this by stating a fundamental proposition, but then making that proposition subject to an exception, and then qualifying the exception.

55. The fundamental proposition is:

nobody may be convicted of an offence that is not defined by, and the penalty for which is not prescribed by, a written law.

56. The exception is:

in the case of the offence commonly known as contempt of court; this means that a person can be convicted and punished for the offence of contempt of court even though the offence and the penalty are not defined by written law.

57. The qualification to the exception is:

"subject to any Act of the Parliament to the contrary".

58. The effect of that qualification is to make it permissible for the Parliament – at least in relation to courts other than the Supreme Court and the National Court (which are expressly given contempt powers by the Constitution) – to define, and limit, by written law, the offence of contempt of court and the penalty for that offence. It seems to us that that is a proper assessment of what the Parliament has done by enacting Section 277 of the District Courts Act. It has invoked the qualification "subject to any Act of the Parliament to the contrary" and ensured that the offence of contempt of court, when committed against the District Court, can only be punished by the District Court if the sort of contempt offences prescribed by Section 277 are committed.

59. We therefore agree with the position advanced by Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga that the expression "Except, subject to any Act of the Parliament to the contrary" in Section 37(2) reinforces the conclusion (reached in our determination of question 2(a)) that the contempt powers of the District Court are limited to the offences expressly stipulated in Section 277 of the District Courts Act. We reject the argument that Section 37(2) neither confers nor limits the power of any court to punish for contempt. It does allow for a limitation of such power to be imposed by an Act of the Parliament. We answer question 2 yes.

Answer to question 2

60. Yes, the contempt powers of the District Court are limited to only those contempt of court offences that are expressly stipulated in Section 277 of the District Courts Act; and yes, the expression "Except, subject to any Act of the Parliament to the contrary" appearing in Section 37(2) of the Constitution reinforces that conclusion.

QUESTION 3: IF THE ANSWER TO QUESTION 2 IS "YES", DOES THE NATIONAL COURT HAVE JURISDICTION TO DEAL WITH CONTEMPT OFFENCES THAT FALL OUTSIDE OF SECTION 277 OF THE DISTRICT COURTS ACT, GIVEN TO IT BY SECTIONS 155(4) AND (6), 166 AND 172 OF THE CONSTITUTION? [SC REF 3, Q 2]

61. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	Yes	Yes

62. The parties agree that the National Court has jurisdiction to deal with contempt offences that fall outside Section 277 of the District Courts Act. They agree with the analysis of the jurisdiction of the National Court in such situations provided by the National Court in Mark v Iki [1995] PNGLR 116, in which Akuram AJ noted that the National Court is a court of unlimited jurisdiction. His Honour suggested that the role of the National Court in relation to the District Court was supervisory in nature: it watches over the proceedings of inferior courts, not only to prevent them from exceeding their jurisdiction, but also to prevent persons from interfering with the course of justice in those courts.

63. We agree that this is the correct position in law. As to why this is so, in particular whether the National Court has jurisdiction given to it by Sections 155(4), 155(6), 166 (jurisdiction of the National Court) and/or 172 of the Constitution, the starting point is to acknowledge that the offence of contempt of court, except to the extent that it is codified by, for example, Section 277 of the District Courts Act, forms part of the underlying (unwritten) law of Papua New Guinea. Contempt of court can take many forms. Sakora J provided an erudite exposition of the different categories of contempt of court in Peter Luga v Richard Sikani (2002) N2285:

1 Improper behaviour in a courtroom during a hearing; the "contempt in the face of the court" situation.

2 Endeavouring improperly to influence participants in proceedings.

3 Contempt by publication, notably publishing allegations, which tend to undermine public confidence in the administration of justice; and publishing material which tend to prejudice the fair trial of a case.

4 Failure to comply with an order of the court or undertaking given to a court, commonly referred to as the "disobedience contempt".

5 Other forms of interference with the administration of justice, including failing to carry out one's duties as a court officer and taking reprisals on witnesses and court officials on account of what they have said or done in court.

64. Section 277 of the District Courts Act deals, insofar as the District Court is concerned, only with category (1). When other sorts of contempt of court (categories (2) to (5)) are committed in relation to the District Court, the District Court has, as we concluded in 2, no jurisdiction. That does not mean that an offence has not been committed or that no court has jurisdiction to deal with the matter. The offence of contempt of court always exists. It is an inherent part of the underlying law. It is simply a matter of finding, with the assistance of the Constitution, a way of prosecuting the offence, and finding a court which has jurisdiction to deal with it. That the National Court is the appropriate court is the inexorable result of application of the following provisions of the Constitution:

Sections 166(1) and (2);
Sections 155(3), (4), (5) and (6);
Section 22 (enforcement of the Constitution);
Section 23 (sanctions);
Section 172; and
Section 157 (independence of the National Judicial System).

65. Section 166 (jurisdiction of the National Court) states:

(1) Subject to this Constitution, the National Court is a court of unlimited jurisdiction.

(2) In particular, the National Court has the jurisdiction set out in—

(a) Section 22 (enforcement of the Constitution); and

(b) Subdivision III.3.D (enforcement); and

(c) Section 155 (the National Judicial System),

and otherwise as provided by this Constitution or any other law.

(3) Subject to any Act of the Parliament and to the Rules of Court of the National Court, the jurisdiction of the National Court may be exercised by a single Judge of that Court, or by a number of Judges sitting together.

(4) The jurisdiction of the National Court may be exercised by a Judge or Judges of that Court notwithstanding that it is being exercised at the same time by another Judge or other Judges.

(5) The jurisdiction of the National Court may be exercised either in court or in chambers, as provided by or under an Act of the Parliament or the Rules of Court of the National Court.

66. Section 166(1) is the critical provision: the National Court is a court of unlimited jurisdiction, subject to the proviso that if the Constitution indicates or provides for a law that expressly or impliedly deprives the National Court of jurisdiction, the National Court will be deprived of jurisdiction that it would otherwise have.

67. An example of an area of the law in which the National Court has been deprived of jurisdiction is the determination of disputes about ownership of customary land, which fall within the exclusive jurisdiction of the Land Titles Commission (The State v Lohia Sisia [1987] PNGLR 102, Louis Lucian Siu v Wasime Land Group Incorporated (2011) SC1107, Ronny Wabia v BP Exploration Operating Co Ltd [1998] PNGLR 8, Lavu v Thompson & NBPOL (2007) N5018, Thomas Taiya Ambi v Exxon Mobil Ltd (2012) N4844).

68. In the case of the law of contempt in relation to the District Court, there is no law that expressly or impliedly removes jurisdiction from the National Court. Section 166(1) is therefore a sufficient source of jurisdiction.

69. Section 155 (the national judicial system) states:

(1) The National Judicial System consists of—

(a) the Supreme Court; and

(b) the National Court; and

(c) such other courts as are established under Section 172 (establishment of other courts).

