State v Saul [1988-89] PNGLR 337 (24 August 1989)

Papua New Guinea Law Reports - 1988-89

[1988-89] PNGLR 337 - SCR No 1 of 1989; The State v Patrick Saul 

[1988-89] PNGLR 337

SC372

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REFERENCE NO 1 OF 1989 IN THE MATTER OF THE STATE

V

PATRICK SAUL

Waigani

Kidu CJ Kapi DCJ Amet Los Barnett JJ

3 August 1989

24 August 1989

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea - Validity of laws - Public Prosecutor - Independence of - Institution of proceedings for quasi-military offences - Criminal Code requiring written consent of Prime Minister - Provisions of Code unconstitutional - Criminal Code (Ch No 262), s 52(5) - Constitution, ss 176, 177, Sch 1.19.

CONSTITUTION LAW - Administration of justice - The Public Prosecutor - Independence of - Not subject to direction or control except as provided by Constitution - May be directed by Head of State on advice - No statutory provision for “regulation” of - Regulation not including prohibition - Criminal Code (Ch No 262), s 52(5) - Constitution, ss 176, 177, Sch 1.19.

LAWYERS - Public Solicitor - Independence of - Not subject to direction or control except as provided by Constitution - Constitution, ss 176, 177, Sch 1.19.

Held

Section 52(5) of the Criminal Code (Ch No 262) which “prohibits” the prosecution of an offence relating to quasi-military organisations without the written consent of the Prime Minister is unconstitutional as being in conflict with s 176 and Sch 1.19 of the Constitution: in performing his constitutional role, including that relating to the prosecution of criminal offences, the Public Prosecutor is not subject to direction or control by any person or authority subject to two exceptions contained in the Constitution itself, namely, s 176(3)(b) which provides that the Head of State acting with, and in accordance with the advice of the National Executive Council has power to give directions on any matter that might prejudice the security, defence or international relations of Papua New Guinea; and Sch 1.19, which provides for “regulation” under a Constitutional Law or an Act of Parliament.

NTN Pty Ltd v The State [1986] PNGLR 167 at 178-179, applied.

Cases Cited

NTN Pty Ltd v The State [1986] PNGLR 167.

Constitutional Reference

This was a reference made to the Court pursuant to s 18(2) of the Constitution which provides for the reference to the Court of questions relating to the interpretation of Constitutional Laws. The question referred was whether s 52(5) of the Criminal Code (Ch No 262) was unconstitutional as being contrary to s 176 and s 177 of the Constitution.

Counsel

V Noka, for the State.

A Jerewai, for the accused.

Cur adv vult

24 August 1989

KIDU CJ KAPI DCJ AMET LOS BARNETT JJ: This Reference by the National Court was argued on 3 August 1989 and the Court ruled that s 52(5) of the Criminal Code (Ch No 262) was unconstitutional as being contrary to s 176(3) of the Constitution. We also ordered that the State pay the accused’s taxed costs.

We now publish our reasons. The question raised was:

“Is section 52(5) of the Criminal Code (Ch No 292) unconstitutional as it appears to be inconsistent with sections 176 and 177 of the Constitution in that it vests in the Prime Minister the power to decide whether or not a person should be prosecuted for an offence under s 52(1), (2) and (3) of the Criminal Code (Ch No 292).”

We set out hereunder the relevant laws:

SECTION 52(5) OF THE CRIMINAL CODE

“A prosecution for an offence against this section shall not be instituted without the written consent of the Prime Minister.” (Our emphasis.)

SECTIONS 176 AND 177 OF THE CONSTITUTION

“176.   Establishment of Offices

(1)      Offices of Public Prosecutor and Public Solicitor are hereby established.

(2)      The Public Prosecutor and the Public Solicitor shall be appointed by the Judicial and Legal Services Commission.

