Kaluwin v Haiveta [2023] PGSC 26; SC2384 (28 April 2023)

SC2384

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCA 80 OF 2020

PONDROS KALUWIN, PUBLIC PROSECUTOR
First Appellant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Appellant

AND:
HONOURABLE DAVIS STEVEN, ATTORNEY GENERAL
Third Appellant

AND:
HONOURABLE JOB POMAT, SPEAKER, NATIONAL PARLIAMENT
Fourth Appellant

AND:
HONOURABLE CHRISTOPHER SESEVE HAIVETA, GOVERNOR, GULF PROVINCE
First Respondent

AND:
OMBUDSMAN COMMISSION
Second Respondent

AND:
SIR GIBBS SALIKA, CHIEF JUSTICE
Third Respondent

Waigani: Kandakasi DCJ, Geita and Miviri, JJ.
2022: 14^th December
2023 28^th April

JURISDICTION – Whether National Court has jurisdiction to terminate leadership tribunal proceeding using separate civil proceedings – Appropriateness of - Claim of breach of rights under ss 37(1) (3) and (11) and 41 of the Constitution - Use of s 57 of the Constitution – Appropriateness of - Whether the provisions of ss 37 and 41 apply to leadership tribunal proceedings? - Relevant Supreme Court decisions – National Court obliged follow – Failure to - No specific legislative foundation for - Invoking s.155 (4) of Constitution –Appropriateness of –– Against good order and due administration of justice for civil courts to intervene in leadership tribunal cases –Public interest dictates due process and procedure under the Leadership Code and leadership tribunal proceedings to take their normal course.

Facts

In January 2006, the First Respondent (Leader) was referred to the Public Prosecutor (PP) by the Ombudsman Commission for allegations of misconduct in office in his then position as a Regional Member of the Parliament for the Gulf Province. At the request of the PP, a tribunal was appointed by the then Chief Justice on or about 6^th October 2006. The tribunal comprised of a justice of the National Court who was the chairman, now deceased and two senior magistrates, one of whom is also deceased now. On 20^th February 2007, a reference was presented to the Tribunal by the then PP containing 28 allegations of misconduct in office. A hearing commenced before the Tribunal and the Leader’s suspension under section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) took effect from that date. The prosecution completed its case, a no case submission was made by the Leader which submission was rejected by the Tribunal. Thereafter the Leader went into evidence together with another witness. He was then to call 3 more witnesses. But before he could do so, the 2007 National General Elections came up. That caused the Tribunal to adjourn pending conclusion of the elections and return of writs. The Leader failed to be re-elected in that election and the next in 2012. In 2011the Leader was appointed as the Acting Secretary to the National Executive Council which was a leadership position but was not clear how long was that for. For reasons that are not clear, the PP did not take any step for a tribunal to be reappointed to complete the tribunal process. Then came the 2017 National General Elections which saw the Leader re-elected as the Regional Member of Parliament for the Gulf Province. Following that, the PP requested the current Chief Justice to appoint a leadership tribunal. Before the Chief Justice could appoint a tribunal, the Leader issued civil proceedings in the National claiming breach of his rights under s. 41 and s. 37 (1) (3) and (11) and sought permanent injunctions pursuant to s. 57 (1) and s.155 (4) of the Constitution. That application was upheld, and the leadership tribunal process was terminated purportedly pursuant to s. 41, 57 (1) and 155 (4) of the Constitution. In arriving at that view, the learned trial judge relied on several National Court decisions which included a string of judgments of the learned trial judge himself. The Appellants appealed against that decision claiming the National Court erred in assuming jurisdiction and granting the reliefs sought because the Supreme Court had already interpreted and held that s. 41 does not grant any right that is enforceable under s. 57 (1) of the Constitution and that s. 37 (1) (3) (11) apply only to criminal proceedings and not to administrative proceedings like leadership tribunals. The Leader argued to the contrary and supported the National Court’s decision.

Held:

1. Pursuant to s. 18 of the Constitution, only the Supreme Court has the exclusive jurisdiction to interpret provisions of the Constitution except in only two cases namely: (1) the constitutional interpretation question is trivial, vexations or irrelevant; and (2) where the Constitution specifically authorises the National Court, other courts and tribunals to enforce certain parts of the Constitution and to discharge that duty, they necessarily have the power to interpret and apply the relevant and applicable constitutional law provision:
   

Cited Haiveta v. Wingti & Anor [1994] PNGLR 160; Namah v. Poole (2016) SC1516; Lowa, & Ors v. Akipe & Ors [1991] PNGLR 522; [1992] PNGLR 399 and Raz v. Matane [1985] PNGLR 329.

2. Section 41 of the Constitution does not grant any right that is capable of enforcement under s. 57 (1) of the Constitution.

Approved, adopted, and applied Raz v. Matane [1985] PNGLR 329 (Raz v. Matane) and Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329 (the Premdas case).

3. Section 37 (1) (3) (11) of the Constitution, apply only to criminal proceedings and not administrative proceedings such as Leadership Code breaches and leadership tribunal processes are administrative in nature and not criminal:

Adopted and applied Special Reference by the Ombudsman Commission in the matter of the Constitution, Section 28(5) and Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645, SC Ref No. 5 of 1980, Joseph Auna, Re Leadership Tribunal appointed under The Organic Law on the Duties and Responsibilities of Leadership [1980] PNGLR 500 and SCR No 2 of 1992; Re The Leadership Code [1992] PNGLR 336.

4. There is sufficient process procedure and safeguards within the criminal justice process or the leadership tribunal and other process and as such the civil process in the National Court cannot be used to interfere and intervene in matters that are pending at whatever stage they might be, in the criminal or leadership tribunal and other processes, until those process have been completed and a matter comes before the National Court by way of judicial review or appeal:

Adopted and applied Eremas Wartoto v. The State (2015) SC141 (the Eremas Wartoto case), Somare v. Manek (2011) SC1118, Pato v. Manjin [1999] PNGLR 6, Pius Pundi v. Chris Rupen (2015) SC1430.

5. Section155 (4) of the Constitution has been abused more than its proper use and as the Court has gone on to clarify that, although grants an inherent power to the courts, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead, it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution. Where remedies are already provided for under other law, the provision does not apply. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law:

Adopted and applied William Powi & Ors v. Southern Highlands Provincial Government & Ors (2006) SC844, Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 and Barrick (Niugini) Ltd v. Nekitel & Ors (2021) SC2092.

6. Section 57 (1) of the Constitution cannot be invoked to interfere and intervene in criminal and other proceedings that are authorised by law. Instead, any issue of a breach of one’s right or freedom must at the first instance be raised in the relevant proceedings, the Court or authority before whom the matter is at:

Approved and applied The State v. Tamate (2021) SC2132, The State v. Kenneth Kunda Siune (2021) SC2070 and Commander of Beon Correctional Institution v. Mal (2022) SC2186

7. Pursuant to Sch. 2.9 (1) of the Constitution all decisions of the Supreme Court are binding on the National Court, other courts, and tribunals and are therefore obliged to follow them. At the same time, it is trite law that the Supreme Court is not bound by its own earlier decisions but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart from its earlier decisions and as such, departures within a short space of time are undesirable and should not be encouraged. However, departures are permissible only in exceptional circumstances where, earlier decisions clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction, the law pronounced or stated in the earlier decisions are no longer appropriate and applicable to the current prevailing circumstances and needs of the country and as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision:

Adopted and applied Aihi v Isoaimo (2013) SC1276 at para 27.

8. In this case, the learned trial judge clearly fell into serious and clearly identifiable errors in:

(a) assuming a jurisdiction he did not have under s. 57 (1) and s. 155 (4) of the Constitution, allowing the Leader’s claim and granting the reliefs he granted;

(b) choosing to follow National Court decisions, most of which were that of the learned trial judge and not the decisions of this Court for the learned trial judge’s decision concerning the provisions of s. 41 of the Constitution. The decisions in Re Ricky Yanepa [1988-89] PNGLR 166; Nowra No 8 Pty Ltd v. Kala Swokin [1993] PNGLR 498; Okona-Meten v. Leslie B Mamu (2019) N7668; Kamit v. Aus-PNG Research & Resources Impex Ltd (2007) N3112; Petrus & Gawi v. Telikom PNG Ltd (2008) N3373, Joyce Avosa v Rene Motril (2014) N5732, Paru v. Kotigama & Bmobile-Vodafone (2015) N6089, David Simon v. Michael Koisen (2018) N7075 and others representing these line of cases, do not correctly represent the law and should not be followed;

(c) failing to follow and therefore go against the various decisions of the Supreme Court as noted under holding 1 to 7 above or the law those decisions represent; and

(d) failing to consider the relevant Supreme Court decisions on point and provide reasons or the basis on which the Supreme Court and not the National Court can depart from earlier Supreme Court decisions or at all, although that would not have made any difference given his lack of jurisdiction at the first place.

5. For these reasons the appeal was upheld in its entirety, the decision and orders or reliefs appealed against were quashed and set aside and the proceedings under OS (HR) No. 3 of 2020 dismissed in its entirety with costs to the Appellants.
   