(2) The Supreme Court—

(a) is the final court of appeal; and

(b) has an inherent power to review all judicial acts of the National Court; and

(c) has such other jurisdiction and powers as are conferred on it by this Constitution or any other law.

(3) The National Court—

(a) has an inherent power to review any exercise of judicial authority; and

(b) has such other jurisdiction and powers as are conferred on it by this Constitution or any law,

except where—

(c) jurisdiction is conferred upon the Supreme Court to the exclusion of the National Court; or

(d) the Supreme Court assumes jurisdiction under Subsection (4); or

(e) the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament.

(4) Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.

(5) In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are over-riding considerations of public policy in the special circumstances of a particular case.

(6) Subject to any right of appeal or power of review of a decision, it is the duty of all persons (including the Law Officers of Papua New Guinea and other public officers in their respective official capacities), and of all bodies and institutions, to comply with and, so far as is within their respective lawful powers, to put into effect all decisions of the National Judicial System.

70. There are three provisions of Section 155 that directly reinforce the jurisdiction of the National Court in cases of alleged contempt of court committed against the District Court:

Section 155(3)(a): the National Court has an inherent power to review any exercise of judicial authority, including judicial authority exercised by the District Court (subject to the exceptions provided by Sections 155(3)(c), (d) and (e), none of which apply here). This provision gives the National Court a supervisory role over the lower courts. In this regard we endorse the dicta of Akuram AJ in Mark v Iki [1995] PNGLR 116 that the supervisory role of the National Court includes not only ensuring that the lower courts do not exceed their jurisdiction, but also ensuring that the administration of justice by those courts is not interfered with.
Section 155(4): the National Court has an inherent power to make, in such circumstances as seems to it proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. This provision bolsters the supervisory role of the National Court in relation to the District Court.
Section 155(6): this is a significant provision in the context of the events that have led to the three constitutional references before us as it imposes a duty to comply with decisions of the National Judicial System. The meaning and effect of Section 155(6) was addressed by the Supreme Court in Application by Herman Joseph Leahy (2006) SC855.

71. The provision creates a duty to:

comply with; and
put into effect (so far as is within the respective lawful powers of those subject to the duty),

all decisions of the National Judicial System.

72. The duty is imposed on: all persons (including Law Officers and other public officers in their respective official capacities) and all bodies and institutions. Section 155(6) therefore reinforces the principle that everyone has a duty to comply with and put into effect court decisions.

73. That duty is also reflected in the principle that the plain and unqualified obligation of every person in respect of whom a court order is made, is to obey it unless and until it is discharged, even if they do not agree with or think it is invalid or irregular. As long as a court order exists it has to be obeyed (Philip Soon Kiat Yap v Tin Siew Tan, B & T Engineering Pty Ltd, Robert L Wong, William Baptiste and David F Tau [1987] PNGLR 227, National Court, Hinchliffe J).

74. Section 22 (enforcement of the Constitution) states:

The provisions of this Constitution that recognise rights of individuals (including corporations and associations) as well as those that confer powers or impose duties on public authorities, shall not be left without effect because of the lack of supporting, machinery or procedural laws, but the lack shall, as far as practicable, be supplied by the National Court in the light of the National Goals and Directive Principles, and by way of analogy from other laws, general principles of justice and generally-accepted doctrine.

75. Section 22 focuses on three types of provisions of the Constitution. Those that:

recognise rights of individuals;
confer powers on public authorities;
impose duties on public authorities.

76. Section 155(6) is a provision falling within the third category. It imposes a duty on public authorities to comply with and put into effect all decisions of the National Judicial System. We suggest that the decision of the District Court to issue a warrant for the arrest of a person is a decision of the National Judicial System. If a person fails to comply with that decision or put it into effect, and given that there appears to be a lack of supporting, machinery or procedural laws to enforce compliance, Section 22 is saying that the lack of such laws shall, as far as practicable, be supplied by the National Court.

77. Section 23 (sanctions) states:

(1) Where any provision of a Constitutional Law prohibits or restricts an act, or imposes a duty, then unless a Constitutional Law or an Act of the Parliament provides for the enforcement of that provision the National Court may—

(a) impose a sentence of imprisonment for a period not exceeding 10 years or a fine not exceeding K10 000.00; or

(b) in the absence of any other equally effective remedy under the laws of Papua New Guinea, order the making of compensation by a person (including a governmental body) who is in default,

or both, for a breach of the prohibition, restriction or duty, and may make such further order in the circumstances as it thinks proper.

(2) Where a provision of a Constitutional Law prohibits or restricts an act or imposes a duty, the National Court may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty, and Subsection (1) applies to a failure to comply with the order as if it were a breach of a provision of this Constitution.

(3) Where the National Court considers it proper to do so, it may include in an order under Subsection (2) an anticipatory order under Subsection (1).

78. Section 23 focuses on three types of constitutional provisions. Those that:

prohibit an act;
restrict an act;
impose a duty.

79. Again we provide Section 155(6) as an example of a provision that falls within the third category. It imposes a duty on everyone to comply with and put into effect all decisions of the National Judicial System. The decision of the District Court to issue a warrant for the arrest of a person is a decision of the National Judicial System. If a person fails to comply with that decision or put it into effect, and given that there appears to be no Constitutional Law or Act of the Parliament providing expressly for the enforcement of Section 155(6), Section 23(1) is saying that there is a range of sanctions available to the National Court for breach of that duty. Section 23(2) is an even broader source of jurisdiction: the National Court "may, if it thinks it proper to do so, make any order that it thinks proper for preventing or remedying a breach of the prohibition, restriction or duty".

80. Section 172 (establishment of other courts) states:

(1) Subject to this Constitution, Acts of the Parliament may establish, or provide for the establishment of, courts within the National Judicial System in addition to the Supreme Court and the National Court, and may define, or provide for the definition of, their respective powers, functions and jurisdictions and their relationship with other components of the National Judicial System.

(2) Courts established under Subsection (1) may include courts intended to deal with matters primarily by reference to custom or in accordance with customary procedures, or both.

(3) Full-time members of courts established under Subsection (1) (other than courts referred to in Subsection (2)) shall be appointed by the Judicial and Legal Services Commission, and may be removed from office in accordance with an Act of the Parliament, but only for incapacity or misbehaviour (including, if applicable, misconduct in office).

(4) Acts of the Parliament may make provision for or in respect of the appointment and removal from office of members of courts referred to in Subsection (2).

81. Section 172 is a significant provision as it bolsters the notion of the National Judicial System (consisting, by virtue of Section 155(1), of the Supreme Court, the National Court and such other courts as are established by Section 172) as being a unified system, built on the principle of judicial independence. All its decisions must, perforce of Section 155(6), be complied with. In this system it is the National Court, as the superior court with unlimited jurisdiction, which has a supervisory role over all of the lower courts, especially the District Court.

82. Section 157 (independence of the national judicial system) states:

Except to the extent that this Constitution specifically provides otherwise, neither the Minister responsible for the National Justice Administration nor any other person or authority (other than the Parliament through legislation) outside the National Judicial System has any power to give directions to any court, or to a member of any court, within that System in respect of the exercise of judicial powers or functions.

