Constitution, Section 28(5), In re [2017] PGSC 48; SC1645 (22 December 2017)

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IN THE MATTER OF THE CONSTITUTION, SECTION 28(5) AND
THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES
OF LEADERSHIP, SECTIONS 27(4) AND 28(1)

Waigani: Injia CJ, Kirriwom J, Kandakasi J, Batari J, Cannings J
2017: 30 August, 22 December

CONSTITUTIONAL LAW – Constitution, Division III.2 (leadership code) – Organic Law on the Duties and Responsibilities of Leadership, Part V (enforcement) – Section 27(4) (tribunals) – whether amendment of Section 27(4) requiring leadership tribunals to make due inquiry “with legal formalities and strict compliance with the rules of evidence ...” is inconsistent with Constitution, Section 28(5): tribunal proceedings “are not judicial proceedings”.

CONSTITUTIONAL LAW – Constitution, Division III.2 (leadership code) – Organic Law on the Duties and Responsibilities of Leadership, Part V (enforcement) – Section 28 (suspension) – timing of suspension of a leader whose matter has been referred to a leadership tribunal.

The Ombudsman Commission filed a Special Reference to the Supreme Court under Section 19 of the Constitution seeking the Court’s opinion on three questions of interpretation and application of the Constitutional Laws regarding enforcement of the Leadership Code. Questions 1 and 2 related to a 2006 amendment to Section 27(4) (tribunals) of the Organic Law on the Duties and Responsibilities of Leadership, by which a Leadership Tribunal is now required to “make due inquiry into the matter referred to it, with legal formalities and strict compliance with the rules of evidence and the provisions of the Evidence Act”. Question 1 asked whether the amendment is inconsistent with Section 28(5) of the Constitution, which states that Leadership Tribunal proceedings “are not judicial proceedings”, and therefore invalid and ineffective. Question 2 asked, if question 1 is answered no, what the phrase “with legal formalities and strict compliance with the rules of evidence ...” means. Question 3 related to the timing of suspension from duty of a leader whose matter is referred to a Leadership Tribunal, requiring interpretation of Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership, which states: “Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty”. The question was whether a leader is suspended: (a) when the Public Prosecutor refers the leader to the appropriate authority; (b) when the appropriate authority appoints a tribunal; (c) when the Public Prosecutor presents the reference to the tribunal; or (d) in circumstances other than the above. The Prime Minister and the Speaker of the National Parliament were granted leave to intervene and designated as first and second interveners respectively. The Ombudsman Commission (the referrer) argued that the questions be answered (1) yes; (2) no change to the standard of proof; (3) (d): when the Ombudsman Commission refers the matter to the Public Prosecutor. The Prime Minister argued that the questions be answered (1) no; (2) the criminal standard of proof should apply if the allegation of misconduct in office is tantamount to a criminal offence; (3)(c): when the Public Prosecutor refers the matter to the tribunal. The Speaker argued that the questions be answered (1) no; (2) the strict rules of evidence shall apply; (3)(d): the moment the Public Prosecutor makes the decision to refer a leader to a leadership tribunal.

Question 1: by the Court: yes, the 2006 amendment to Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is invalid, ineffective and unconstitutional.

Question 3: by 3:2 majority (Injia CJ, Batari J and Cannings J; Kirriwom J and Kandakasi J dissenting): suspension of a leader takes effect automatically by operation of law when the Public Prosecutor refers the matter (comprising the allegations of misconduct in office and the Ombudsman Commission’s statement of reasons) to the tribunal at a public hearing.

Application by Herman Joseph Leahy (2006) SC855
Application by Sir Makena Geno (No 1) (2015) SC1455
Application by Sir Makena Geno (No 2) (2016) SC1581
Eremas Wartoto v The State (2015) SC1411
Gelu & Paraka v Sheehan (2013) N5498
In the Matter of Grand Chief Sir Michael Somare (2011) N4224
Kamit v Cooke QC (2003) N2369
Peipul v Sheehan (2002) SC706
PLAR No 1 of 1980 [1980] PNGLR 326
Pruaitch v Manek (No 1) (2010) SC1052
Pruaitch v Manek (No 2) (2011) SC1093
Re Gerard Sigulogo [1988-89] PNGLR 384
Re Hon Michael Nali MP (2003) N2399
Re James Eki Mopio [1981] PNGLR 416
Sasau v PNG Harbours Board (2006) N3253
SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
SCR No 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693
SCR No 2 of 1982; Re Opai Kunangel [1991] PNGLR 1
Somare v Manek [2011] 1 PNGLR 220

This is the determination of three questions of constitutional interpretation and application referred to the Supreme Court by the Ombudsman Commission under Section 19(1) of the Constitution.