Cases Cited:
Papua New Guinean Cases

Raz v. Matane [1985] PNGLR 329
Haiveta v. Wingti & Anor [1994] PNGLR 160
Namah v. Poole (2016) SC1516
Prai and Ondowame [1979] PNGLR 42
The State v. Peter Painke (No 2) [1977] PNGLR 141
The State v. Kwambol Emgogol (Unreported, judgment N91, 7 April 1977)
Lowa, & Ors v. Akipe & Ors [1991] PNGLR 522; [1992] PNGLR 399
Paru Aihi v. Peter Isoaimo (2013) SC1276
Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628
Kumbu v. Mann (2018) SC1710
Lovika v. Malpo (2019) SC1895
Dekena v. Kuman (2018) SC1715
The State v. Tamate (2021) SC2132
Hagahuno v. Tuke (2020) SC2018
Re Ricky Yanepa [1988-89] PNGLR 166
Nowra No 8 Pty Ltd v. Kala Swokin [1993] PNGLR 498
Okona-Meten v. Leslie B Mamu (2019) N7668
Kamit v. Aus-PNG Research & Resources Impex Ltd (2007) N3112
Petrus & Gawi v Telikom PNG Ltd (2008) N3373
Joyce Avosa v. Rene Motril (2014) N5732
Paru v. Kotigama & Bmobile-Vodafone (2015) N6089
David Simon v. Michael Koisen (2018) N7075
Motor Vehicles Insurance Limited v. Roy Manduru (2018) SC1750
Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329
The State v. Kenneth Kunda Siune (2021) SC2070
Commander of Beon Correctional Institution v. Mal (2022) SC2186
Eremas Wartoto v. The State (2015) SC1411
Somare v. Manek (2011) SC1118
Pato v. Manjin [1999] PNGLR 6
Pius Pundi v. Chris Rupen (2015) SC1430
William Powi & Ors v. Southern Highlands Provincial Government & Ors (2006) SC844
Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156
Barrick (Niugini) Ltd v Nekitel & Ors (2021) SC2092
Public Employees Association of PNG v. Public Services Commission [1983] PNGLR 206
SCR No. 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] PNGLR 151
SCR No. 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122
Sudi Yaku v. Commissioner of Police, Ex parte The State [1980] PNGLR 27
SC Ref No. 1 OF 2017: Special Reference by the Ombudsman Commission in the matter of the Constitution, Section 28(5) and Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645
SC Ref No. 5 of 1980, Joseph Auna, Re Leadership Tribunal appointed under The Organic Law on the Duties and Responsibilities of Leadership [1980] PNGLR 500
SCR No 2 of 1992; Re The Leadership Code [1992] PNGLR 336

Overseas Cases

In Birdi v. Secretary of State for Home Affairs, Judgment of C.A., 11^th Feb, 1975, reported in part in (1976) 92 LQR. 34; (1975) 119 S.J. 322; The Times, 12^th Feb, 1975

Counsel:

E. Geroro, for the Appellants.
P. Lowing, for the First Respondent.

28^th April, 2023

1. BY THE COURT: The Public Prosecutor (PP) and the other Appellants (the Appellants) are appealing against a decision of Cannings J in the National Court which terminated a leadership tribunal proceeding with various orders. That was done through a separate civil proceeding filed by Hon. Chris Haiveta (the Leader) pursuant to s. 57(1) and 155(4) of the Constitution seeking enforcement of his alleged rights under ss.37(1), (3) and (11) and 41 of the Constitution.
   

The relevant issues

2. The Appellants advance 8 main grounds for their appeal with several sub grounds. These are set out in full at paragraph 15 of this judgment. The grounds of appeal in summary raise the following issues:
   

(1) Does s. 41 of the Constitution grant a right that is capable of enforcement under s. 57 (1) of the Constitution?

(2) Has the Supreme Court authoritatively determined question (1) above in Raz v. Matane [1985] PNGLR 329 or there are two schools of thought on the question which require resolution by a five-member Supreme Court?

(3) If question 1 is answered in the affirmative, is this case distinguishable from the cases that say, s. 41 of the Constitution grants a right and that such cases are inapplicable?

(4) Did the circumstances of the present case warrant an application of s. 41?

(5) Did the learned trial judge err in interpreting and applying the provisions of s. 37 (1), (3) and (11) of the Constitution to Leadership Code proceedings when it was already authoritatively interpreted and applied by the Supreme Court and was contrary to s.18 of the Constitution?

(6) Did the present case present a special and unprecedented case to warrant a termination of the Leadership Code proceeding and the various orders that were granted?

3. Questions (1), (2), (3) and (5) are jurisdictional questions. A determination of these questions may render any consideration of questions (4) and (6) unnecessary.
   

The parties’ arguments

4. The Appellants argue that the Supreme Court has already authoritatively determined that s. 41 of the Constitution does not grant any right that is enforceable under s. 57(1) of the Constitution and there is no conflict of authority on that. Similarly, they argue that s. 37 (1), (3) and (11) have already been determined authoritatively by the Supreme Court that these provisions apply to criminal proceedings only and not to any administrative or Leadership Code proceedings or offences. Finally, they argue that the circumstances in this case did not present any special and exceptional circumstances to warrant the learned trial judge assuming jurisdiction and the decisions, the orders and the reliefs he granted. Consequently, the Appellants argue for an upholding of their appeal and a grant of the reliefs they seek, which is a quashing and a set aside of the whole of the judgment and orders with a dismissal of the National Court proceedings from which this appeal arises.
   
5. The Leader argues to the contrary. He submits the reasoning and decision of the learned trial judge are sound. He therefore asks this Court to dismiss all the grounds of the appeal, the appeal itself, and in consequence, affirm the decision of the National Court.

Factual Background

6. The factual background giving rise to this proceeding is this. Sometime in January 2006, the Leader was referred to the PP by the Ombudsman Commission for allegations of misconduct in office in his then earlier position as a Member of the Parliament for the Gulf Province. The PP requested a leadership tribunal be appointed to inquire into and determine those allegations.
   
7. A tribunal was appointed by the then Chief Justice, Sir Salamo Injia on or about 6^th October 2006. The tribunal comprised of the now deceased, late Justice Hinchliffe and two senior magistrates, one now deceased, late Mr. Stephen Abisai and the other, his worship, Mr. Mark Pupuka, now Chief Magistrate (Tribunal).
   
8. On or about 20^th February 2007, a reference was presented to the Tribunal by the then PP containing 28 allegations of misconduct in office and a hearing got underway before the Tribunal. The first respondent’s suspension under section 28(1) of the OLDRL took effect from that date.
   
9. On or about 23^rd May 2007, the prosecution completed its case, and the Leader made a no case submission, which submission was rejected by the Tribunal. The Leader then went into evidence together with another witness. He also indicated that he would be calling 3 more witnesses. By then, the 2007 National General Elections came up. This meant the Tribunal could not proceed further because the writs for the 2007 National Elections got issued and the country was going to go into elections, and the Leader was no longer a leader. Consequently, the Tribunal adjourned pending conclusion of the elections and return of writs.
   
10. At the completion of the 2007 elections, the Leader was not re-elected. That led to the Tribunal disbanding itself on 6^th August 2007 for lack of jurisdiction as the Leader was no longer a leader. The Tribunal did however indicate that it could reconvene should the Leader take a leadership position in future.
    
11. In 2011, the Leader was appointed as the Acting Secretary to the National Executive Council when the then Somare government was ousted. It is not clear how long the Leader held that position. But it is clear, that was a leadership position. For reasons that are not clear, the PP did not take any step for a tribunal to be reappointed to enquire into and determine the allegations against the Leader.
    
12. Then came the 2017 National General Elections which saw the Leader re-elected as the Governor and Regional Member of the Gulf Province. Following that, the PP wrote to the Leader on 22^nd May 2018, informing him that a request had been made to the Chief Justice to appoint a leadership tribunal to deal with the Reference. By then the former Chief Justice, Sir Salamo Injia’s term expired and the current Chief Justice, Sir Gibuma Gibbs Salika was appointed. No evidence was required or presented at the hearing before the trial judge and hence no evidence of what happened to that request is before this Court. In 2020, there were indications that a tribunal could be appointed. Before a tribunal could be appointed, the Leader issued his proceeding OS (HR) No. 3 of 2020, which gave rise to this appeal. He claimed a breach of his rights and sought permanent injunctions against the proposed appointment in 2020 of a leadership tribunal.
    
13. On 8^th July 2020, the Leader filed a Further Amended Originating Summons in which he claimed the following reliefs:
    

“(i) a declaration pursuant to section 57(1) and 155(4) of the Constitution that the Public Prosecutor Mr Pondros Kaluwin’s request to the then Chief Justice, Sir Salamo Injia on 18th May 2018, to appoint an appropriate tribunal (the Tribunal) or any other leadership tribunal, to hear and enquire into allegations of misconduct against the Plaintiff pursuant to Section 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership (OLDRL) and/or any subsequent similar request(s) by the Public Prosecutor to the Sixth Defendant, or any person acting in his position to appoint a leadership tribunal to hear and enquire into the allegations of misconduct charges against the Plaintiff:

(a) is harsh and oppressive, not warranted by the circumstances of the case and/or not reasonably justifiable in a democratic society having proper regard for the rights and dignity of the Plaintiff as a person and/or a leader, contrary to Section 41 of the Constitution;

(b) has taken an inordinate amount of time and accordingly is contrary to and in breach of the Plaintiff’s human rights pursuant to Section 37(3) and/or 37(11) of the Constitution; and

(c) any such Leadership Tribunal would deprive the Plaintiff of his rights under Section 59 of the Constitution and is accordingly unlawful.

(ii) A declaration in accordance with Sections 57 and 155(4) of the Constitution that the continued supervision or suspension of the Plaintiff of his duties, after the commencing of a Leadership Tribunal on or around February 2007 and comprising the late Justice Timothy Hinchcliffe, the late Stephen Abisai and Mr Mark Pupaka to enquire into allegations contained in a reference from the Public Prosecutor (the Reference), in accordance with Section 28(1) of the OLDRL, is a breach of the Plaintiff’s human rights under Sections 37(3) and/or 37(11), 41 and 59 of the Constitution.

(iii) In accordance with Section 57(1) and Section 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, a permanent injunction enjoining the appointment of the Tribunal, or any subsequent leadership tribunal from commencing, resuming or conducting any hearing or inquiry into the allegations of misconduct against the Plaintiff pursuant to Section 27 of the OLDRL and dealing generally with allegations of misconduct and as contained in the Reference and dealt with by the Leadership Tribunal comprising the late Timothy Hinchcliffe, the late Stephen Abisai and Mr Mark Pupaka on or around February 2007.

(iv) In accordance with Sections 57 and 155(4) of the Constitution and Order 12 Rule 1 of the National Court Rules, a permanent stay of and order setting aside the suspension of the Plaintiff of his duties as the member of the National Parliament for the Gulf Regional Seat and consequently as the Governor of the Gulf Province, pursuant to Section 28(1) of the OLDRL, as a consequence of the referral to the Leadership Tribunal on 20 February 2007.