83. Section 157 is significant as it makes judicial independence a constitutionally entrenched principle. It ensures that the principle of judicial independence protects not only the superior courts but all courts, including the District Court, in the National Judicial System. When any court exercises judicial powers or functions, it is not subject to direction or control by persons or authorities outside the National Judicial System (subject to the exceptions in Section 157).

Answer to question 3

84. Yes, the National Court has jurisdiction to deal with contempt offences that fall outside Section 277 of the District Courts Act. That jurisdiction arises due to the combined effect of Sections 155(4) and (6), 166 and 172 of the Constitution, and also Sections 22, 23, 155(3) and (5) and 157 of the Constitution.

QUESTION 4: IF THE ANSWER TO QUESTION 2 IS "NO", WHAT IS THE PROCEDURE TO BE APPLIED BY THE DISTRICT COURT IN DEALING WITH CONTEMPT OFFENCES THAT FALL OUTSIDE OF SECTION 277 OF THE DISTRICT COURTS ACT? [SC REF 3, Q 3]

85. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Not necessary to answer	Not necessary to answer	Not necessary to answer	Not necessary to answer	Not necessary to answer	Not necessary to answer

86. We agree with the parties that it is unnecessary to answer this question as it is based on question 2 being answered no, but question 2 has been answered yes.

87. We repeat our opinion that contempt offences allegedly committed in relation to the District Court, other than those that fall within Section 277 of the District Courts Act, should be prosecuted and punished (in the event of a contemnor being convicted) in the National Court.

QUESTION 5: WHETHER THE FIRST PLAINTIFF [GEOFFREY VAKI] IN HIS CAPACITY AS COMMISSIONER OF POLICE HAS STANDING OR SUFFICIENT INTEREST TO SEEK LEAVE FOR JUDICIAL REVIEW OF THE DECISION OF THE FIRST DEFENDANT [THE CHIEF MAGISTRATE] GIVEN ON 12 JUNE 2014, TO ISSUE A WARRANT OF ARREST AGAINST HONOURABLE PETER O'NEILL, PRIME MINISTER OF PAPUA NEW GUINEA, FOLLOWING AN APPLICATION MADE BY A MEMBER OF THE POLICE FORCE. [SC REF 2, Q 1]

88. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

89. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes, for the same reasons we answered question 1 yes.

90. The Commissioner of Police, as head of the Police Force, which is a disciplined force, has an inherent and legitimate interest in the subject matter of all criminal investigations, including the issuance by the District Court of warrants of arrest. There are numerous scenarios in which the Commissioner might legitimately decide that the validity of a warrant ought to be challenged.

91. For the purposes of the application, in OS (JR) No 485 of 2014, by Commissioner Vaki and the Prime Minister for leave to apply for judicial review of the decision of the Chief Magistrate of 12 June 2014 to issue the warrant for the arrest of the Prime Minister, the Commissioner does have standing or sufficient interest to seek leave for judicial review of that decision.

Answer to question 5

92. Yes, the Commissioner of Police has a sufficient interest in the decision to issue the arrest warrant, to seek leave for judicial review of that decision.

QUESTION 6: WHETHER THE COMMISSIONER OF POLICE OR ANY OTHER MEMBER OF THE POLICE FORCE HAS POWER UNDER SECTION [197] OF THE CONSTITUTION TO DIRECT OR CONTROL ANOTHER MEMBER OF THE POLICE FORCE IN THE DISCHARGE OF HIS/HER FUNCTION UNDER SECTION 197(2) OF THE CONSTITUTION TO LAY, PROSECUTE OR WITHDRAW CHARGES IN RESPECT OF AN OFFENCE OR OFFENCES. [SC REF 2, Q 2]

93. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

94. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes, for the same reasons we answered question 1 yes.

95. The Commissioner of Police, as head of the Police Force, which is a disciplined force, has an inherent and legitimate interest in the subject matter of all criminal investigations, including the issuance by the District Court of warrants of arrest. There are numerous scenarios in which the Commissioner might legitimately decide that the validity of a warrant ought to be challenged.

Answer to question 6

96. Yes, the Commissioner of Police and other members of the Police Force have power under Section 197 of the Constitution to direct and control other members of the Force in the discharge of their functions to lay, prosecute or withdraw charges in respect of offences.

QUESTION 7: WHETHER THE COMMISSIONER OF POLICE HAS POWER UNDER SECTION 198 OF THE CONSTITUTION TO DIRECT OR CONTROL A MEMBER OF THE POLICE FORCE IN THE DISCHARGE OF HIS/HER FUNCTION UNDER SECTION 197(2) TO LAY, PROSECUTE OR WITHDRAW CHARGES IN RESPECT OF AN OFFENCE OR OFFENCES. [SC REF 2, Q 3]

97. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

98. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes, for the same reasons we answered question 1 yes.

99. Section 198 (Commissioner of Police) of the Constitution provides that the Commissioner of Police is responsible for the:

superintendence,
efficient organization, and
control

of the Police Force, in accordance with an Act of the Parliament.

100. The effect of Section 198 is to authorise and empower the Commissioner to direct and control each member of the Police Force in the discharge by that member of his or her powers, functions, duties and responsibilities as a member of the Police Force.

101. Section 197(2) of the Constitution provides that members of the Police Force, when laying, prosecuting or withdrawing charges for offences are not subject to direction or control by any person outside the Force. They are, however, subject to direction or control by persons within the Force. They are subject, at least, to the direction and control of the Commissioner who, when directing another member of the Force as to the laying, prosecution or withdrawal of criminal charges, will be (unless the contrary is proven in a particular case) legitimately exercising the powers of superintendence, organisation and control of the Force in accordance with Section 198.

102. It was suggested in the course of submissions by the parties arguing the negative case on this question that such an interpretation would allow too much power to be held by the Commissioner who would be able to overrule operational decisions in criminal matters for corrupt or other improper motives.

103. The answer to this concern is found elsewhere in the Constitution: in Division III.2 (leadership code). By Section 26(1)(h) (application of Division 2) the Commissioner is a leader and subject to the Leadership Code and to the jurisdiction of the Ombudsman Commission. If the Commissioner of Police is alleged or suspected to have committed misconduct in office when directing or controlling another member of the Police Force as to the laying, prosecution or withdrawal of charges, the Commissioner may be subject to investigation by the Ombudsman Commission. If the Ombudsman Commission finds a prima facie case that the Commissioner is guilty of misconduct in office it is obliged by Section 29 (prosecution of misconduct in office) of the Constitution to refer the matter to the Public Prosecutor for prosecution before a leadership tribunal. A Commissioner found guilty of misconduct in office may be dismissed from office.

Answer to question 7

104. Yes, the Commissioner of Police has power under Section 198 of the Constitution to direct and control other members of the Force in the discharge of their functions to lay, prosecute or withdraw charges in respect of offences.