V L Narokobi, M Efi & P R Koralyo, for the Referrer
H Maliso, for the First Intervener
G M Egan & K R Kawat, for the Second Intervener

1. INJIA CJ: This is a Special Reference brought by the Ombudsman Commission under Section 19 of the Constitution. The reference contains three constitutional questions for this Court’s opinion regarding certain powers and functions of the Ombudsman Commission, the Public Prosecutor and a Leadership Tribunal established under Section 28 of the Constitution and Section 27(7) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) as amended by the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 (Amendment Law).

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:

3. The first and second questions relate to an amendment to Section 27(4) of the OLDRL. The Amendment Law repealed in part Section 27(4) of the OLDRL by repealing the expression “without regard to legal formalities or the rules of evidence” and substituting it with the expression “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48)”. The question is whether the amendment is consistent with Section 28(5) of the Constitution.

4. The third question arises from three conflicting decisions of the Supreme Court on a point of law with regard to the time when suspension of a leader under Section 28(1) of the OLDRL takes effect, namely Pruaitch v Manek (No 1) (2010) SC1052, Pruaitch v Manek (No 2) (2011) SC1093 and Somare v Manek [2011] 1 PNGLR 220. In those decisions, the Supreme Court constituted by different Judges was of the same view that suspension was automatic by operation of law but differed on when the suspension took effect. In Pruaitch v Manek (No 1) the Supreme Court held that suspension occurred when the Chief Justice appointed the appropriate Leadership Tribunal. In Somare v Manek, the Supreme Court held that suspension occurred when the Public Prosecutor requested the Chief Justice to appoint the appropriate Leadership Tribunal. In Pruaitch v Manek (No 2), the Supreme Court held that suspension occurred when the Public Prosecutor actually presented the charges of misconduct in office and the statement of reasons to the appropriate Leadership Tribunal when it convened to inquire into the matter.

5. The answers to the three questions involve consideration of various provisions of the Constitution, the OLDRL and the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders (OLGRICOH). I have had the benefit of reading the draft judgments of Justice Kirriwom and Justice Cannings. I am indebted to them for saving me a great deal of work in setting out the relevant provisions of the Constitutional Laws, the issues raised in the Reference and the arguments of the parties. I adopt their exposition on these matters.

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

6. I agree with the reasons and conclusions reached by Justice Kirriwom and Justice Cannings on this question with additional remarks of my own. I would also answer the question in the affirmative and declare the Amendment Law unconstitutional and invalid.

7. The Amendment Law is said to offend Section 28(5) of the Constitution. I reproduce in full Section 28 and Section 29 of the Constitution as those provisions are relevant to this question. They appear in the following terms:

(a) may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b) shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and

(c) shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(e) may create offences (including offences by persons to whom this Division applies and offences by other persons); and

(f) shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

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

(ii) are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

(h) may make any other provision that is necessary or convenient for attaining the objects of this Division.

(1A) An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that—

(a) there was no serious culpability on the part of a person found guilty of misconduct in office; and

it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

(2) Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

(3) For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"—

(i) a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or

(ii) a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

(b) in relation to a person holding any other office to which this Division applies—means the appropriate appointing authority.

(4) An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5) Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and—

(a) no such proceedings are a bar to any other proceedings provided for by law; and

(b) no other proceedings provided for by law are a bar to proceedings under that paragraph. [Underlining is my emphasis.]

(1) Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).

(2) If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead. [Underlining is my emphasis.]

8. The intention and purpose behind the Amendment Law is found in the speech of the Hon Francis Kunai MP who introduced the bill for debate in Parliament. He said:

Mr Speaker, you will note my proposed amendment that the thrust of this alternative case to ensure that the tribunal considering the evidence before it must be credible and substantive in nature, as allowed under the Evidence Act Chapter 48.

Currently, we have tribunals considering evidence provided by Ombudsman Commission, which in many cases have not complied with the rules of evidence as stipulated under the Evidence Act Chapter 48. Subsequently we have seen instances where tribunals have been dragging on for months ending up with financial loss by our leaders. This does not imply that we are above the law and therefore should not be prosecuted.

Mr Speaker, that is not my contention. We, whether big or small, we must face the same law and be treated accordingly. However, when we saw the principles of natural justice must be seen to be applied and the tribunal being considered must be in compliance with the Evidence Act Chapter 48. To allow any tribunal to consider evidence without regard to legal formalities or the rules of evidence is to be absolutely biased and a total abuse of principles of justice.

Mr Speaker, members of Parliament would agree with me that with these arrangements, many of us including those already referred to by the Ombudsman Commission will have to face the under bearing consequences.

Mr Speaker, my proposed amendment, I hope would be circulated to the appropriate authorities concerned that before putting our leaders under the microscope, they should be content that evidence exhibited should be very credible, substantive and conclusive within the rules of evidence.

9. The house was divided during the debates and on the votes. The majority that supported the amendment made brief speeches adopting the reasons given by Mr Kunai. Those who opposed the bill did not speak much except to refer to the position taken by their respective political parties.