(v) Consequent upon terms 1, 2, 3 and 4 above and pursuant to Sections 58, 23(2) and 155(4) of the Constitution, a declaration that damages are payable to the Plaintiff by the Defendants.

(vi) An order that the costs (on an indemnity basis) of the Plaintiff in relation to the aborted leadership tribunal appointed on or about 27 January 2006, comprising of late Hinchliffe J, Senior Magistrates Messrs late Abisai and Mark Pupaka proceedings be paid by the Fifth Defendant.

(vii) Costs of these proceedings be paid by the Fifth Defendant.

(viii) Any other Orders this Honourable Court deems fit.

(ix) The time for entry of these Orders be abridged to the date of settlement by the Registrar which shall take place forthwith.”

14. On 27^th July 2020, the trial judge, his Honour, Cannings J., made his decision, and he ordered as follows:
    

“1) The relief sought in paragraphs 1 to 4 is substantially granted and accordingly, pursuant to ss 57(3), 57(5) and 155(4) of the Constitution:

1. It is declared that the Public Prosecutor’s request to the Chief Justice of 18 May 2018 to appoint another leadership tribunal to inquire into the allegations of misconduct in office against the plaintiff, which were the subject of a matter concerning him referred by the Public Prosecutor to a leadership tribunal on 20 February 2007, was and is harsh and oppressive and not warranted by the requirements of the particular case and is a proscribed act for purposes of s 41 of the Constitution, and did and does amount to infringement of the plaintiff’s right under ss 37(1), (3) and (11) of the Constitution to a fair hearing of such allegations of misconduct in office before a leadership tribunal within a reasonable time;
   
2. It is declared that the continued suspension of the plaintiff in respect of the referral of a matter concerning him to a leadership tribunal on 20 February 2007 would be harsh and oppressive and a proscribed act for purposes of s 41 of the Constitution, and would amount to infringement of the plaintiff’s rights under ss 37(1), (3) and (11) of the Constitution to a fair hearing of such allegations of misconduct in office before a leadership tribunal within reasonable time;
   

100. A permanent injunction is granted enjoining the appointment of another leadership tribunal to inquire into the same allegations of misconduct in office against the plaintiff that were the subject of the referral of a matter concerning him to a leadership tribunal on 20 February 2007.
     

4. The suspension of the plaintiff under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadership that took effect in respect of the referral of a matter concerning him to a leadership tribunal on 20 February 2007, is permanently stayed.
   

2. The relief sought in paragraphs 5,6 (abandoned) and 7, is refused.
   
3. The relief sought in paragraph 8 is substantially granted and accordingly it is ordered that, subject to any costs orders made in the course of the proceedings, the fifth defendant shall pay the plaintiff’s costs of the proceedings on a party-party basis, which shall, if not agreed, be taxed.
   
4. All interim orders made in the course of the proceedings are dissolved.
   
5. The proceedings are thereby determined and the file is closed.”
   

The Appeal and its Grounds

15. The appellants challenge the decision and the orders made and advance several grounds. The grounds of appeal are:
    

“3.1 The learned primary judge erred in law purporting to grant the declarations, relying on section 41 of the Constitution, in circumstances where:

(a) Section 41 of the Constitution is not a right or freedom capable of enforcement under Section 57 of the Constitution, applying the majority decision in Raz v Matane [1985] PNGLR 329 (Kidu CJ & Kapi DCJ);

(b) The minority dissenting opinion of Amet J in Raz v Matane (Supra) was incorrectly applied to hold that section 41 of the Constitution was a right or freedom capable of enforcement under Section 57 of the Constitution;

(c) To the extent that the authorities cited by the primary judge held that section 41 of the Constitution was a right or freedom capable of enforcement under Section 57 of the Constitution, they ought not be followed and/or ought to be over-ruled by a five-member bench of the Supreme Court on the grounds that, on proper interpretation, section 41 of the Constitution is not a right or freedom capable of enforcement under Section 57 of the Constitution;

(d) Alternatively, to the extent the authorities cited by the primary judge supported the proposition that section 41 of the Constitution was a right or freedom capable of enforcement under section 57 of the Constitution, such authorities were inapplicable in that they were distinguishable from the instant case.

3.2 The learned primary judge erred in law and/or in both fact and law in purporting to find that the first appellant’s request to the fourth respondent of 18 May 2018 to appoint another leadership tribunal to inquire into the allegations of misconduct in office against the first respondent, which were the subject of a matter concerning him referred by the first appellant to a leadership tribunal on 20 February 2007, was a proscribed act for purposes of section 41 of the Constitution because it was harsh, and oppressive, and not warranted by the requirements of the particular case, in circumstances where;

(a) any delay caused by the first appellant to prosecute the first respondent was adequately remedied by the fourth respondent’s indication by letter dated 18 March 2020 as to the impending appointment of a new tribunal;

(b) the consideration as to the appointment and composition of a new tribunal with the purported imposing task of rehearing evidence that was first presented to the Hinchliffe tribunal 13 years ago was an irrelevant factor taken into account when that tribunal has been disbanded;

(c) the consideration as to the purported reasonable expectation that some evidence would have been lost or misplaced in the 13 years period since the previous tribunal disbanded was irrational having regard to the uncomplicated nature of the allegations requiring an explanation, where necessary, as to, inter alia, the 37 cash cheque payments totalling (sic) K163, 451.37 and the non-lodgement (sic) of annual returns;

(d) the consideration as to the death of some of the first respondent’s witnesses in the 13 year period since the previous tribunal disbanded was irrational having regard to the nature of the allegations requiring an explanation, where necessary, as to, inter alia, the 37 cash cheque payments totalling K163, 451.37 and the non-lodgement of annual returns;

(e) the first respondent’s right to the full protection of the law would continue to be preserved.

3.3 The learned primary judge erred in law in purporting to answer questions relating to the interpretation and application of provisions of the Constitution, in particular sections 37(1), (3) and (11), in circumstances where:

(a) the interpretation and application of those provisions have been the [sic] authoritatively settled;

(b) the questions in issue were not trivial, vexatious or irrelevant;

(c) pursuant to section 18 of the Constitution, the Supreme Court has, in respect of answering such questions:

1. original jurisdiction; and
2. exclusive jurisdiction.

(d) in the premises, the jurisdiction of the National Court pursuant to section 166 of the Constitution did not extend to answering such questions.

3.4 The learned primary judge erred in law in purporting to interpret and apply Section 37(3) of the Constitution as indirectly applying to Leadership Code offences when the interpretation and application of such provisions has been authoritatively settled as being inapplicable to Leadership Code offences.

3.5 The learned primary judge erred in law in purporting to interpret and apply Section 37(11) of the Constitution in the interpretation and application of Section 37(3) of the Constitution against binding authority that such a provision is inapplicable to the Leadership Code offences.

3.6 The learned primary judge erred in law in finding that this was such a special and unprecedented case to halt the constitutional process to prevent a breach of human rights, in circumstances where:

(a) no allegation of breach of human rights provisions was made;

(b) no allegation of breach of human rights provisions was established; and

(c) the first respondent’s right to the full protection of the law would continue to be preserved.

3.7 The learned primary judge erred in law in finding that this was such a special and unprecedented case to halt the constitutional process to prevent an exercise in futility, in circumstances where the first respondent’s right to the full protection of the law would continue to be preserved.

3.8 The learned primary judge erred in law in exercising his discretion to permanently stay the allegations of misconduct against the first respondent by:

(a) taking into account an irrelevant consideration that subjecting the first respondent to a new tribunal was not appropriate, when no such prohibition is prescribed;

(b) taking into account an irrelevant consideration that subjecting the first respondent to a new tribunal was not appropriate, when his right to the full protection of the law was intact or otherwise capable of preservation;

(c) taking into account an irrelevant consideration, being the elapse of time since the occurrence of the various incidents without good explanation in the absence of a prescribed time limitation period under the Constitution and/or OLDRL:

(d) failing to take into account Section 30 (1) and (2) of all OLDRL;

(e) there was undue delay on the part of the defendants when the rights and responsibilities of the first respondent as a Leader were not prejudiced in any material or substantial way.”

Consideration of grounds of appeal and issues presented

16. At paragraph 2 above, we summarised and stated the issues that are presented by these grounds of appeal. We turn now to consideration of the issues presented. Questions (1), (2), (3) and (5) present a critical issue, which is the jurisdiction of the learned trial judge and hence the National Court to entertain the Leader’s claim, uphold it, and grant the various reliefs that he granted. Depending on how those issues are determined, it may not be necessary for us to consider the remaining grounds of appeal.
    
17. We will deal with questions as one. The relevant questions once again are:
    

(1) Does s. 41 of the Constitution grant a right that is capable of enforcement under s. 57 (1) also of the Constitution?

(2) Has the Supreme Court authoritatively determined question (1) above in Raz v. Matane [1985] PNGLR 329 or there are two schools of thought on the question which require resolution by the 5 member Supreme Court?

(5) Did the learned trial judge err in interpreting and applying the provisions of s. 37 (1) (3) (11) of the Constitution to Leadership Code proceedings when it was already authoritatively interpreted and applied by the Supreme Court and was contrary to s. 18 and 168 of the Constitution?

Interpretation and application of constitutional provisions

18. We start with the question of which court has the necessary jurisdiction to interpret the provisions of the Constitution. The relevant principles governing interpretation and application of the provisions of the Constitution are well settled and are therefore trite law. The Constitution itself, in s. 18, lays the necessary foundation. It does so in these terms:
    

“18. Original interpretative jurisdiction of the Supreme Court.

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.”