QUESTION 8: WHETHER THE COMMISSIONER OF POLICE OR ANY OTHER MEMBER OF THE POLICE FORCE HAS POWER UNDER SECTION 197(2) [OF THE CONSTITUTION] TO DIRECT OR CONTROL ANOTHER MEMBER OF THE POLICE FORCE FROM EXECUTING A WARRANT OF ARREST ISSUED BY A COURT OF COMPETENT JURISDICTION. [SC REF 2, Q 4]

105. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

The affirmative case

106. The Prime Minister, the Commissioner of Police, the Attorney-General and the State argue the positive case on this question, namely:

yes, the Commissioner does have the power to direct or control other members of the Police Force regarding the execution of warrants of arrest that have been issued by a court; and that
yes, this power derives from Section 197(2) of the Constitution, which states:

107. They argue that:

execution of warrants of arrest is part and parcel of the performance by members of the Police Force of the primary functions of the Force set out in Section 197(1) of the Constitution: preserving peace and good order in the country and maintaining and enforcing the law in an impartial and objective manner;
as the Commissioner is responsible under Section 198 of the Constitution for the superintendence, efficient organisation and control of the Force, he has the power of direction and control over the execution of arrest warrants;
the Commissioner can, at his discretion, decide that a warrant should not be executed or that its execution should be delayed, and give an order to any member of the Force accordingly, even to the member who applied for the warrant;
the Commissioner retains control over the execution of an arrest warrant as, even though it may have been validly issued by a court of competent jurisdiction, an arrest warrant is not a court order and should not be regarded as being the equivalent of a court order.

The negative case

108. Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga argue the negative case, namely:

no, the Commissioner has no power to direct or control other members of the Police Force regarding the execution of warrants of arrest that have been issued by a court; and that
such a power is not derived from Section 197(2) of the Constitution or from any other law.

109. They argue that:

though execution of warrants of arrest is part and parcel of the performance by members of the Police Force of the primary functions of the Force, each member of the Police Force has a degree of independence in relation to the Commissioner as to the discharge of those functions;
if a warrant is directed at a particular member of the Police Force, that member, and also the Commissioner, are obliged to execute the warrant;
neither the member to whom the warrant is directed nor the Commissioner can decide that a warrant should not be executed or that its execution should be delayed;
an arrest warrant is an order of the court that issued it, and there is a duty imposed on the members to whom it is addressed, and also on the Commissioner, to obey it and to ensure that no order is given not to obey it.

The critical issue

110. We have already in our determination of other questions upheld a number of the propositions in support of the affirmative case: the Commissioner can challenge the validity of a warrant of arrest (questions 1, 5); the Commissioner has a high degree of direction and control over members of the Police Force in the discharge of their constitutional functions, including the laying, prosecution and withdrawal of criminal charges (questions 1, 6, 7). We have rejected a number of propositions put in support of the negative case, In particular we found no merit in the view that a member of the Police Force can decide independently what steps to take in a criminal investigation without being subject to direction or control by the Commissioner (questions 1, 6, 7).

111. However, our determination of earlier questions has not resolved what we see as the critical issue at the centre of question 8, which is whether a warrant of arrest is a court order, or the equivalent of a court order. If it is, and it is expressed in terms that demand obedience, we cannot see how it can be said that the Commissioner can direct or control other members of the Police Force to prevent its execution.

Is an arrest warrant a court order?

The 'no' argument: a warrant is not an order

112. The Prime Minister, the Commissioner of Police, the Attorney-General and the State argue that an arrest warrant is simply an authorisation given to the members of the Police Force to whom it is directed to do something – deprive persons of their liberty – that would otherwise be unlawful. It is not an order to arrest the person. It is an administrative authorisation, which by its nature imposes no obligation on any member of the Force to implement the warrant within any particular timeframe, or at all.

113. The question of whether and when to execute a warrant is always a matter of operational discretion to be exercised by the member(s) of the Police Force to whom it is directed; and in the exercise of that discretion, the member(s) concerned are subject to direction and control by the Commissioner. It is submitted that:

The issuance of a warrant of arrest is part of an administrative process – the process of a criminal investigation. It is not part of a judicial process.
The fact that the warrant is issued by a court does not mean that its issuance is part of the judicial process. Issuing a warrant involves the exercise by the court of an administrative function – not the exercise of judicial power.
Though a Magistrate issuing an arrest warrant is bound to act judicially in the sense that he or she must act fairly and with judicial detachment, the decision to issue the warrant does not involve performance of a judicial function.

114. A number of overseas cases have been cited in support of these propositions. For instance, the decisions of the High Court of Australia in Love v Attorney-General [1990] HCA 4; (1990) 169 CLR 307 and Ousley v The Queen [1997] HCA 49; (1997) 192 CLR 69.

115. The Prime Minister, the Commissioner of Police, the Attorney-General and the State also refer to the recent decision of Kariko J in Marape v Paraka (2014) N5740, in which his Honour stated:

The Police Commissioner has ultimate control of the Police Force. Section 198 Constitution states clearly that the superintendence and efficient organization of the police force is the responsibility of the Commissioner. Given that Commissioner Vaki, the person who controls the Police Force, the body sought to be restrained, consents to the restraining orders sought, the issue of balance of convenience may appear irrelevant in this instance. ...

Importantly though, I reiterate that the administration and control of the Police Force is vested in the Commissioner of Police under the Constitution. Administrative matters are for him to resolve and not this Court. The fact that the Commissioner agrees not to arrest the plaintiffs is a matter for him also. He does not need this Court's endorsement on how he should discharge his constitutional duties and functions.

116. It is also contended that the Arrest Act makes it clear, through Section 13 (execution of warrants), that an arrest warrant can be executed at the discretion of the member of the Police Force or other person to whom it is directed. Section 13 states:

Where a warrant is directed to a person he may, in accordance with Part IV., and with assistants if necessary, arrest the person against whom the warrant is issued.

117. It is also contended that there will occasionally be circumstances in which it would be improper to execute a warrant, for example the target of the warrant might be violently ill or in hospital; so it makes administrative and common sense for the question of whether and when, if at all, to execute a warrant, to be a matter of discretion.

The opinion of this Court: an arrest warrant can be an order

118. We are not persuaded by those propositions to the extent that would be necessary to conclude that a warrant of arrest should in every instance be regarded as a mere administrative authorisation or something separate and apart from a court order. We appreciate the persuasive authority represented by the overseas cases that have been cited. However those decisions must inevitably turn on their own facts and circumstances, in particular the statutory scheme that provided for the issuance of the arrest warrant in each case and also, most importantly, on the terms of each warrant.

119. We prefer the propositions advanced by Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga who argue that there is nothing in the nature or genesis of a warrant of arrest that prevents it from being regarded as an order of the court.