10. The purpose of the amendment then was to bring more fairness to leaders in the proceedings before the tribunal so that leaders were tried and found guilty on substantive and credible evidence that would be admitted applying formal rules of procedure and evidence and the Evidence Act. The application of OLDRL, Section 27(4) by Leadership Tribunals was considered to be “absolutely biased” against leaders and a “total abuse of the principles of natural justice”.

11. Section 28(5) of the Constitution makes it clear that proceedings before a Leadership Tribunal “are not judicial proceedings” and a leader who is the subject of such proceedings is not immune from other proceedings for the same matter under any other law or that proceedings against the leaders under any other law are not a bar to proceedings over the same matter before the tribunal. It is necessary to understand proceedings that are “not judicial proceedings” and its exact opposite, proceedings that are “judicial proceedings”. A Leadership Tribunal is a form of statutory tribunal that is charged by law with performing administrative functions. Its proceedings are, as Constitution, Section 28(5) says, not judicial proceedings. The term judicial proceedings describes the proceedings before a Court of Law. Those expressions describe the distinctive nature of the proceedings conducted by a statutory tribunal (tribunals) and those conducted by a Court of Law (Court).

12. The Constitution and the OLDRL do not define the expression “judicial proceedings” and “proceedings that are not judicial”. Recourse to the general law is necessary to understand what these expressions mean, even though they are well known concepts and generally understood by legislators, courts and lawyers.

13. The creation, powers and functions of a tribunal are the subject of administrative law and Constitutional law. Legal literature and case law on administrative law in common law jurisdictions have struggled with drawing fine distinctions along the different types of tribunals with regard to the nature and character of an inquiry or investigation conducted by them. This has led to some confusion as to the characteristics of administrative tribunals over time and that confusion continues to this day. The confusion is compounded by the evolution of a special type of tribunal known as “quasi-judicial tribunal” that brings a tribunal within the reach of the Court. The confusion is further compounded by some statutes that confer the “quasi-judicial” function of tribunals in the Courts; and, in some instances, the quasi-judicial tribunals are regarded as “judicial” and they conduct “judicial proceedings”.

14. For purposes of answering the question posed in the Reference, I make some general observations regarding the essential characteristics of two common types of tribunals and the Courts. Those two types are “administrative tribunals” and “quasi-judicial tribunals”.

15. I commence my observations with an overarching statement on the difference between statutory tribunals and the Courts. A tribunal and a Court are creatures of statute. A tribunal is not a Court, a Court is not a tribunal either. Their difference is evident from the distinctive names: “Tribunal” and “Court”. Tribunals fall into two main categories: an ordinary tribunal (“administrative tribunal”) and a “quasi-judicial tribunal”. A tribunal is part of the Executive and is answerable to the Executive as to how it exercises its jurisdiction. The Court is independent of the Executive. A decision reached by a tribunal is not final until it is effected by the Executive whereas a decision of the Court is final and self-executing. A proceeding before a statutory tribunal is not a judicial proceeding; it is an “administrative inquiry” or “quasi-judicial proceeding”. A proceeding before a Court is a “judicial proceeding”. The function of a tribunal is to “inquire into” and “investigate” the facts pertaining to an allegation of wrongdoing and establish if those facts have been established and the law breached and to make the appropriate report and recommendation to the Executive who will take the appropriate action on the report. The Court sits to “hear” and “determine” the charge or complaint brought by a person and if the complaint is proved, grant the appropriate remedy that is available under law.

16. The function of an administrative tribunal is largely investigative. It is given no power to make any conclusive findings. It has no power to make a decision on anything. It makes findings of fact to enable a decision to be made by the Executive. An administrative tribunal is constituted by persons in positions of authority and possess special knowledge and skill on the subject matter of the investigation or inquiry. The law imposes no obligation on administrative tribunals to observe the principles of natural justice in conducting its inquiry or investigation unless the tribunal is given power to make findings that will lead to a decision to be made by the Executive that will determine a person’s legal rights or obligations. The fact that the administrative tribunal is constituted by judicial officers or former judicial officers does not alter its true character as an investigative body (Gelu & Paraka v Sheehan (2013) N5498, Kamit v Cooke QC (2003) N2369, Sasau v PNG Harbours Board (2006) N3253). No further appeal or review lies to a higher executive authority or a Court from the report, recommendation or decision of an administrative tribunal.

17. A “quasi-judicial tribunal” is usually comprised of serving or former judicial officers, or by persons with special knowledge and expertise in the applicable law and in the field of concern to the tribunal. A “quasi-judicial tribunal” is usually empowered to “inquire into” and “investigate” a matter and apply the law to facts to reach a finding or recommendation or a decision in some cases. As those decisions may determine the legal rights or obligations of the person under investigation, the tribunal is required to observe the principles of justice throughout inquiry. The enabling statute usually gives finality to the decision of quasi-judicial tribunals and prohibits any further appeal or review to a higher Executive authority or the Courts. In some situations, an appeal or review by the Courts may be permitted, however the appeal or review hearing before the Court proceeds by way of a de novo hearing that allows the Court to maintain the “quasi-judicial” character of its hearing.