(Underlining added)

19. This provision has been considered in numerous decisions of the Supreme and National Courts emphasising what the provision clearly stipulates. The Supreme Court has the exclusive jurisdiction on any question of interpretation of the provisions of the Constitution. Given that, subsection (2) requires the National Court or any other court or tribunal in which a question of interpretation of a constitutional law arises to refer the question to the Supeme Court. There are, however, two exceptions to that. The first is where the relevant court or tribunal considers the question “trivial, vexatious or irrelevant”: See for example, Haiveta v. Wingti & Anor [1994] PNGLR 160 and Namah v. Poole (2016) SC1516. The second is in cases where the National Court or another court or tribunal is specifically authorised to enforce certain parts of the Constitution and to discharge that duty, they necessarily have the power to interpret and apply the relevant and applicable constitutional law provision.^[1] For the National Court, Constitution s.166 vests it with power to enforce the Constitution and impose sanctions for any breaches of the Constitution under ss.22 and 23. The National Court also has power to grant compensations or remedies under ss. 57 and 58 of the Constitution for any breach of any human right and or freedom which are enshrined in the Constitution, resolve questions of parliamentary membership under s.135 and exercise the powers granted under s. 155 (3), (4) and (5) of the Constitution.
    
20. What his Honour Kapi DCJ (as he then was) said in the Raz v. Matane is instructive. There, his honour also considered the provisions of s. 18 of the Constitution and looked at the question of when does the need to interpret a provision of the Constitution arise. His Honour answered that question in these terms:
    

“A question of interpretation or application can only arise where there is an issue as to the interpretation or application of a constitutional law. Where there is no such issue or question, there can be no question relating to the interpretation or application of a constitutional law. Let me explain. Parties in a case may assume a particular interpretation or applicability of a constitutional law in a case and the matter is not raised as an issue or raised as a question to be decided by the court.

Where, however, there is an issue and therefore the court must decide the issue, a question relating to the interpretation or application of a constitutional law arises. Let me elaborate. The question may arise in one of two ways. First, the parties appearing before the Court may disagree or dispute the interpretation or the applicability of a constitutional law. There can be no doubt that when this happens, a question relating to the interpretation or application of a constitutional law arises. Secondly, the parties maybe agreed as to the interpretation or applicability of a constitutional law. The question of the proper interpretation or application of a constitutional law in these circumstances still remains the responsibility of the court. The court may adopt the view put forward by the parties or alternatively, it may reject that view and adopt its own view. When the National Court is faced with any of the above circumstances, a question relating to the interpretation or application of a constitutional law arises and it is bound to refer the question for determination by the Supreme Court. It has no jurisdiction to resolve such questions.”

(Underlining added)

21. The learned Deputy Chief Justice went on to say:
    

“Where a question relating to the interpretation or application of a constitutional law has been finally and authoritatively decided by the Supreme Court, it can not be said that such a question can arise again in a future case before the National Court. In other words, when such a question is raised before the National Court, the Court would be bound to adopt the interpretation or applicability of such a provision already decided by the Supreme Court...”

(Underlining added)

22. What the learned Deputy Chief Justice said in the last part of the above quotation was a restatement of what the Constitution already expressly provides for in Sch. 2.9 (1). This provision states in clear terms that “[a]ll decisions of law by the Supreme Court are binding on all other courts, but not on itself.” This is also consistent with the hierarchy of the Courts under s. 155 (1) and (2) of the Constitution which places the Supreme Court high above the National Court, other courts, and tribunals.
    
23. It is also trite law that, even though the Supreme Court is not bound by its own decisions, it cannot readily and easily overturn its earlier decisions. There are well established principles or requirements that must be met before the Supreme Court can correctly depart from any of its earlier decisions. Kandakasi J (as he then was), in Paru Aihi v. Peter Isoaimo (2013) SC1276, with the agreement of Yagi J, reviewed in some detail the relevant Supreme Court decisions on point. That included the decision in Special Reference Pursuant to Constitution s19; Re Calling of Meeting of the Parliament; Reference by the Ombudsman Commission (1999) SC628, per Amet CJ., Kapi DCJ., Woods, Los, Sheehan, Sakora and Sevua JJ. Kapi, DCJ., (as they then were). Kandakasi J summed up the principles as follows:
    

“A careful consideration of the above authorities makes it clear that:

(a) the Supreme Court is not bound by its own earlier decisions;

(b) but in the interest of providing certainty and consistency in the law for the society's guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;

(c) departures within a short space of time is undesirable and should not be encouraged; and

(d) departures are permissible only in exceptional circumstances where:

(i) the earlier decision clearly misinterpreted, misconceived; mistook or misunderstood the law which requires correction;

(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and

(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”

24. This statement of the principles in summary was accepted and applied in Kumbu v. Mann (2018) SC1710, per Kandakasi J (as he then was), Yagi and Bona JJ. In so doing, that decision added at paragraph 10 of the judgment:
    

“These are the relevant and applicable principles of law that apply and governing any decision to depart from an earlier decision of this Court. Much care and caution must be exercised with these principles carefully considered and applied. A decision to depart must be arrived at deliberately by applying these principles for consistency, certainty, and predictability in the law for the guidance of society.”^[2]

25. Finally, in Kandakasi DCJ’s decision in the five-member Supreme Court case of Hagahuno v. Tuke (2020) SC2018 (per Kandakasi DCJ, Kirriwom, Mogish, Manuhu and Makail JJ), with the agreement of Mogish J adopted and applied at paragraph 70 – 71, the principles as summed up in Aihi v. Isoaimo (supra).
    

What happened in the present case?

26. In the present case, the learned trial judge made three important decisions. First, he decided that s. 41 of the Constitution grants a right capable of enforcement under s. 57 of the Constitution. Secondly, he decided that s. 37 (1), (3) and (11) apply to Leadership Code offences. Thirdly, the learned trial judge decided to grant the various reliefs that are appealed against pursuant to s. 57 (1) and s. 155 (4) of the Constitution. As already noted, the appellants submit, in so doing, the learned trial judge erroneously went into an exercise of reinterpreting the provisions of ss. 37 (1), (3) and (11) and 41 of the Constitution when this Court had already authoritatively interpreted these provisions and which decisions the learned trial judge was obliged to follow but he failed to do so without good reason.
    

Does Constitution s. 41 grant a right enforceable under Constitution s.57?

27. In respect of s. 41 of the Constitution, we note this Court by majority of Kidu CJ and Kapi DCJ in Raz v. Matane, fully considered and interpreted this provision. However, the learned counsel for the Leader argues to the contrary. He endorses the learned trial judge’s view that there are two (2) schools of thought on the question of whether s. 41 of the Constitution is capable of enforcement under section 57 of the Constitution. One of them is a broad approach to s .41 as represented by the dissenting view of Amet J (as he then was) in the Raz v. Matane. That view was followed by a few National Court judgments such as the one by Brunton AJ in Re Ricky Yanepa [1988-89] PNGLR 166 and Los J in Nowra No 8 Pty Ltd v Kala Swokin [1993] PNGLR 498 and string of other judgements by the same trial judge as his decision in Okona-Meten v. Leslie B Mamu (2019) N7668 and others.^[3]
    
28. With respect, we find a couple of problems with the submissions for the Leader and hence the decision of the learned trial judge. Firstly, the claim of two schools of thought was coined by the learned trial judge in the current case based on the fact of a split decision in Raz v. Matane. The binding and prevailing decision was by the majority of the then Chief Justice, Sir Buri Kidu and his then Deputy Chief Justice, Sir Mari Kapi. The minority decision, per Amet J (as he then was) has only been accepted and or followed by a string of National Court decisions, most of them by the learned trial judge himself. Those decisions run against the clear provisions of Sch. 2.9 (1) of the Constitution and the hierarchy of our Courts under our constitutional structure. By reason of that, they can neither be accepted nor permitted nor allowed to stand. Accordingly, we hold that those line of decisions misrepresent the law and should not be followed.
    
29. Secondly, following on from the first problem, neither the learned counsel for the Leader nor the learned trial judge referred to, and we are not aware of any Supreme Court decision that endorses the minority view of Amet J in Raz v. Matane. Despite that lacking, learned counsel for the Leader’s submissions are in effect asking this to endorse the learned trial judges deliberate departure from this Court’s earlier decision in Raz v. Matane. That is being done without any submission by counsel for the Leader as to why we should allow for such a departure. Counsel for the Leader did, however, draw this Court’s attention to the decision in Motor Vehicles Insurance Limited v. Roy Manduru (2016) SCA 178 (Gavara-Nanu, David, Geita JJ) at para 19, without more. Relevantly, all that the decision in MVIL v. Manduru said without more was:
    

“...Under the doctrine of stare decisis, a lower court must honour the findings of law made by a higher court that is within the appeals path of cases the court hears. Although courts are obligated to follow precedents, sometimes a court will depart from the rule of precedents if it decides that a given precedent should no longer be followed if a court decides that a precedent is simply incorrect or that technological or social changes have rendered the precedent inapplicable, the court might rule contrary to it.”

30. With the greatest of respect, that decision did not consider at all the principles governing a correct and proper departure by the Supreme Court from its earlier decisions. Hence, that decision neither provides the necessary foundation nor the basis on which, there can be a departure from this Court’s own earlier decision. The principles as stated in Paru v. Isoaimo are the principles that must be considered and applied by this Court for a proper and considered departure from any of its earlier decisions that might be on point.
    
31. The National Court does not enjoy the same privilege as the Supreme Court to depart from any Supreme Court decision. Instead, as already noted, the National Court is bound by the decisions of the Supreme Court. It is therefore legally obliged to follow the decisions of the Supreme Court. Hence, we find the learned trial judge clearly erred in going against the binding decision of the Supreme Court in Raz v. Matane.
    
32. Thirdly, the majority decision in Raz v. Matane, held in clear terms in separate opinions that s. 41 of the Constitution does not grant a right or freedom like those granted by ss. 35 - 37, 42 - 53 and 55 but a right of action in terms of a cause of action. This is because, as Kapi DCJ explained:
    

“I am not persuaded that s 41 confers a “right or freedom”. The provision deals with acts that are empowered to be done or are allowed to be done by a valid law. The provision sets out the circumstances, (s 41 (a), (b) or (c)), under which such acts may be held unlawful of invalid. The whole thrust of the provision is directed at these actions. It does not confer a “right or freedom” as for example “right” to privacy under s 49 or “freedom” of assembly and association under s 47.