120. We do not accept that Section 13 of the Arrest Act makes the execution of a warrant a matter of discretion. The word "may" in that provision is properly regarded as an authorising word. We agree that an arrest warrant is indeed an authority to do something that would otherwise be unlawful. The use of the word "may" in Section 13 does not in our view necessarily confer discretion on the person to whom it is directed. This interpretation of Section 13 is complemented by reference to Section 274 (duty of members of Police Force) of the District Courts Act, which states:

All members of the Police Force shall obey the warrants, orders and directions of Magistrates granted, given or done, and shall perform their several offices and duties in respect of those offices under the pains and penalties to which a member of the Police Force is liable for neglect of duty.

121. We acknowledge that there will be occasionally situations in which the recipient of a warrant will find it not appropriate or proper to execute a warrant. If the target of the warrant is gravely ill or if for operational reasons a member of the Police Force decided that a warrant should not immediately be executed, it would be proper not to execute the warrant. However, the nature of the obligation to execute the warrant will depend on the wording of the warrant.

122. We do not accept the proposition that the decision of a court in the National Judicial System of Papua New Guinea to issue a warrant of arrest involves necessarily the exercise of an administrative, not a judicial, function. In Application by Herman Joseph Leahy (2006) SC855 the Supreme Court made the following remarks, in the context of debate about whether the decision of the District Court to commit or refuse to commit an accused person to trial is the exercise of an administrative or judicial function:

However, we have reservations about labelling the District Court's decision in that way. The Supreme Court (Pratt J, Bredmeyer J, Kaputin J) pointed out in Robert Kaki Yabara v The State [1984] PNGLR 378 that it is notoriously difficult and sometimes unhelpful to label decisions made by judicial officers so finely.

123. We take a similar approach here: putting a label on the decision to issue a warrant of arrest is a difficult task. It is far more significant to look at the warrant and read what is says. If a document is issued by a court in the National Judicial System – such as the District Court – and it is signed and sealed by a judicial officer (or an officer of the Court, purporting to have signed and sealed the document with the authority of the Court) and it contains orders that state expressly or impliedly that the orders must be obeyed: it should be regarded as a court order.

124. It is the terms of a warrant – the words used in it – that will be the best indicator of whether it is a court order or the equivalent of such an order.

The warrant of 12 June 2014

125. To illustrate this point we reproduce the terms of the arrest warrant issued by the Chief Magistrate that is at the centre of the consolidated references. It stated:

[NATIONAL EMBLEM]

Act Sec 8

Form 1

Reg Sec 101

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Arrest Act 1977

WARRANT FOR ARREST

To:

Chief Inspector (a) Timothy Gitua of National Fraud Squad
(b) Officer in charge of police at [sic]
(c) All officers and members of the Police Force

WHEREAS on the Information of Chief Inspector Timothy Gitua of National Fraud Squad

Dated June, 2014 is considered necessary by this court to arrest Hon Peter O'Neill, MP of Pangia Village, Ialibu, Southern Highlands Province.

(a) has committed an offence in Papua New Guinea; and

(b) his arrest in necessary---

To ensure his appearance in court to answer to the offence charge; or

To prevent the continuation or repetition of the offence or the commission of a further offence; or

To preserve the safety or welfare of members of the public or of him,

In respect of

"Hon Peter O'Neill, MP and Prime Minister of Papua New Guinea, being an holder of a Public Office, charged with the performance of his duty virtue of his office, did corruptly direct to obtain a monetary benefit for Paul Paraka Lawyers in the discharge of the duties of his office as the Prime Minister."

YOU ARE THEREFORE ORDERED to arrest the above named Hon Peter O'Neill MP

And bring him before the court to answer to the said Information and be further dealt with according to law.

Dated at Waigani the 12th day of June, 2014.

........ [signed] ........

Magistrate

District Court

*Place "X" in appropriate square.

** This form is not for use in proceedings in Local Court

126. The warrant contains two commands:

you are therefore ordered to arrest the above named Hon Peter O'Neill MP
and bring him before the court to answer to the said information and be further dealt with according to law.

127. Though no timeframe is given within which these commands must be met, the commands are in mandatory terms. In fact the word "ordered" qualifies both the command to "arrest the above named Hon Peter O'Neill MP" and the command to "bring him before the court to answer to the said information and be further dealt with according to law". Though the document is headed "WARRANT FOR ARREST", which connotes at first glance that it is simply an administrative authority for an arrest, the mandatory terms of the two commands make it clear that the document is something more than an authorisation: it is an order, demanding obedience.

128. The proposition that the document should be regarded as an order is reinforced by the introductory words used to explain why the court is giving those commands: "whereas on the information of Chief Inspector Timothy Gitua of National Fraud Squad dated June 2014, [it] is considered necessary by this court to arrest Hon Peter O'Neill MP ..." Those words indicate that the court – not just the informant – has considered the matter and that the court considers it necessary – not just desirable – to arrest Hon Peter O'Neill MP.

129. It is also relevant to assess how a reasonable person in Papua New Guinea would regard this warrant. By a reasonable person, we mean a person with some basic knowledge of how courts operate and the role of the courts in the dispensation of justice and enforcement of the law and the notion of the Rule of Law. Would he or she regard it as simply an administrative authorisation, to allow Chief Inspector Gitua and "all officers and members of the Police Force" at their discretion to arrest Hon Peter O'Neill MP and/or bring him before the court? Or would he or she regard it as an order to arrest him and bring him before the court? We think the latter would be the response of the reasonable person.

130. Our view is that the warrant at the centre of these references is in fact and law, for all intents and purposes, an order of the District Court and that it must be obeyed by those persons to whom it is directed.

Can the Commissioner direct or control other members of the Police Force regarding the execution of warrants of arrest?

131. This is the crux of question 8. Can the Commissioner order a member of the Police Force not to execute a warrant? Or delay its execution? Or not to execute it without his approval? Or frustrate its execution by, for example, withdrawing funding from the division of the Force which, in effect, applied for the warrant?

132. The answer to these questions depends on the terms of the warrant. If the warrant is expressed as simply an administrative authorisation, not as an order, yes, the Commissioner can direct and control the execution of the warrant. If the warrant contains commands that demand obedience, the warrant is an order and the Commissioner cannot direct or control the execution of the warrant.

133. In our opinion the warrant issued by the Chief Magistrate on 12 June 2014 is an order of the District Court and the Commissioner therefore has no power to direct or control Chief Inspector Gitua as to how and when he should execute it.

Answer to question 8

134. No, a warrant of arrest will, in most cases – but subject always to the terms of the particular warrant – be a court order directed at certain members of the Police Force to arrest a particular person. The Commissioner has no power to direct a member of the Police Force not to comply with a court order, including an arrest warrant.

QUESTION 9: WHETHER, HAVING REGARD TO THE PROVISIONS OF THE CONSTITUTION INCLUDING SECTIONS 197 AND 198 THEREOF AND THE PROVISIONS OF THE POLICE ACT, 1998, THE COMMISSIONER OF POLICE MAY CHALLENGE THE VALIDITY OF A WARRANT OF ARREST ISSUED BY A COURT OF COMPETENT JURISDICTION, INCLUDING THE DISTRICT COURT ON APPLICATION OF ANOTHER MEMBER OF THE POLICE FORCE. [SC REF 2, Q 5]

135. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

136. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes, for the same reasons we answered question 1 yes.