18. A common feature of administrative tribunals and quasi-judicial tribunals is that both are part of the Executive bodies, whose decisions are subject to the approval of the Executive. As the definition of the term “quasi-judicial proceeding” in the Oxford Dictionary of Law states:

Adj. Describing a function that resembles the judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of the law.

19. A Leadership Tribunal is no doubt a “quasi-judicial tribunal”. It is constituted by judicial officers (or former judicial officers). Its composition makes a Leadership Tribunal a quasi-judicial tribunal that conducts proceedings as such, that is, proceedings that are not judicial proceedings. The key words or expressions to look for in a statute are the likes of the expressions “inquiry” “inquire into”, “investigate” or “make due inquiry into the matter”, and “without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper”. Most of these expressions are found in in the language of the OLDRL, Section 27(4).

20. The real difference between a quasi-judicial tribunal and a Court is found in the rules of procedure and evidence that attend to the non-judicial proceedings of a tribunal and the judicial proceedings of a Court. For instance, in the case of a Leadership Tribunal, its function is to conduct an “inquiry”, to “inquire” or “investigative”. Its proceedings are “inquisitive” in nature. The term “inquisitive” is derived from the term “inquiry” and the term “investigative” is descriptive of the “inquiry” that is conducted by the tribunal to establish the facts concerning the allegation or complaint of misconduct. The procedure and rules under which the tribunal conducts the inquiry are matters for the tribunal to determine and apply but they are subject to the principles of natural justice being observed throughout the inquiry. There are no fixed rules of practice, procedure and evidence prescribed by law for the tribunal. There is always a standard statutory provision in every statute that establishes a quasi-judicial tribunal, that permits the tribunal to determine its own procedures and conduct its own proceedings in the manner it sees fit “without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper”. The pre-amended Section 27(4) of the OLDRL is a standard provision:

The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. [My emphasis.]

21. The findings and recommendations of the Leadership Tribunal are submitted to the Head of the Executive or the appointing authority of the leaders (which is an executive body), to give effect to the recommendation or decision. The decision of the Head of the Executive is final.

22. Then there are those cases in this country where the law vests the Courts with the jurisdiction of a “quasi-judicial” tribunal. The proceedings may appear to be “judicial”, however the “quasi-judicial” character of a tribunal is maintained. The decision reached by the Court is given finality and further appeal or review is prohibited. The statute law ensures that the hearing takes place in an inquisitive and investigative setting without regard to legal forms and rules of evidence. An example is the National Court which is given the jurisdiction of a Court of Disputed Returns. The name “Court” signifies the vesting of special jurisdiction on deciding election disputes in the Courts, however the real inquisitive and investigative character of this quasi-judicial jurisdiction is not altered. This is made clear in Section 217 of the Organic Law on National and Local-Level Governments when it states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. [Emphasis is mine.]

23. By contrast, the Court conducts “judicial proceedings” in accordance with legal formalities or technicalities and rules of evidence in an adversarial and adjudicative setting. The proceedings before a Court are pitched in an adversarial setting and proceedings are strictly “accusatorial”. Only judicial officers with a current judicial commission sit in the Court and sit as a neutral referees, to “hear” the case brought before it by the parties to reach its decision, the Court guiding and directing the proceedings conducted by the parties in accordance with established procedures and rules of evidence that ensure fair play, and a decision is reached by applying the established burden and standard of proof. In criminal proceedings, the prosecution bears the onus of proving the case beyond reasonable doubt and in civil cases, the plaintiff bears the onus of proving the case on the balance of probabilities. An appeal or review lies to a higher Court from the decision of a Court of first instance.

24. The Amendment Law has removed the most essential characteristics of a Leadership Tribunal as a quasi-judicial tribunal and transplanted into OLDRL, Section 27(4) the rules of procedure and evidence that pertain to judicial proceedings of a Court and converted the proceedings before the Leadership Tribunal into a judicial proceeding. The amended Section 27(4) states:

The tribunal shall make due inquiry into the matter referred to it, with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48), and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. [Emphasis is mine.]

25. It is to be noted that the equivalent of OLDRL, Section 27(4) in respect of appropriate tribunals appointed under Section 27(7)(a)-(c) are not affected by the Amendment Law: see Constitution, Section 181 and OLGRICOH, Section 6. There is a serious inconsistency in the nature of a hearing between leadership tribunals covered under OLDRL, Section 27(7).

26. I do not see how this radical transformation of a “quasi-judicial proceeding” into a “judicial proceeding” can be justified under any circumstance. The amendment obviously gives preferential treatment to leaders, the bulk of whom are elected leaders, more protection from prosecution for their misconduct as if they already do not enjoy enough protection under the law as it has been applied by Leadership Tribunals to this day. The way the proceedings before Leadership Tribunals have been conducted since Independence by applying OLDRL, Section 27(4) has been by far very fair to leaders, and arguably, favourable to leaders. Leadership Tribunals very well understand the Public Prosecutor’s “prosecution” function before it with which comes an adversarial undertone: Constitution, Section 29(1) (see SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011).