However, any person aggrieved by acts which are prohibited by s 41 (a), (b) or (c), may seek judicial remedy in terms of the provision. That is to say, he has a cause or right of action upon which he may make an application to a court. McDermott J expressed this well when discussing s 41 in the Minimum Penalty case, (at 363):

‘... As well there is the newer remedy in the form of a declaratory order available, provision for which is made in the National Court Rules. But, the difficulty has always been in getting a cause of action if you like to establish the basis on which to bring one of these actions. Access to courts has been fairly limited in this area. I consider s 41 wittingly or unwittingly remedies that — it supplies a right of action....’

Such a cause of action arises or is constituted at the time these actions are taken.

In this sense, a person has a right of action to come to the Court. This is quite a different thing from a “right or freedom” referred to in the Constitution, s 57.”

(Underlining added)

33. On his part, the learned Chief Justice Kidu CJ said:
    

“There is, in my opinion, no doubt that s 41 of the Constitution confers a right — the right to challenge an act done under a valid law. In SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314 the following was said by Kapi DCJ at 332-333 of the nature of this right:

‘... A remedy under s 41 cannot be described as an enforcement of a right or freedom under s 57 of the Constitution, and therefore the National Court has no power to grant the remedy. It is a general remedy which is quite distinct and separate from enforcement of a right or freedom ...

Section 57 can have no application to the issue in question. Section 57 only applies to enforcement of rights or freedoms. As I have already pointed out, s 41 is a separate and distinct constitutional remedy.’

(Underlining added)

34. The learned Chief Justice went on to say:
    

“I have, ever since the Constitution came into operation on 16 September 1975, always held the view that s 57 was included in the Constitution for the sole purpose of the enforcement of the human rights (we call them “Basic Rights”) entrenched therein. I still retain this view and in my opinion, this is supported by the CPC Report.”

(Underlining added)

35. After considering the relevant provisions of the CPC report and listing the human rights as provided under Pt III, Div 3 of the Constitution, the learned Chief Justice added:
    

“There is absolutely no doubt that s 41 does not provide for a human right.

Section 57 was quite clearly meant to be used by the Supreme Court, the National Court and any other court designated by an Act of the Parliament to remedy breaches of human rights.”

(Underlining added)

36. Earlier, the Supreme Court in Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329 (Premdas’ case) arrived at the same conclusion. That was in the context of a deportation order by the Minister for Foreign Affairs and Trade and upholding of the same by the Committee of Review under s. 7 of Immigration Act 1963. Premdas sought a declaration that the principles of natural justice as enshrined in the Constitution had been violated and that his rights and freedoms needed protection and enforcement. He therefore, sought an order that he be not forcibly removed from PNG. The National Court decided to refer several constitutional interpretation questions to the Supreme Court under s. 18 of the Constitution. The questions for interpretation revolved around s. 61 AA of the Migration Act 1963 and ss.37 (11) and (12), 38, 41, 57 (1), 155 and 166 of the Constitution.
    
37. The Supreme Court by a unanimous decision per Prentice CJ, Raine DCJ, Saldanha Wilson Andrew JJ held, the decision by the Minister and Committee were not determining the existence or extent of a civil right within the meaning of s. 37(11) of the Constitution. Except for Wilson J, who dissented, the Court also held, the principles of natural justice do not apply in proceedings under the Migration Act 1963 concerning the revocation of the entry permit of a non-citizen and an order for deportation. Further, the Court unanimously held, the revocation of an entry permit under s. 7 of the Migration Act 1963 with an accompanying threat of deportation is not an actual or imminent infringement of any of the qualified rights set out in Sub-div. C of Div. 3 of Pt III of the Constitution and therefore, it is not necessary for the Migration Act to comply with the provisions of s. 38 of the Constitution. Consequently, the Court proceeded to hold in the circumstances of the case that, the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation of the revocation by the Committee of Review, were not unlawful acts within the meaning of s. 41 of the Constitution. Ultimately, per Prentice CJ, Saldanha and Andrew JJ with and Raine J not deciding, and Wilson J dissenting, the Court held the revocation of the entry permit by the Minister for Foreign Affairs and Trade and the subsequent confirmation by the Committee of Review, were properly made and should stand.
    
38. In the present case, as already noted, the learned counsel for the Leader with respect has again failed to assist this Court with any submission which invites this Court to reconsider the soundness of the decisions in Raz v. Matane and the Premdas case. On our own reconsideration of the reasoning in those earlier cases, we find those authorities do not attract an application of the principles governing or allowing this Court to depart from its earlier decisions. Instead, we find the decisions and the respective reasoning in each of the cases are sound and should be maintained. We adopt the reasoning in those decisions as our own. Proceeding on that basis, we are of the view that s. 41 does not create and or grant a right capable of enforcement under s. 57 of the Constitution. Consequently, we find it was a clear abuse of process for the Leader to bring his application under s. 57 (1). More seriously we find the learned trial judge allowed for the abuse or and erroneously proceeded to assume jurisdiction himself a jurisdiction he did not have and proceeded to grant the various reliefs he decided to grant. Those in our view also amounted to an abuse of process and the provisions of s. 57 (1) of the Constitution, as has been the case in many other so called human rights cases as recently highlighted at the highest by the five-member Supreme Court decision in The State v. Tamate (2021) SC2132, Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ.^[4]
    
39. Fourthly, the approach and decision of the learned trial judge also clearly went against the clear statement of the law per the decisions of this Court in the other five-member decision in Eremas Wartoto v. The State (2015) SC1411, per Injia CJ; Sakora, Kirriwom, Kandakasi, Davani, JJ (as they then were). In that case, the appellant, Eremas Wartoto sought in the National Court through a separate civil proceeding purportedly pursuant to s. 155(4) of the Constitution, a permanent stay of criminal proceedings brought against him by the State which were pending also before the National Court in its criminal jurisdiction. That came after going through the committal process. The National Court’s crimes jurisdiction was at the point of mentioning the case and issuing directions for further conduct of the proceedings. The five-members of the Court of which the president of this Court, Kandakasi J (as he then was) was a part, in separate opinions came to a unanimous decision which held in short:
    

(1) The utilisation of civil proceedings to stay criminal proceedings has no specific legislative foundation;

(2) Specific provisions made in criminal proceedings were not utilised and the appellant seeking to invoke the provisions of s.155 (4) of Constitution was inappropriate and an abuse of process;

(3) It was against good order and due administration of justice for civil courts to intervene in criminal cases; and

(4) It was in the public interest to allow the due process and procedure in criminal proceedings to take their normal course.

40. The president of the Court, Injia CJ (as he then was) said:
    

“...The pertinent facts which gives rise to the first issue is indeed peculiar one for which there appears to be no case precedent. This perhaps is a clear indication that such practice where a civil action is brought to stay a criminal proceeding before the same court constituted by the same judge or a different judge, is virtually non-existent in common law jurisdictions. The standing practice all along has been that the criminal process and the civil process in the National Court are set apart by the law and rules of Court, and that any recourse to judicial relief, interim or substantive, is to be found in their respective domain. It is clearly out of procedure for the National Court, constituted by the same judge or a different judge, to be invited to give itself the power through a civil proceeding to review and stay a criminal proceeding before it.

...In my view, there are adequate avenues provided in the Criminal Code, for an accused person to have recourse to, to contest the State case against him or her at each critical phase of the criminal trial process once that process is set in motion in the National Court.”

(Underlining added)

41. Thereafter, the learned Chief Justice went on to outline the avenues that are open for an accused person to use under the criminal process from the point of charging of an accused person through to trial and appeals and or reviews. His honour then concluded at para 11 and 12:
    

“...These procedural safeguards are in-built into the criminal process to give full protection to the constitutional right of the accused to the benefit of presumption of innocence and a fair trial. To my mind those safeguards are elaborate and are most favorable to the accused....

the National Court before which the criminal trial is conducted remains duty-bound to conduct those proceedings fairly and according to law, and accused persons committed to stand trial in the National Court should have no reason for concern. If they have not been treated according to law during the investigations and prosecuted without reasonable or probable cause, they will be vindicated by the National Court, in the course of the criminal trial proceedings.

...For the foregoing reasons, I do not consider the Constitutional notion that the National Court is a Court of unlimited jurisdiction coupled with the discretionary powers provided by s 155(4) of the Constitution, as argued by the appellant, should be read and applied to override the criminal trial process in the National Court that is expressly stipulated...”

42. In the joint judgment of Sakora and Kandakasi JJ (as they then were) went into a survey of the relevant case law on point. That included the decisions of this Court in Somare v. Manek (2011) SC1118 and the decision in Pato v. Manjin [1999] PNGLR 6, as well as a string of National Court decisions. They then discussed the various criminal process stages, and the avenues open to accused persons to seek a remedy for any breach of their rights from the point of arrest to appeals and or reviews following convictions and sentences. Based on those considerations and discussions, they eventually concluded:
    

“...Given the procedural safeguards outlined and discussed above and the hierarchy of the Courts with their specific jurisdictions, it would be inappropriate, an abuse and an improper use of the process of the National Court for an accused to seek to invoke the Court’s civil jurisdiction to raise a criminal process, procedure or substantive issue, without first raising it and exhausting the avenues available at the appropriate levels below it.”

...

It should follow therefore that, unless a person brings an application or proceeding in accordance with the processes and procedures at the relevant and appropriate stages as discussed above, anything else would be an abuse of processes of the Courts or any prescribed procedure. Any such attempt should not be permitted in line with the various pronouncements we have discussed above.

...

it would be an abuse of the process of the National Court and s. 155 (4) of the Constitution itself for an accused person to seek to invoke the civil jurisdiction of the National Court to effectively review criminal investigations and prosecutions, without first exhausting the remedies that are available under the District Court Act, the Criminal Code, and the National Court’s Criminal Practice Rules....”