137. The Commissioner of Police, as head of the Police Force, which is a disciplined force, has an inherent and legitimate interest in the subject matter of all criminal investigations, including the issuance by the District Court of warrants of arrest. There are numerous scenarios in which the Commissioner might legitimately decide that the validity of a warrant ought to be challenged.

Answer to question 9

138. Yes, the Commissioner of Police may challenge the validity of an arrest warrant issued by the District Court on application by another member of the Police Force.

QUESTION 10: WHETHER THE COMMISSIONER OF POLICE HAS AUTHORITY TO MAKE DECISIONS OR ISSUE DIRECTIONS OR ORDERS IN RELATION TO MEMBERS OF THE POLICE FORCE. [SC REF 5, Q 1]

139. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

140. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes, for the same reasons we answered question 1 yes.

141. Section 198 of the Constitution provides that the Commissioner of Police is responsible for the

superintendence,
efficient organization, and
control

of the Police Force, in accordance with an Act of the Parliament.

142. The effect of Section 198 is to authorise and empower the Commissioner to direct and control each member of the Police Force in the discharge by that member of his or her powers, functions, duties and responsibilities as a member of the Police Force. We are unable to identify any exceptions to that principle.

Answer to question 10

143. Yes, the Commissioner of Police has authority to make decisions or issue directions or orders in relation to members of the Police Force.

QUESTION 11: WHETHER, IN APPROPRIATE CASES, THE FUNCTION OF THE POLICE FORCE TO LAY, PROSECUTE OR WITHDRAW CHARGES IN RESPECT OF OFFENCES MAY BE SUBJECT TO DIRECTION OR CONTROL BY THE COMMISSIONER OF POLICE. [SC REF 5, Q 2]

144. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

145. We agree with the position of the Prime Minister, the Commissioner of Police, the Attorney-General and the State that this question must be answered yes, for the same reasons we answered questions 1 and 7 yes.

146. Section 198 of the Constitution provides that the Commissioner of Police is responsible for the:

superintendence,
efficient organization, and
control

of the Police Force, in accordance with an Act of the Parliament.

147. The effect of Section 198 is to authorise and empower the Commissioner to direct and control each member of the Police Force in the discharge by that member of his or her powers, functions, duties and responsibilities as a member of the Police Force, including the laying, prosecution or withdrawal of criminal charges.

Answer to question 11

148. Yes, in appropriate cases, the function of the Police Force to lay, prosecute or withdraw charges in respect of offences may be subject to direction or control by the Commissioner of Police.

QUESTION 12: DO SECTIONS 155(4), 155(6) AND 172 OF THE CONSTITUTION, OR ANY OTHER PROVISION OR PROVISIONS OF THE CONSTITUTION, AUTHORISE THE NATIONAL COURT TO PUNISH FOR CONTEMPT, A BREACH OF AN ADMINISTRATIVE ACTION OR DETERMINATION BY A MAGISTRATE OF THE DISTRICT COURT? [SC REF 5, Q 3]

149. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
No	No	No	No	Yes	Yes

The negative case

150. The Prime Minister, the Commissioner of Police, the Attorney-General and the State argue the negative case on this question, namely:

no, the National Court cannot punish for contempt, the breach of an administrative action or decision of a District Court Magistrate.

151. They argue that contempt can only be committed, in relation to any court, if there are court proceedings on foot. An administrative action or decision of a Magistrate involves the exercise of administrative, not judicial, functions. There may be remedies to address the breach of such administrative determinations but punishment for contempt of court is not one of them.

The affirmative case

152. Chief Supt Damaru and Chief Insp Gitua and Sir Toami Kulunga argue the affirmative case, namely:

yes, the National Court can punish for contempt, the breach of an administrative action or decision of a District Court Magistrate.

153. They argue that the categories of contempt of court are never closed and that the elements of the offence of contempt of court do not include a requirement to show that the conduct of the contemnor was connected to any particular court proceedings.

The critical issue

154. We have already in our determination of question 3 decided that the National Court has jurisdiction to punish for contempt of the District Court. The issue raised by the present question is what has to be proven to establish that contempt of the District Court has occurred. The critical issue is whether the breach of an administrative action or determination amount to a contempt of court.

155. We answer this question in the affirmative as we find nothing in the elements of contempt to demonstrate that a direct connection to ongoing court proceedings is a necessary element of the offence of contempt of court. The elements of contempt were set out by the Supreme Court in Andrew Kwimberi v The State (1998) SC545 and have been adopted and applied by the National Court in numerous cases since then. The elements of the offence were correctly explained by the National Court in Meten v Seneka (2010) N4462, in these terms:

Under the underlying law of Papua New Guinea – ie the unwritten law, consisting of the common law and customary law, which form part of the laws of Papua New Guinea under Section 9 (the laws) of the Constitution – the elements of the offence are very broad; so it is often said that the categories of contempt are never closed. The elements of the underlying law offence are: any act or omission, committed in the face of the court or outside court, which is intended to or calculated to or likely to interfere or obstruct the fair or due administration of justice (Andrew Kwimberi v The State (1998) SC545).

156. It was argued before us, in support of the affirmative case on this question, that dicta of Sakora J in Stephen John Rose v Neville Devete (2007) N3327, supported the necessity to prove a direct connection between the alleged contumacious conduct and some specific court case. It was argued that at least two decisions of the High Court of Australia (James v Robinson [1963] HCA 32; (1963) 109 CLR 593 and Sorby v The Commonwealth [1983] HCA 10; (1983) 152 CLR 281) also supported that proposition. With respect, we consider that none of those decisions support the proposition, at least not expressly.

157. We refer again (as we did in question 3) to Sakora J's authoritative exegesis of the categories of contempt of court in Peter Luga v Richard Sikani (2002) N2285:

improper behaviour in a courtroom;
improper influencing of participants in proceedings;
contempt by publication;
failure to comply with an order of the court;
other forms of interference with the administration of justice.

158. Categories (1), (2) and (4) entail a direct connection to ongoing court proceedings. Categories (3) and (5) do not. It might be said that most offences of contempt of court are committed in relation to ongoing court proceedings, but that does not mean that there must be ongoing court proceedings in order for contempt of court to be committed. It is conceivable that breach of an administrative determination of court would be so serious, manifest or egregious as to interfere in the due administration of justice. It is conceivable that, in an appropriate case, breach of an administrative determination of a District Court Magistrate would amount to contempt of court.

Answer to question 12

159. Yes, the Constitution authorises the National Court to, in an appropriate case, punish for contempt, the breach of an administrative action or determination by a Magistrate of the District Court.