27. Proceedings have been conducted before judicial officers, serving or retired. There are signs that Leadership Tribunal proceedings have become procedurally cumbersome and technical, due mainly to the insistence from leaders who appear before the tribunal, on strict adherence to technical rules of procedure and evidence. Further judicial review by the National Court and the Supreme Court is within easy reach and many leaders have challenged the referral process and proceedings of the tribunal. Leaders should get great comfort from the fact that they already enjoy a system of justice in the tribunals that in practice have been shaped to become adversarial and adjudicative and to a point that the proceedings are almost “a judicial proceeding”. They do not need more procedural safeguards that provide them more protection. The Amendment Law is an unnecessary interference in the proceedings of a Leadership Tribunal, it is clearly inconsistent with Section 28(5) of the Constitution and it must be struck down.

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

28. I also agree with Justice Kirriwom and Justice Cannings that given my answer to question 1, it is unnecessary to answer question 2.

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:

29. The pivotal question is: When does suspension of a leader referred under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect?

Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty.

(1) If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion—

(2) If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7).

(3) Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to refer it to the appropriate tribunal or the Ombudsman Commission is of the opinion that the matter has not been properly referred to the appropriate tribunal, the Commission may refer the matter, together with a statement of its reasons for its opinion, to the appropriate tribunal referred to in Subsection (7).

(4) The tribunal shall make due inquiry into the matter referred to it, with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48), and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(5) If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that—

(b) as permitted by Section 28(1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection—some other penalty provided for by an Act of the Parliament be imposed.

(6) The tribunal shall announce its decision in public, and shall send a copy of the decision to the Speaker, for presentation to the Parliament, and to the National Executive Council and, in the case of a Judge, a Law Officer or the Chief Magistrate, to the Judicial and Legal Services Tribunal.

"the appropriate authority" means, in relation to a person to whom this Law applies, the authority to whom, in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him should be made;

(a) in the case of alleged misconduct in office by the Chief Justice—the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution; or

(b) in the case of alleged misconduct in office by a Judge, a Law Officer or the Chief Magistrate—the tribunal referred to in Section 180 (removal from office of other Judges, etc) of the Constitution; or

(c) in the case of alleged misconduct in office by any other constitutional office-holder—the tribunal established by Section 3 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders; or

(d) in the case of alleged misconduct in office by the Prime Minister—a tribunal appointed by the Chief Justice, consisting of a Chairman and two other members, all of whom must be—

(ii) former Judges of the pre-Independence Supreme Court of Papua New Guinea; or

(iii) Judges or former Judges of an equivalent court of a country that has a legal system similar to that of Papua New Guinea;

(e) in any other case—a tribunal consisting of a Judge (who shall be the Chairman) and two senior magistrates appointed by the Chief Justice.

(8) The Judicial and Legal Services Commission shall determine the matters referred to in Paragraph (d)(iii) of the definition "the appropriate tribunal".

32. There is no question that the leader is automatically suspended by operation of law “when the matter has been referred to a tribunal”. Pruaitch v Manek (No 1), Pruaitch v Manek (No 2) and Somare v Manek reached the same conclusion and that is the correct statement of the law under OLDRL, Section 28(1). The only issue is over the occurrence of the event that triggers the suspension under any one of the four scenarios set out in question 3.

33. Question 3 asks a generic question that is not specific as to the different categories of leaders in respect whom appropriate tribunals are appointed under OLDRL, Section 27(7). Likewise the general reference in Section 28(1) to Section 27 lacks specific reference to the different categories of leaders and appropriate tribunals appointed under separate Constitutional Laws. The ambiguity in the question and OLDRL, Section 28(1) needs to be resolved first.

34. In my view, the question over the application of Section 28(1) of the OLDRL should be restricted to the suspension of a leader who is the subject of an investigation by an appropriate tribunal appointed by the Chief Justice under Section 27(7)(e). Section 28(1) does not concern itself with Leadership Tribunals that are appointed under Sections 27(7)(a) to (d), because they have their own suspension provisions under the Constitution and OLGRICOH. Suspension of a leader by an appropriate tribunal appointed under Section 27(7)(e) is automatic by operation of law. Suspension of other leaders appearing under Sections 27(7)(a) to (d) inclusive is in the discretion of the tribunal or the appointing authority of the leader, which is also the appropriate authority that appoints the tribunal.

35. In the case of the Prime Minister, the tribunal suspends the Prime Minister (Constitution, Section 142(5) and (6)). In the case of the Chief Justice, the Head of State acting in accordance with the advice of the National Executive Council suspends the Chief Justice: Constitution, Section 182(1)(a). In the case of Judges, Chief Magistrate and the Law officers, the Judicial and Legal Services Commission suspends the leader after appointing the tribunal: Constitution, Section 182(1)(b). In the case of the Clerk of Parliament and the Auditor-General, the National Executive Council suspends them after appointing the tribunal: OLGRICOH, Section 9.