(Underlining added)

43. Late Kirriwom J who was one of the other members of the Court, agreed with the views expressed by the then Chief Justice, Sakora and Kandakasi JJ. At the same time, his Honour made observations and went into discussions of his own on the criminal process and procedure. He then concluded that, the appellant abused the process of the Court by going to the National Court in its civil jurisdiction. His Honour then pointed out the aspects of abuse at para. 112, in these terms:
    

“When considered from this perspective, the inevitable answer is that the primary judge did not fall into any error when he refused the application for permanent stay of the appellant’s prosecution for criminal charges of misappropriation. There are number of reasons including:

(i) Criminal trial was hi-jacked since completion of the Committal Court jurisdiction after finding of prime facie case in which forum evidentiary issues supporting the charge or charges are weighed and determined.

(ii) Evidence contained in the committal depositions are only relevant for purposes of establishing prima facie case for committal court to examine and determine and that starts off or sets in motion a criminal trial on indictment.

(iii) Prosecution had no obligation to tender any evidence in the court below in response to the applicant’s application to permanently stay his prosecution when that was not the forum that would determine his guilt or innocence.

(iv) The application was misconceived in the way it was presented when there were sufficient avenues open within the criminal track for the appellant to have challenged the charges against him instead of invoking a civil procedure to stop or derail a criminal process that had already begun.

(v) There are more than adequate checks and balances accorded to a person charged with a criminal offence in our legal system and the laws of the country including the National Constitution which are open to the accused at any stage of the proceedings within the criminal track to involve the court’s inherent powers and there is no vacuum that can be filled by invoking the court’s prerogative powers through a civil procedure outside the defined criminal practice and procedure guidelines adopted by Statutes and Criminal Practice Rules of the Court.

(vi) This was not such a hopeless case without any prospect at all of even establishing a prima facie basis for criminal prosecution to lie, a determination of which had already been exercised by the committal court.”

44. Finally, the final member of the Court, her honour, late Davani J, came to the same conclusion. After considering discussions in several relevant local and overseas decisions she concluded:
    

“In this case, the appellants are no doubt looking to the O.12 R.40 National Court Rules remedy, where proceedings can be dismissed for being frivolous and vexatious. That doctrine, practise or remedy, has no place in criminal law, and in the Common Law jurisdiction because it is unheard of and in my view, an abuse of both the criminal and civil process. It is a metamorphosis of a civil remedy into an alien concept, unknown to the practise of Criminal Law and is a practise that is frowned upon by the Courts in the Common Law jurisdiction, as shown in my discussions, above.”

45. We note that the decision in Eremas Wartoto has been endorsed, approved and or applied by subsequent decisions of the Supreme Court such as the one in Pius Pundi v. Chris Rupen (2015) SC1430 where the Court said:
    

“... An accused person facing trial in criminal proceedings who commences civil proceedings in the same court for the purpose of obtaining a determination of questions of law or fact that are at issue in the criminal proceedings will almost invariably be regarded as having engaged in an unnecessary proceeding, giving rise to an abuse of process. This principle was recently affirmed by the Supreme Court in Eremas Wartoto v. The State (2015) SC1411.”

(Underlininig added)

46. Applying the law as represented by this Court’s decision in the Eremas Wartoto case, to the present case, we note the proper venue for the Leader to take his concerns to at the first instance, was his leadership tribunal. Despite that, the Leader did as Eremas Wartoto, by taking his issues to the National Court independently and outside the leadership tribunal process through a civil proceeding. That clearly amounted to an abuse of the process of the Court. If the law was not clear before the decision in Eremas Wartoto clearly enunciated the law for all including the National Court and other courts to follow. Similarly, the Leader with the erroneous endorsement of the learned trial judge abused the process of the Court in making his application in the way he did purportedly pursuant to s. 57 (1), when the decisions of this Court in the Premdas, Raz v. Matane, The State v. Tamate, The State v. Kenneth Kunda Siune and Commander of Beon Correctional Institution v. Mal or the law they represent speak against such purported rights and application before the National Court, outside due process and avenues provided for by law such as those under the leadership tribunal process.
    
47. Finally, we find the Leader with the erroneous endorsement of the learned trial judge also abused the provisions of s. 155 (4) the Constitution. If it was not clear earlier, the decision of this Court in William Powi & Ors v. Southern Highlands Provincial Government & Ors (2006) SC844, per Jalina, Gavara-Nanu & Kandakasi JJ, (Powi v. SHPG) clearly enunciated the proper circumstances in which the powers vested in the Courts under s. 155 (4) of the Constitution can be invoked. That decision carefully considered all previous decisions on point and outline the attributes of s. 155 (4) in the following terms:
    

“From the foregoing, we are of the view that, there are about five important features or attributes of s. 155 (4) of the Constitution. These are as follows:

1. The provision vests the Supreme and National Court with two kinds of jurisdictional powers, namely orders in the nature of prerogative writs and the power to make ‘such other orders as a necessary to do justice in the particular circumstances of a case’ before the Court;
   
2. Although the power is inherent, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead, it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution;
   
3. Where remedies are already provided for under other law, the provision does not apply;
   
4. The provision does not grant the Supreme Court power to set aside or review the decision of another Supreme Court regardless of number it is constituted, except as may be provided for by any law; and
   
5. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law.”

(Underlining added)

48. As can be clearly seen from what this Court has already said, although the powers vested in the Courts under s. 155 (4) are inherent, “it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights.” It is however a grant of general power “to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution”. Obviously, where a remedy or process is prescribed or provided for by law, s. 155 (4) does not apply.
    
49. The law as enunciated in Powi v. SHPG has been adopted and applied by the Supreme Court in many of its subsequent decisions. This includes the decision in Medaing v Ramu Nico Management (MCC) Ltd (2011) SC1156, at para 12, per Davani, Hartshorn and Kariko JJ. That position has not changed as indicated by the recent affirmation by this Court’s decision in Barrick (Niugini) Ltd v Nekitel & Ors (2021) SC2092, per David, Yagi and Makail JJ. Relevantly at para 17, the Court restated the principles in these terms:
    

“As to reliance on Section 155(4) of the Constitution, it is trite law that the provision does not confer primary jurisdictional power. It however confers jurisdiction to issue facilitative orders in aid of enforcement of a primary right: SCR No.2 of 1981 [1982] PNGLR 150 at 154, Uma More v UPNG [1985] PNGLR 401 at 402. Where remedies are already provided for under other law, Section 155(4) does not apply: William Powi (Acting Administrator for Southern Highlands Province) v Southern Highlands Provincial Government (2006) SC844, Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC 1156, Behrouz Boochani v. The State (2017) SC1566.”

(Underlining added)

50. What happened in the present case was a repeat of what is almost readily happening these days in our Courts. Despite the decision in Powi v. SHPG and the many subsequent and recent decisions on point, s. 155 (4) of the Constitution continues to be cited by many lawyers and their clients and some judges continue to endorse such abuse and wrong application of the provisions of s. 155 (4). In the case before us, we note, the learned trial judge gave no consideration to the case law on s. 155 (4) and more so the question of when can s. 155 (4) be correctly invoked. If the learned trial judge correctly considered the law on point, he would have no doubt found that, the Leader had no right that needed to be enforced outside the leadership tribunal process. If the Leader did have a right, that right needed to be raised before the tribunal and not away from the tribunal’s process. Given these, the Leader abused, and the learned trial judge erroneously allowed that abuse without good reason and to arrive at the outcomes that are the subject of this appeal.
    

Does Constitution s. 37 (1) (3) & (11) apply to Leadership Code proceeding?

51. This now leaves us to turn to the issue of interpretation and application of s. 37 (1), (3) and (11) of the Constitution. In respect of that issue, the parties have referred this Court to the decision in Public Employees Association of PNG v. Public Services Commission [1983] PNGLR 206. There the Supreme Court had the opportunity to interpret the provisions of s. 37 (3) of the Constitution and s. 85 of the then Public Service Act (Chp.67). These provisions respective read:
    

Section 37 (3)

“(3) A person charged with an offence shall, unless the charge is withdrawn, be afforded a fair hearing within a reasonable time, by an independent and impartial court.”

Section 85

“(1) An officer who aids, abets, foments or takes part in a strike action that:

(a) interferes with or prevents; or

(b)is intended or calculated to interfere with or prevent, the carrying on of any part of the public services or utilities of the country, or who attempts to do so, shall be deemed to have committed an illegal action against the peace and good order of the country.

(2) Any officer adjudged by the Commission, after investigation and hearing, to be guilty of any action referred to in Subsection (1) may be summarily dismissed by the Commission from the Public Service, without regard to the procedure prescribed in this Act for dealing with disciplinary offences.”

52. The argument in that case for the appellant was that:
    

“...because the section is expressed to deal with an illegal action against the peace and good order of the country, it therefore amounts to an offence against the State or a crime. This being so, the argument concludes, such strike action was either a criminal offence in toto or alternatively in addition to being some sort of disciplinary offence under the Public Service Act, was also a criminal offence, and therefore was covered by s. 37(3) of the Constitution.”

53. The learned trial judge in that case took the view that s. 37(3) of the Constitution did not apply to disciplinary offences. His honour relied on the decisions in SCR No. 1 of 1981; Re Inter-Group Fighting Act, 1977 [1981] PNGLR 151 and SCR No. 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122. The trial judge also extrapolated from the decision in Sudi Yaku v Commissioner of Police, Ex parte The State [1980] PNGLR 27, the ratio that disciplinary offences are something quite distinct from crimes. The Supreme Court per, Kidu CJ and Pratt J agreed with the learned trial judge.
    