QUESTION 13: WHETHER, IN APPROPRIATE CASES, THE COMMISSIONER OF POLICE MAY MAKE DECISIONS OR ISSUE DIRECTIONS OR ORDERS IN RELATION TO A WARRANT OF ARREST: (a) BEING WITHDRAWN; (B) NOT BEING EXECUTED. [SC REF 5, Q 4]

160. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	No	No

161. Put another way, this question asks whether the Commissioner of Police can decide, direct or order that a warrant of arrest:

(a) be withdrawn;

(b) not be executed.

Can the Commissioner decide that a warrant be withdrawn?

162. The answer is yes, for the reasons we stated in question 1 that the Commissioner can challenge the issuance of warrant of arrest. The Commissioner has no unilateral power to withdraw the warrant. He would need to make an application to the court that issued the warrant, to withdraw, set aside or dissolve the warrant.

Can the Commissioner decide not to execute a warrant?

163. The answer will be no, in most cases, for the reasons set out in our determination of question 8. However, if the warrant is expressed as a mere authority to arrest a person, as distinct from an order to arrest them, the Commissioner could lawfully decide not to execute the warrant, and give an order to that effect.

Answer to question 13(a)

164. Yes, the Commissioner of Police can decide to make an application to the Court to withdraw a warrant of arrest, and can issue directions and orders in that regard.

Answer to question 13(b)

165. No, the Commissioner of Police cannot in most circumstances decide not to execute a warrant, nor can the Commissioner issue directions and orders not to execute a warrant, as in most circumstances an arrest warrant is tantamount to a court order requiring that it be executed forthwith.

QUESTION 14: WHETHER THE NATIONAL COURT OF JUSTICE OR DISTRICT COURT HAS AUTHORITY TO PUNISH THE COMMISSIONER OF POLICE FOR CONTEMPT OF COURT FOR FAILING TO EXECUTE OR PREVENTING THE EXECUTION OF:

(a) A VALID WARRANT FOR ARREST; AND
(b) AN INVALID WARRANT FOR ARREST,

ISSUED BY A DISTRICT COURT MAGISTRATE. [SC REF 5, Q 5]

166. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
No	No	No	No	Yes	Yes

167. The answer to both questions is pre-determined by our answers to questions 2, 3 and 8, but will turn on the facts of a particular case.

168. If a warrant of arrest, such as the warrant at the centre of these references, is expressed as a court order, then irrespective of any subsequent judicial determination as to its validity, the Commissioner of Police can be punished for contempt of court if he fails to execute the warrant or prevents its execution. If the warrant is an order, it must be obeyed unless and until it is set aside by another court order.

Answer to question 14(a)

169. Yes, the National Court, but not the District Court, has authority to punish the Commissioner of Police for contempt of court for failing to execute or preventing execution of a valid warrant of arrest.

Answer to question 14(b)

170. Yes, the National Court has authority to punish the Commissioner of Police for contempt of court for failing to execute or preventing execution of a warrant of arrest, even if it is subsequently determined that the warrant was invalid.

QUESTION 15: WHETHER A MEMBER OF THE REGULAR CONSTABULARY BRANCH REQUIRES THE PERMISSION OF THE COMMISSIONER OF POLICE TO ACCEPT OR CONTINUE TO HOLD AN OFFICE IN OR UNDER THE GOVERNMENT OR ANY PUBLIC OR MUNICIPAL CORPORATION. [SC REF 5, Q 6]

171. The positions of the parties are:

Prime Minister	Commissioner Of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	Yes	Yes

172. We agree with all parties that the answer is yes, due to the plain and unequivocal wording of Section 114(1)(a) (outside interests) of the Police Act 1998.

173. Section 114 of the Police Act states:

(1) Except with the permission of the Commissioner, which may at any time be withdrawn, a member of the Regular Constabulary Branch shall not—

(a) accept or continue to hold an office in or under the Government or any public or municipal corporation; or

(b) accept or continue to hold or discharge the duties of, or be employed in a paid office in connection with any banking, insurance, agricultural, mining, mercantile or other commercial business, whether carried on by a corporation, a firm or an individual; or

(c) engage in or undertake any such business as principal or agent; or

(d) engage in or continue in the private practice of a profession or trade, or enter any employment whether remunerative or not, with any person, company or firm who or which is so engaged; or

(e) accept or engage in any remunerative employment otherwise than in connection with his duties in the Force.

(2) Subject to the succeeding provisions of this section, Subsection (1) does not prevent a member of the Regular Constabulary Branch from becoming a member or shareholder only of an incorporated company or of a company or society of persons registered under a law of the country or elsewhere, but a member of the Branch shall not take part in the conduct of the business of the company or society otherwise than by the exercise of his right to vote as a member or shareholder.

(3) Except with the written consent of the Commissioner, a member of the Regular Constabulary Branch shall not, personally or by an agent—

(a) hold shares in a company or society of persons operating in the country; or

(b) acquire land in the country, other than land on which a building is, or is to be, erected that is to be occupied by that member as a residence or as a dwelling house for occasional use by that member.

(4) Subsection (3) does not operate so as to prevent a member of the Regular Constabulary Branch from acquiring customary land by devolution.

(5) Notwithstanding this section, a member may, with the consent of the Commissioner, (which consent may at any time be withdrawn) act as a director of a co-operative company.

(6) A member aggrieved by a decision by the Commissioner to decline or withdraw any consent under this section may appeal to the Minister.
Answer to question 15

174. Yes, a member of the Regular Constabulary Branch requires the permission of the Commissioner of Police to accept or continue to hold an office in or under the Government or any public or municipal corporation.

QUESTION 16: IF THE ANSWER TO QUESTION 15 IS IN THE AFFIRMATIVE, MAY THE COMMISSIONER OF POLICE WITHDRAW SUCH PERMISSION AT ANY TIME? [SC REF 5, Q 7]

175. The positions of the parties are:

Prime Minister	Commissioner of Police	Attorney-General	The State	M Damaru & T Gitua	Sir Toami Kulunga
Yes	Yes	Yes	Yes	Yes	Yes

176. We agree with all parties that the answer is yes, due to the plain and unequivocal wording of Section 114(1)(a) of the Police Act 1998.

Answer to question 16

177. Yes, the Commissioner of Police can withdraw at any time permission given to a member of the Regular Constabulary Branch to continue to hold an office in or under the Government or any public or municipal corporation.

SUMMARY OF ANSWERS

178. Our opinion on the 16 questions of constitutional interpretation and application is summarised in the following table.