36. I have read the judgments of the Supreme Court in Pruaitch v Manek (No 1), Pruaitch v Manek (No 2) and Somare v Manek, which were constituted by different Judges, with interest with regard to how the relevant provisions of the Constitutional Laws relating to suspension of a Leader have been construed and accorded conclusive constructions without the benefit of full argument on the point by the parties. In those cases, the primary question was not over suspension under Section 28(1) of the OLDRL. As a result, some of the reasoning in those cases is not reflective of the intention and purpose of those provisions. Some of the reasoning has gone beyond those argued by the parties and directed their focus away from the specific issues in the case.

37. The primary legal foundations of the proceedings in the three cases were not about suspension (and its coming into effect) of the leaders in question. The first case that started the debate was Pruaitch v Manek (No 1). It was an appeal from an interlocutory ruling of the National Court refusing an interim injunction to restrain further action on the referral made by Ombudsman Commission to the Public Prosecutor. The Court went on to make what appears to be a substantive determination on issues concerning referral of the leader and when suspension comes into effect. All that the Court had to be satisfied with was that there was an arguable case that there occurred errors on the face of the decision. The Court determined issues concerning when the leader was suspended from office under Section 28(1) of the OLDRL. The Court decided that a leader was suspended when the Chief Justice appointed the tribunal upon receiving a request from the Public Prosecutor. The Court held that a tribunal already having been appointed, Pruaitch remained suspended by operation of law.

38. In the next case, Somare v Manek, Somare brought a Constitutional Claim under Section 18(1) of the Constitution (invoking the original jurisdiction of the Supreme Court) seeking an interpretation and application of certain Constitutional provisions relating to his referral by the Ombudsman Commission to the Public Prosecutor. An application was made by the Ombudsman Commission to dismiss the Constitutional Claim for abuse of process on the ground that the Leadership Tribunal proceedings had already been concluded. The Court made substantive determinations on when Somare was suspended from office under the OLDRL. The Court held that suspension occurred when the Public Prosecutor requested the Chief Justice to appoint a Leadership Tribunal. The Court did not consider Section 142(6) the Constitution, subject to which Section 28(1) of the OLDRL is to be read, which provides that suspension is in the discretion of the Leadership Tribunal.

39. The Court overlooked Section 142(6) of the Constitution because the lawyers who appeared in the case did not bring this provision to the Court’s attention. The failure of the lawyers to bring this provision to the Court’s attention was inexcusable given that there was some public debate in the media a few months earlier in 2011 over that very same issue and their minds would have been alerted to this important provision. I recall that after I (as Chief Justice) appointed the Leadership Tribunal in that matter, I came under criticism from certain partisan elements. I had deferred the question of suspension to the Leadership Tribunal in the light of Section 142(6) of the Constitution. The critics’ minds were no doubt clouded by the hysteria in some quarters of the public that was gripping the nation that Somare should resign or step down during the tribunal investigations or better still he remained automatically suspended from office by operation of law under OLDRL, Section 28(1). Somare v Manek was decided in July of 2011, after the Leadership Tribunal had concluded its inquiry in April of 2011. The public debate seems to have entered the judicial fray in Somare v Manek with the Court venturing into an ex post facto consideration of the rights and wrongs of a leader undergoing investigations before a Leadership Tribunal. The Court said leaders in such circumstances are duty-bound to do the right thing by resigning or retiring as it was the standing practice that had developed elsewhere in the common law world. All that with respect was unnecessary and obiter.

40. In the third case, Pruaitch v Manek (No 2), Pruaitch appealed against the decision of the National Court that dismissed the substantive proceedings from which arose the interlocutory ruling that was the subject of the decision in Pruaitch v Manek (No 1). The Court allowed the appeal and reinstated the National Court proceedings. The question of suspension pending the determination of those proceedings arose as a consequential point. The Court held that the decision of the full Court in Pruaitch v Manek (No 1) on the question of suspension was obiter and that the Court had exceeded its jurisdiction to suspend Pruaitch. The Court also held that a leader is suspended when the Public Prosecutor presents the “charges” and statement of reasons before the Leadership Tribunal. Only then, the tribunal assumes jurisdiction over the matter and the leader is automatically suspended from office there and then. The Court then went on to restrain the Ombudsman Commission, the Public Prosecutor, the Leadership Tribunal and the State from taking any further steps on the referral until the substantive proceedings were determined by the National Court.

41. In Pruaitch v Manek (No 2) the question of suspension arose after the appeal was allowed. The question of suspension was a matter for the National Court to deal with in the National Court proceedings before it, now that those proceedings had been restored. The Supreme Court claimed its jurisdiction to grant such interim relief under Section 23(2) of the Constitution. However that provision gives the National Court (not the Supreme Court) the power to impose sanctions for breaches of the Constitution. The Court also used Section 155(4) of the Constitution to claim its jurisdiction to grant the interim relief. However Section 155(4) is only properly used in aid of a primary claim. That primary claim was founded on the wrong provision in Section 23(2) of the Constitution.