54. Their honours endorsed the learned trial judge placing emphasis on the fact that s. 85 occurs under a part of the Act headed, Disciplinary Offences, Board of Inquiry and Appeals. They then expressed the view that:
    

“The very first section of this part states that an officer who commits a breach of this Act ... is guilty of a disciplinary offence and is liable to be dealt with and punished under this Part. One would therefore be forgiven in assuming that the various sections which occur under Pt VII are all involved with disciplinary matters or the disciplinary consequences flowing from a public servant’s conviction for a criminal offence (as in s. 83). Whilst it is true that under s. 26 of the Interpretation Act headnotes, marginal notes, and footnotes do not form part of the provisions in an Act, it is therein specifically stated that chapters, parts, divisions and subdivisions shall be taken as parts of the Act. In this instance, I think this adds considerable weight to the fact that s. 85 though contained in div. 6 headed, Miscellaneous, is nevertheless still a disciplinary offence. We do not agree with the appellant’s submissions that his Honour placed too much weight on the Part’s heading.”

55. Most importantly, their honours further said:
    

“One must look at the words of s. 85 themselves, the nature of the Act in which those words occur and the Part of the Act in which they are used. We do not think such an exercise could lead to the conclusion that s. 85 has created a criminal offence. Apart from these matters it is obvious that no fine or imprisonment can be imposed, under s. 85. Certainly, consequences will follow, consequences which will have a considerable financial effect on the public servant. Just as consequences will follow if one is civilly negligent in a motor vehicle and an adverse judgment may spell financial ruin to a man and his family, so dismissal from the public service may do likewise. The appellant is really saying, in the ultimate, that any act which has an adverse consequence amounts to a criminal offence because a form of penalty follows. In our view however the penalty must be something more than a mere consequence. It must reduce itself in the final analysis to a penalty by way of fine or imprisonment. Only in this way can a matter amount to a crime when combined with elements one and two.”

(Underlining added)

56. Bredmeyer J considered the issues presented in an elaborate way and came to the same conclusion. His honour considered the relevant part of the Public Service Act and its various divisions as well as the whole of the disciplinary process under the Act and concluded:
    

“Section 85 is a section of the Act, so to take part in a strike is to breach the Act and thus by definition to commit a disciplinary offence. Section 85(2) provides that an officer adjudged by the Commission after investigation and hearing to be guilty may be summarily dismissed by the Commission without regard to the procedure prescribed in this Act for dealing with disciplinary offences.”

57. Specifically, regarding s. 37 (3) of the Constitution, his honour considered almost the whole of s. 37 and noted the word “offence” was used repeatedly in the various sub sections and the word “criminal offence” was not used. You noted for example what the some of the subsections such as s. 37 (2), (4)(a), (4)(f), (5), (7), (8) and (16) say and his honour concluded:
    

“The phrases there are taken from the criminal law. They are different from the phrases used in connection with disciplinary offences in the Public Service Act. When a charge is made under the Public Service Act, s. 68, the departmental head decides if the charge is sustained or not, or proved, s. 74. Under s. 85 of the Act, the Commission conducts an investigation and hearing and may find the officer guilty. There is no mention in those and the surrounding sections of a trial, prosecution, conviction or acquittal. I conclude that the word offence in s. 37(3) of the Constitution, reading it with the rest of s. 37 as a whole, means a criminal offence.

(Emphasis added)

58. Additionally, his honour also considered s. 37 (3) together with s. 169 of the Constitution which provides for other tribunals outside the national judicial system. He then concluded:
    

“I consider that s. 37(3) and s. 159(3) can and should be read together as a whole. Section 37(3) provides, inter alia, that a person charged with a criminal offence shall be tried by an independent and impartial court. Section 159(3) says that the only court that can punish for a criminal offence are the official courts of the National Judicial System but excluding certain disciplinary punishments which can be imposed under certain laws. That I think is a complete answer to the appellant’s constitutional argument. I do not consider that the disciplinary offences of the Public Service Act are criminal offences but, even if they are, they are expressly saved by s. 159(3) of the Constitution.”

(Emphasis added)

59. As for s. 37 (11) of the Constitution, the Supreme Court considered the same and gave its interpretation in several cases. The main decision that comes to mind is the decision of the Supreme Court in the Premdas case. In that case, Prentice CJ with the agreement of Raine DCJ noted that “the question of whether a permit to enter PNG confers upon an alien a “civil right” which enjoys the protection of s. 37 (11) and (12) of the Constitution is a difficult one.” His honour then went on to say:
    

“The term “civil right” is not defined. The phrase does appear in art. 6 (1) of the European Convention on Human Rights, from which a comparison would seem to indicate, the whole of our s.37 of the Constitution has been taken. In litigation in Europe the phrase has been taken to encompass rights given under the law meaning in the private not public law fields (Birdi v. Secretary of State for Home Affairs...

...The words “civil rights and obligations” are used to denote the rights and obligations given by the civil law of the country. The article does not extend to administrative procedures, such as licenses given by a licensing authority, nor to the permissions given to aliens to enter a country. Nor does it apply to the leave given or refusal made under the Immigration Act 1971.”

(Underlining added)

60. The third member of the Court, Saldanha J quoted the provisions of s. 37 (11), 12) and (13) of the Constitution and stated the effect of these provisions in the following terms:
    

“A determination of the existence or extent of a civil right or obligation can only be made by an independent and impartial court or other authority prescribed by law or agreed upon by the parties. The proceedings for such a determination must be heard fairly and within a reasonable time. They must be held in public and, while in certain circumstances prescribed by law members of the public can be excluded, the parties and their legal representatives cannot be excluded.

61. His honour considered the provisions of the European Convention on Human Rights and the decision of Lord Denning in In Birdi v. Secretary of State for Home Affairs Judgment of C.A., 11^th Feb., 1975, reported in part in (1976) 92 LQR. 34; (1975) 119 S.J. 322; The Times, 12^th Feb., 1975 and held:
    

“In the instant case the Minister was considering whether or not the applicant’s entry permit should be revoked and the Committee of Review were concerned with determining whether or not the Minister had made the right decision. The Minister and Committee of Review were not concerned with the applicant’s rights under the civil law but were concerned with making a decision under a public law. They were not determining the “existence or extent of a civil right or obligation”. They were acting in their administrative or executive capacity and, to use the words of Lord Denning in Birdi’s case, s. 37(11), (12) and (13) do not extend to such an administrative procedure. There has been no violation of the applicant’s fundamental rights under s. 37(11), (12) and (13).

(Emphasis added)

62. Other members of the Court, Wilson and Andrew JJ arrived at the same view as that of the Chief Justice and Saldanha J on the effect of the provisions of s. 37 (11), (12) (13) of the Constitution.
    
63. Based on the foregoing, we are of the view that this court has already considered the meaning and effect of the provisions of s. 37 (1), (3) and (11) as well as most of the other sub sections of the Constitution. With the exception only of s. 37 (11), all these provisions have already been held to apply only to criminal proceedings where a term of imprisonment or a fine in lieu of imprisonment is often imposed. On a careful consideration of the judgment on point and the wording in s. 37 starting with subsection (1) we agree with the prior decisions of the Supreme Court that s. 37 (1), (3) apply to criminal proceedings or criminal matters. They do not apply to administrative proceedings where consequences such as a term of imprisonment or a fine in lieu of imprisonment is often imposed against an offender. In relation to s. 37 (11), the decision in Premdas case, makes it clear that that provision does not apply to administrative bodies or authorities who make administrative decisions.
    

Nature of Leadership Tribunals

64. In the context of the present case, the question for this Court to determine is, what is the nature of leadership tribunals and their decisions. The answer to that question starts with what the Constitutional Planning Committee (CPC) recommended in its final report.
    
65. As noted in numerous decisions of this Court as in SC Ref No. 1 OF 2017: Special Reference by the Ombudsman Commission in the matter of the Constitution, Section 28(5) and Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645, per Injia CJ, Kirriowm, Kandakasi, Batari and Cannings JJ, a major part of the CPC’s work was on the issue of the kind of leadership we as a nation should have. It also considered and recommended on the kind judicial process the country should have to deal with all questions of leadership breaches. Then ultimately, the CPC, recommended in its final report:
    

“We have given careful consideration to the question as to the kind of tribunal best suited to dealing with alleged breaches of the Code (that is the Leadership Code) and have decided that although all members of the tribunal should be drawn from the judiciary, the tribunal should be separate from an ordinary court. We feel that breaches of the Code are disciplinary offence rather than criminal offences (though some breaches would also constitute criminal offences and be dealt with as such). ...

These tribunals should have all necessary powers and authority to conduct the hearing, summons witnesses, take evidence, make decisions and otherwise function judicial bodies. We envisage that they may adopt procedure which are somewhat more informal than those of a court but that there will be adequate protection of the rights of those charged with a breach of the Code.”

(Underlining added)

66. This recommendation was accepted and found its way in the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). At s.27(4) it stipulates:
    

“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.

(Underlining added)

67. Several decisions of this and the National Court have highlighted the importance of this provision. One of the latest and five-member Supreme Court decision at the highest on point is the decision in SC Ref No. 1 OF 2017: Special Reference by the Ombudsman Commission (supra). That decision held that breaches of the Leadership Code and leadership tribunals are disciplinary and administrative in nature. Speaking of what the OLDRL does, the Court per Kandakasi J (as he then was) said, the CPC through the OLDRL:
    

“...made a deliberate decision to provide for a tribunal to deal with leadership breaches and not a court. As recommended and intended by the fathers of our Constitution, although the tribunal was to be constituted by judicial officers, it was an administrative or disciplinary process tribunal. This clearly entails a much less onerous process to deal with all leadership breaches. Thus, all leadership breaches were intended to be less serious than a criminal offence which can only be dealt with by a court. Of course, the CPC and our Constitution’s fathers did not shut the door to any leadership breach which also constitutes a possible criminal offence from being also dealt with in the criminal process which is far more formal and onerous.

(Underlining added)

68. Injia CJ, who was the president of the Court explained the difference between a tribunal, courts and quasi-judicial tribunals and held:
    

“...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 ... 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).”

(Underlining added)

69. The learned Chief Justice went on to point out:
    

“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... 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.

...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.

...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.”