ANSWERS TO 16 QUESTIONS

No	Question	Answer
1	Whether having regard to the provisions of the Constitution including Sections 197 and 198 thereof and the provisions of the Police Act the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer.	Yes
2	Does the expression "Except, subject to any Act of the Parliament to the contrary" appearing in Section 37(2) of the Constitution limit the contempt powers of the District Court to only those contempt of court offences that are expressly stipulated in Section 277 of the District Courts Act?	Yes
3	If the answer to Question 1 is "Yes", does the National Court have jurisdiction to deal with contempt offences that fall outside of Section 277 of the District Courts Act, given to it by Sections 155(4) and (6), 166 and 172 of the Constitution?	Yes
4	If the answer to Question 2 is "No", what is the procedure to be applied by the District Court in dealing with contempt offences that fall outside of Section 277 of the District Courts Act?	Not necessary to answer
5	Whether the First Plaintiff [Geoffrey Vaki] in his capacity as Commissioner of Police has standing or sufficient interest to seek leave for judicial review of the decision of the First Defendant [the Chief Magistrate] given on 12 June, 2014, to issue a Warrant of Arrest against Honourable Peter O'Neill, Prime Minister of Papua New Guinea following an application made by a member of the Police Force.	Yes
6	Whether the Commissioner of Police or any other member of the Police Force has power under Section [197] of the Constitution to direct or control another member of the Police Force in the discharge of his/her function under Section 197(2) of the Constitution to lay, prosecute or withdraw charges in respect of an offence or offences.	Yes
7	Whether the Commissioner of Police has power under Section 198 of the Constitution to direct or control a member of the Police Force in the discharge of his/her function under Section 197(2) to lay, prosecute or withdraw charges in respect of an offence or offences.	Yes
8	Whether the Commissioner of Police or any other member of the Police Force has power under Section 197(2) [of the Constitution] to direct or control another member of the Police Force from executing a warrant of arrest issued by a Court of competent jurisdiction.	No
9	Whether, having regard to the provisions of the Constitution including Sections 197 and 198 thereof and the provisions of the Police Act 1998, the Commissioner of Police may challenge the validity of a warrant of arrest issued by a court of competent jurisdiction, including the District Court on application of another member of the Police Force.	Yes
10	Whether the Commissioner of Police has authority to make decisions or issue directions or orders in relation to members of the Police Force.	Yes
11	Whether, in appropriate cases, the function of the Police Force to lay, prosecute or withdraw charges in respect of offences may be subject to direction or control by the Commissioner of Police.	Yes
12	Do Sections 155(4), 155(6) and 172 of the Constitution, or any other provision or provisions of the Constitution, authorise the National Court to punish for contempt, a breach of an administrative action or determination by a magistrate of the District Court?	Yes
13	Whether, in appropriate cases, the Commissioner of Police may make decisions or issue directions or orders in relation to a warrant of arrest: (a) being withdrawn; (b) not being executed.	(a) Yes (b) No
14	Whether the National Court of Justice or District Court has authority to punish the Commissioner of Police for contempt of Court for failing to execute or preventing the execution of: (a) a valid warrant for arrest; and (b) an invalid warrant for arrest, issued by a District Court Magistrate.	(a) Yes (b) Yes
15	Whether a member of the Regular Constabulary Branch requires the permission of the Commissioner of Police to accept or continue to hold an office in or under the Government or any public or municipal corporation.	Yes
16	If the answer to question 15 is in the affirmative, may the Commissioner of Police withdraw such permission at any time?	Yes

179. For ease of reference we restate the answers to the questions arising in each reference in the following tables.

SC REF NO 2 OF 2014

No	Question	Answer
1	Whether the First Plaintiff [Geoffrey Vaki] in his capacity as Commissioner of Police has standing or sufficient interest to seek leave for judicial review of the decision of the First Defendant [the Chief Magistrate] given on 12 June, 2014, to issue a Warrant of Arrest against Honourable Peter O'Neill, Prime Minister of Papua New Guinea following an application made by a member of the Police Force.	Yes
2	Whether the Commissioner of Police or any other member of the Police Force has power under Section [197] of the Constitution to direct or control another member of the Police Force in the discharge of his/her function under Section 197(2) of the Constitution to lay, prosecute or withdraw charges in respect of an offence or offences.	Yes
3	Whether the Commissioner of Police has power under Section 198 of the Constitution to direct or control a member of the Police Force in the discharge of his/her function under Section 197(2) to lay, prosecute or withdraw charges in respect of an offence or offences.	Yes
4	Whether the Commissioner of Police or any other member of the Police Force has power under Section 197(2) [of the Constitution] to direct or control another member of the Police Force from executing a warrant of arrest issued by a Court of competent jurisdiction.	No
5	Whether having regard to the provisions of the Constitution including Sections 197 and 198 thereof and the provisions of the Police Act, 1998, the Commissioner of Police may challenge the validity of a warrant of arrest issued by a court of competent jurisdiction, including the District Court on application of another member of the Police Force.	Yes
6	Whether having regard to the provisions of the Constitution including Sections 197 and 198 thereof and the provisions of the Police Act the Commissioner of Police may challenge the validity of a warrant of arrest issued by a District Court Magistrate on the application of a police officer.	Yes

SC REF NO 3 OF 2014

No	Question	Answer
1	Does the expression "Except, subject to any Act of the Parliament to the contrary" appearing in Section 37(2) of the Constitution limit the contempt powers of the District Court to only those contempt of court offences that are expressly stipulated in Section 277 of the District Courts Act?	Yes
2	If the answer to Question 1 is "Yes", does the National Court have jurisdiction to deal with contempt offences that fall outside of Section 277 of the District Courts Act, given to it by Sections 155(4) and (6), 166 and 172 of the Constitution?	Yes
3	If the answer to Question 1 is "No", what is the procedure to be applied by the District Court in dealing with contempt offences that fall outside of Section 277 of the District Courts Act?	Not necessary to answer

SC REF NO 5 OF 2014

No	Question	Answer
1	Whether the Commissioner of Police has authority to make decisions or issue directions or orders in relation to members of the police force.	Yes
2	Whether, in appropriate cases, the function of the Police Force to lay, prosecute or withdraw charges in respect of offences may be subject to direction or control by the Commissioner of Police.	Yes
3	Do Sections 155(4), 155(6) and 172 of the Constitution, or any other provision or provisions of the Constitution, authorise the National Court to punish for contempt, a breach of an administrative action or determination by a magistrate of the District Court?	Yes
4	Whether, in appropriate cases, the Commissioner of Police may make decisions or issue directions or orders in relation to a warrant of arrest: (a) being withdrawn; (b) not being executed.	(a) Yes (b) No
5	Whether the National Court of Justice or District Court has authority to punish the Commissioner of Police for contempt of Court for failing to execute or preventing the execution of: (a) a valid warrant for arrest; and (b) an invalid warrant for arrest, issued by a District Court Magistrate.	(a) Yes (b) Yes
6	Whether a member of the Regular Constabulary Branch requires the permission of the Commissioner of Police to accept or continue to hold an office in or under the Government or any public or municipal corporation.	Yes
7	If the answer to question 6 is in the affirmative, may the Commissioner of Police withdraw such permission at any time?	Yes

COSTS

180. The Supreme Court can in appropriate cases make an order for costs in constitutional reference proceedings (Reference by the Morobe Provincial Executive (2012) SC1202). We will consider making an order for costs if any of the parties makes an application for costs, which shall be filed and served within 14 days after the date of this judgment.

Judgment accordingly.

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