42. In the case before us, this case does not suffer from any of those frivolities that are apparent in the three cases. The question has been fully argued before us by the appropriate parties and it is time now time to arrive at a conclusive determination on the question.

43. The question concerns Section 28(1) of the OLDRL which applies only to an appropriate Leadership Tribunal appointed under Section 27(7)(e).

44. In my view, in order to ascertain the meaning of OLDRL, Section 28(1), the provisions of OLDRL, Section 27(2) and (7)(e), to which Section 28(1) relate, must be read together. These OLDRL provisions must also be read subject to Constitution, Section 28(1) and Section 29 by virtue of Section 11 of the Constitution.

45. I have already concluded that the appropriate tribunal for the purpose of OLDRL, Section 28(1) is the tribunal appointed under OLDRL, Section 27(7)(e). I have also concluded that suspension under OLDRL, Section 28(1) is automatic and occurs by operation of law. I have concluded that in respect of leaders appearing in Sections 27(7)(a) to (d), suspension is in the discretion of the tribunal or the leader’s appointing authority which is also the appropriate authority that appoints the tribunal. That restricts the application of OLDRL, Section 28(1) to the leaders who are investigated by appropriate tribunals appointed under Section 27(7)(e). The reason for the different treatment accorded to the leaders under the two categories is, it seems to me, the importance of high offices and their independence (in respect of Constitutional Offices and Office-holders). This protection is among a series of other protections accorded to those high and independent offices by Constitutional Law. For instance, in the case of a referral of leaders that come under Sections 27(a)-(d), an appointment of a Leadership Tribunal to investigate them on an allegation of misconduct in office or for misbehaviour must be predicated on a serious question of removal arising from those allegations: see SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011.

46. The referral of the matter by the Ombudsman Commission to the Public Prosecutor is “for prosecution” before a Leadership Tribunal that is appointed for the purpose of inquiring into the matter: Constitution, Section 29. The Public Prosecutor’s prosecution function is invoked. The OLDRL, Section 27(2) empowers the Public Prosecutor to make his own decision whether or not to bring a “prosecution” before the Leadership Tribunal. The prosecution cannot be commenced before a Leadership Tribunal until a tribunal is appointed and is in place to receive the referral. The Chief Justice is not a privy to the dialogue over the referral process that takes place between the Ombudsman Commission and the Public Prosecutor under Constitution Section 29 and OLDRL, Section 27. The Public Prosecutor must request the Chief Justice to appoint the appropriate tribunal.

47. It is a long established practice that the Public Prosecutor requests the Chief Justice to appoint the tribunal to enable him to bring the prosecution proceeding. The Public Prosecutor’s request to the Chief Justice to appoint the tribunal cannot be said to be a “referral” for the purpose of OLDRL, Section 28(1). The Chief Justice usually accedes to the request and appoints the appropriate tribunal and informs the Public Prosecutor accordingly.

48. It is also a long established practice that with the tribunal in place, the Public Prosecutor brings the allegations of misconduct (the “charges”) accompanied by the statement of reasons before the tribunal which he formally presents to the tribunal at a public hearing, at a fixed date, time and venue. The inquiry commences upon the presentation of the allegations. This practice is analogous to the Public Prosecutor’s formal presentation of a charge for a criminal offence in the form of an indictment before a Judge in open Court, to commence the criminal trial or proceeding. The prosecution function of the Public Prosecutor before the Court and the Leadership Tribunal are in the same vein. The word “refers” appearing in OLDRL, Section 28(1) should be accorded the same meaning as the word “presents”. This is the correct interpretation that should be accorded to OLDRL, Section 28(1) upon a combined reading of Constitution, Section 29 and OLDRL, Sections 27(1), (2) and (7).

49. The timing and venue of the tribunal’s sitting is critical to the presentation of the allegations of misconduct and the suspension that follows by operation of law. It is imperative that the appropriate authority that appoints the tribunal inform the leader concerned, the prosecution authority and the tribunal members of the date, time and venue of the first public hearing in which the charges will be presented so that the tribunal can commence its inquiry on schedule and the leader and the Public Prosecutor can also attend. In 2010, the Chief Justice after consulting the stakeholders promulgated the Protocol on Appointment of Leadership Tribunals by the Chief Justice 2010 (“the Protocol”, an NJS Publication). The Protocol addresses those administrative matters. The Protocol has been applied in respect of all the tribunals appointed by the Chief Justice since 2010 with greater efficiency achieved in the appointment of Leadership Tribunals and the timely and efficient conduct of tribunal proceedings.