(Underlining added)

70. Canning J, the trial judge in the instant case was also a member of the Court in SC Ref No. 1 OF 2017: Special Reference by the Ombudsman Commission case. His honour was effectively of the same view as the then Chief Justice and Kandakasi J. His honour noted the administrative nature of leadership tribunals and their proceedings by reference to the CPC report in the following terms at paragraph 175 of the judgment:
    

“...Section 28(5) [OLDRL] reflects the recommendations of the Constitutional Planning Committee as to the nature of Leadership Tribunal proceedings. They are not to be judicial proceedings. In Chapter 3 (The Leadership Code) of its Final Report, the CPC stated at paragraphs 94-96:

We have given careful consideration to the question as to the kind of tribunal best suited to dealing with alleged breaches of the Code and have decided that although all members of the tribunal should be drawn from the judiciary, the tribunal should be separate from an ordinary court. We feel that breaches of the Code are disciplinary offences rather than criminal offences (though some breaches would also constitute criminal offences and be dealt with as such). ...

These tribunals should have all necessary powers and authority to conduct the hearing, summon witnesses, take evidence, make decisions and otherwise function as judicial bodies. We envisage that they may adopt procedures which are somewhat more informal than those of a court, but that there will be adequate protection of the rights of those charged with a breach of the Code.”

(Emphasis added)

71. The foregoing discussions leave no room for any debate or argument as to the interpretation and application of the provisions of Constitution s. 37 (1), (3) and (11) to Leadership Code proceedings and leadership tribunals. This Court has already interpreted and applied these provisions. Clearly, this Court has held that these provisions apply only to criminal proceedings and not to any administrative proceeding. This Court has also held that Leadership Tribunals are administrative in nature by reason of which the provisions of s. 37 (11) of the Constitution do not apply because the tribunal does not “determine any civil right or obligation”. The tribunal instead deals with allegations of any breaches of the Leadership Code which are disciplinary and administrative in nature. The tribunal’s task is to investigate or inquire into any such allegation, make the necessary findings of facts, and make appropriate recommendations for the executive arm of government to make a final decision.
    
72. In addition to the matters discussed above, the discussions on the Leader and the learned trial judge going against relevant and applicable decisions of the Supreme Court, going outside the leadership tribunal process, and abusing s. 57 (1) and s. 155 (4) of the Constitution from paragraph 39 to 50 above, equally apply here. This is so, with the necessary modification to suit the context under s. 37 (1), (3) and (11) of the Constitution. In short, the learned trial judge fell into serious error when he:
    

(1) undertook an exercise of re-interpreting the provisions of Constitution s. 37 (1), (3) and (11) of the Constitution when this Court its decisions in the Premdas, Public Employees Association of PNG v. Public Services Commission; SC Ref No. 1 OF 2017, Special Reference by the Ombudsman Commission (supra), a decision the learned trial judge was part of, had already interpreted and applied these provisions;

(2) failed to comply with the dictates of Constitution Sch. 2. 9 (1) which compelled him to follow the binding decisions of this Court and in so doing clearly go against the binding decisions of this Court;

(3) failed to give any reason consistent with the principles or basis on which the Supreme Court itself can depart from its own earlier decisions although that would not have given the learned trial judge authority to go against the decisions of this Court; and

(4) allowed the Leader to bring his application in abuse of ss 57 (1) and 155 (4) of the Constitution and succeed outside the prescribed process, which was the leadership tribunal process and in any case, contrary to the decisions of this Court in the Eremas Wartoto and Powi v. SHPG cases and their respective line of cases.

Effect of foregoing decisions on the remaining grounds of Appeal

73. The result of our discussions and answers to the questions or issues we have addressed thus far is very clear. The learned trial judge erroneously assumed jurisdiction he did not have and entertained the Leader’s application which was not correctly before him. The correct place and avenue for the Leader rested and rests in the leadership tribunal process and not in an application to the National Court under s. 57 (1) and or s. 155 (4) of the Constitution. The delays in his tribunal coming to a final decision on the various Leadership Code breach charges he was facing, was in the main, contributed to by himself in ceasing to be a member of Parliament or his failing to hold a leadership position that is covered by the Leadership Code. The leadership tribunal, subject to a re-appointment of the members of the tribunal, was seized of the matter and the National Court had no power whatsoever to interfere and intervene in the way it did until the leadership tribunal itself has come to a final decision. If after the final decision the Leader is still aggrieved, he could go to the National Court only by way of a judicial review and not otherwise.
    
74. Our country’s founding fathers made a deliberate choice to establish the Leadership Code and a process for the discipline of leaders who fail to observe or otherwise act in breach of the Code. Our founding fathers decided to create a specialised process through the leadership tribunal process to specifically deal with any such misconduct or behaviour of leaders. Hence, our founding fathers decided in their wisdom to vest the relevant and necessary powers in leadership tribunals to deal with all questions and issues associated or connected to any Leadership Code breaches. In that respect, no power was vested in the National Court or any other court to interfere and intervene in the way the learned trial judge did in this case.
    
75. This Court’s unanimous decision in the matter of SC Ref No. 5 of 1980, Joseph Auna, Re Leadership Tribunal appointed under The Organic Law on the Duties and Responsibilities of Leadership [1980] PNGLR 500 as reviewed and varied by the majority (Kidu CJ, Amet, Los, and Andrew JJ) in SCR No 2 of 1992; Re The Leadership Code [1992] PNGLR 336, has already determined what becomes of a leader who ceases to be a leader and later becomes a leader. In short, such a leader is subject to prosecution on previous charges and if found guilty, could be dismissed from his or her current office. The process recommences with the appointment of members of a tribunal. Where to pick up from and what becomes of the leader, whether previously suspended or not and consequences would be matters well within the exclusive domain of the leadership tribunal to deal with.
    
76. The issues this case presented before the learned trial judge, and he chose to deal with erroneously, are matters well within the power and ability of the leadership Tribunal to deal with. The Tribunal will and is well placed to consider each of those issues against the objects of the Leadership Code and the binding decisions of the Supreme Court and the need to appropriately deal with leaders who are in breach of the Code. That necessarily includes all procedural issues such as those that were presented by the Leader in this case by his ceasing to be a member of Parliament for more than two terms and later being re-elected and his prior suspension and its effect on becoming a leader.
    
77. The passing away of two members of the Tribunal will mean the same members of the tribunal that dealt with the Leader’s case will not be appointed. That is, however, not a serious problem, and one that cannot be easily resolved. The appointing authority, the Chief Justice, was in the process of resolving that issue when the learned trial judge erroneously intervened and terminated the Tribunal process and a matter that was before the Tribunal. Following this decision, the Chief Justice will be able to resolve the issue by appointing new members of the Tribunal. The members thus appointed will be able to deal with all the relevant and related issues. They will of course be guided by this and the prior decisions of this Court on the application of the provisions of ss. 37 (1), (3) (11), 57, 41 and s. 155 (4) of the Constitution and the other constitutional law considered against the provisions of the OLDRL. The National Court and the formal court process is not authorised in any manner or form to play a part in the leadership tribunal process except only through the well accepted process of judicial review of a final decision of a leadership tribunal, pursuant to s.155(4) of the Constitution. Until then, the National Court is obliged to respect the process and refrain from any interference or intervention in any manner or form, and thereby allow for the duly authorised process through the authorised authority to take their course.
    
78. As the National Court did not have the necessary jurisdiction and power to hear and determine the issues raised by the Leader, it lacked the necessary power and authority to make the findings of fact the learned trial judge made, come to the decisions he arrived at and grant the various orders and or reliefs he granted. The learned trial erroneously usurped the powers of the leadership tribunal and hijacked the process under the OLDRL from taking its proper course. The learned trial judge’s actions and decisions and the reliefs he granted were void ab initio and are of no force and effect.
    

Decision and Orders

79. For these reasons, we would uphold the appeal in its entirety and grant the consequential reliefs the appellants are praying for. Accordingly, we make the following orders:
    
    1. The appeal is allowed in its entirety.
       
    2. The judgement and orders of Cannings J delivered on 27^th July 2020 in OS (HR) No 3 of 2020 are quashed and set aside forthwith in their entirety.
       
    3. The First Respondents entire action in OS (HR) No. 3 of 2020 is dismissed forthwith.
       
    5. The First Respondent shall pay the Appellants’ costs of and incidental to this appeal and the National Court proceeding, OS (HR) No. 3 of 2020.
       

________________________________________________________________
Geroro Lawyers: Lawyers for the Appellants
Leahy Lewin Lowing Sullivan Lawyers : Lawyers for the First Respondent

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^[1] See Prai and Ondowame [1979] PNGLR 42, per Grevill-Smith J; The State v. Peter Painke (No 2) [1977] PNGLR 141, per Frost CJ (as he then was) and The State v. Kwambol Emgogol (Unreported, judgment N91, 7 April 1977 at 6), per O’Meally AJ and Lowa, & Ors v. Akipe & Ors [1991] PNGLR 522; [1992] PNGLR 399, per Kidu CJ, Woods, Hinchliffe and Sheehan JJ
^[2] See also Lovika v. Malpo (2019) SC1895, per Kandakasi DCJ, Bona and Shepherd JJ. at paras 24 – 25; Dekena v. Kuman (2018) SC1715 per Kandakasi J (as he then was), Geita and Lindsay JJ. at paras 14 – 17; The State v. Tamate (2021) SC2132, per Kandakasi DCJ, Manuhu, Makail, Kariko & Miviri JJ and Hagahuno v. Tuke (2020) SC2018, per Kandakasi DCJ, Kirriwom, Mogish, Manuhu and Makail JJ) at paras 70 – 71.

^[3] The others are: Kamit v Aus-PNG Research & Resources Impex Ltd (2007) N3112, Petrus & Gawi v Telikom PNG Ltd (2008) N3373, Joyce Avosa v Rene Motril (2014) N5732, Paru v Kotigama & Bmobile-Vodafone (2015) N6089, David Simon v Michael Koisen (2018) N7075.
^[4] For others, see for example, The State v. Kenneth Kunda Siune (2021) SC2070, per Kandakasi DCJ, Thompson and Berrigan JJ and Commander of Beon Correctional Institution v. Mal (2022) SC2186, per Kandakasi DCJ, Makail and Anis JJ.