50. Amongst the guidelines contained in the Protocol, there is provision for the Public Prosecutor to furnish the statement of allegations of misconduct and statement of reasons to accompany his request to the Chief Justice to appoint the tribunal. The guidelines make provision for an Instrument of Appointment of the Tribunal in the prescribed form to be issued by the Chief Justice that marks the appointment of the tribunal. The instrument contains, amongst other relevant matters, the names of the Chairman and members of the tribunal, the date, time and venue fixed for the commencement of the inquiry. In practice, the date time and venue is fixed after consulting the Chairman and members of the tribunal. The guidelines provide for filing documents by the parties at the National Court registry at Waigani to be received, registered and recorded by a dedicated staff of the registry service. The guidelines also make provision for the instrument once issued to be served on all the leader together with the statement of allegations and the statement of reasons. The members of the tribunal are also furnished with those documents. The Public Prosecutor is furnished with a copy of the instrument only. It is at that first hearing that the Public Prosecutor will present the allegations of misconduct constituting the charge(s) accompanied by the statement of reasons.

51. I should make it clear that the provision of the statement of allegations and statement of reasons by the Public Prosecutor to the Chief Justice does not constitute a “referral” under Section 28(1) of the OLDRL. The early provision of the statement of allegations and statement of reasons to the leader is to inform the leader and to enable him to prepare his case. The Public Prosecutor should formally present the allegations of misconduct and statement of reasons when the tribunal convenes at the date, time and venue fixed in the instrument of appointment of the tribunal. The suspension commences when the statement of allegations of misconduct and statement of reasons are formally presented to the tribunal.

52. The Protocol provides useful procedural guidelines that assist in the efficient running of Leadership Tribunals appointed by the Chief Justice. After the decision on this Reference, application of the Protocol and adherence to the procedural guidelines therein will continue to become particularly relevant and imperative for the timely commencement of the inquiry by the tribunal.

53. The Protocol addresses a lack of provision in the OLDRL and OLGRICOH with regard to the procedural guidelines by which the Leadership Tribunal system is administered. I would classify the protocol as procedural guidelines of Constitutional significance that come under Section 224 of the Constitution.

54. I hold that pursuant to Section 29(1) of the Constitution, Section 27(2) of OLDRL and Section 28(1) of the Constitution, a leader in respect of whom an appropriate Leadership Tribunal is appointed under Section 27(7)(e) of the OLDRL is automatically suspended from office by operation of law upon the formal presentation of the allegations of misconduct in office accompanied by the statement of reasons, by the Public Prosecutor, before the Leadership Tribunal, when the tribunal commences its public inquiry at the time, date and a venue fixed in the instrument of appointment of the appropriate tribunal issued by the Chief Justice or at such other time, date and venue as the tribunal determines.

55. I approve of the reasoning in Pruaitch v Manek (No 2) and overrule Pruaitch v Manek (No 1) and Somare v Manek on this point.

The suspension of a leader referred under Section 28(1) of OLDRL only applies to a leader who is the subject of an inquiry by a Leadership Tribunal appointed under Section 27(7)(e) of the OLDRL. The suspension of the leader automatically takes effect by operation of law when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the statement of reasons, to the Leadership Tribunal at a public hearing.

57. KIRRIWOM J: This is a Special Reference pursuant to Constitution, Section 19(1) by the Ombudsman Commission of Papua New Guinea, an authority referred to in Section 19(3)(e) of the Constitution for an opinion of the Supreme Court relating to interpretation or application of Constitutional Laws in the light of the questions herein posed for the Court's deliberation and determination. And these questions are:

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:

58. Questions 1 and 2 relate to the amendment to Section 27(4) of the Organic Law on Duties and Responsibilities of Leadership where the amendment or the amended provision prescribes strict compliance with the rules of evidence as required in the Evidence Act in the Ombudsman Commission investigation of a leader before it forms an opinion to refer the leader to the Public Prosecutor whereas the law as it was before the amendment did not require such strict proof or compliance before the Commission exercised that discretion to refer.

59. Question 3 is in relation to the timing of a leader's suspension from office or position when he is subject to a leadership prosecution. This is the result of several conflicting opinions previously expressed by three-Judge benches of the Supreme Court so that an opinion now from the five-Jude bench can put this issue at rest.

(5) If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that—

(a) in the case of alleged misconduct in office by the Chief Justice—the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution; or

(d) in the case of alleged misconduct in office by the Prime Minister—a tribunal appointed by the Chief Justice, consisting of a Chairman and two other members, all of whom must be—

(ii) former Judges of the pre-Independence Supreme Court of Papua New Guinea; or

(iii) Judges or former Judges of an equivalent court of a country that has a legal system similar to that of Papua New Guinea;

(e) in any other case—a tribunal consisting of a Judge (who shall be the Chairman) and two senior magistrates appointed by the Chief Justice.

(8) The Judicial and Legal Services Commission shall determine the matters referred to in Paragraph (d)(iii) of the definition "the appropriate tribunal". [Emphasis added.]

The tribunal shall make due inquiry into the matter referred to it , without regard to legal formalities or rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice"

The tribunal shall make due inquiry into the matter referred to it, with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48),and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(1) Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty.

(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

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