(3)      Subject to this Constitution:

(a)      in the performance of his functions under this Constitution the Public Prosecutor is not subject to direction or control by any person or authority; but

(b)      nothing in paragraph (a) prevents the Head of State, acting with, and in accordance with, the advice of the National Executive Council, giving a direction to the Public Prosecutor on any matter that might prejudice the security, defence or international relations of Papua New Guinea (including Papua New Guinea’s relations with the Government of any other country or with any international organization).

(4)      The Prime Minister shall table in the National Parliament any direction to the Public Prosecutor at the next sitting of the Parliament after the direction is given unless, after consultation with the Leader of the Opposition, he considers that tabling of the direction is likely to prejudice the security, defence or international relations of Papua New Guinea.

(5)      Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution the Public Solicitor is not subject to direction or control by any person or authority.”

“177.   Functions of the Public Prosecutor and the Public Solicitor

(1)      The functions of the Public Prosecutor are:

(a)      in accordance with an Act of the Parliament and the Rules of Court of the Supreme Court and the National Court, to control the exercise and performance of the prosecution function (including appeals and the refusal to initiate and the discontinuance of prosecutions) before the Supreme Court and the National Court, and before other Courts as provided by or under Acts of the Parliament; and

(b)      to bring or to decline to bring proceedings under Division III.2 (leadership code) for misconduct in office.

(2)      The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular:

(a)      to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and

(b)      notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and

(c)      in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be:

(i)       limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and

(ii)      granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.

(3)      A person aggrieved by a refusal of the Public Solicitor to provide legal aid may apply to the Supreme Court or the National Court for a direction under Subsection (2)(b).

(4)      For the purposes of this section the need of a person is to be interpreted in relation to each particular case and, without limiting the generality of this expression, account shall be taken of the means of the person to meet the probable cost of obtaining alternative legal assistance, the availability of such assistance and the hardship which might result to the person if compelled to obtain legal assistance other than by the Public Solicitor.

(5)      An Act of Parliament may make provision for the Public Solicitor to make a reasonable charge for services provided by him to persons in need of his help whom he considers are able to make a contribution towards the cost of these services.

(6)      An Act of the Parliament may confer, or may provide for the conferring of, additional functions, not inconsistent with the performance of the functions conferred by Subsections (1) and (2), on the Public Prosecutor or the Public Solicitor.”

It is to be noted that s 52(5) is in mandatory terms — a prosecution for an offence under s 52 “shall not be instituted” without the Prime Minister’s written consent. The provision is a pre-Independence one — that is, it was part of the pre-Independence Criminal Code enacted by the House of Assembly in 1974 and amended in 1975 (May 1975) but did not come into operation until 1 November 1975, six weeks after Independence. It was originally s 50b(5) and it read as follows:

“A prosecution for an offence against this section shall not be instituted without the written consent of the Chief Minister.”

Of course, by the time the Criminal Code came into operation, the Chief Minister had become the Prime Minister. This historical account is relevant in that the power given to the Chief Minister was in an Act passed by the pre-Independence House of Assembly before the Constitution came into operation on 16 September 1975. It was, therefore, not a deliberate provision enacted in defiance of what the Constitution now provides.

The Constitution gives the prosecution function to the Public Prosecutor with respect to criminal matters in the National Court and s 176(3)(a) is in clear terms, that in performing his role, including that relating to prosecuting criminal offences, he or she is not subject to directions or control by any person or authority subject to two exceptions contained in s 176(3)(b) and Sch 1.19. Section 176(3)(b) is already set out. Schedule 1.19 states as follows:

“Where a Constitutional Law provides that a person or institution is not subject to control or direction, or otherwise refers to the independence of a person or institution, that provision does not affect:

(a)      control or direction by a court; or

(b)      the regulation, by or under a Constitutional Law or an Act of the Parliament, of the exercise or performance of the powers, functions, duties or responsibilities of the person or institution; or

(c)      the exercise of jurisdiction under Division III.2 (leadership code), or Subdivision VIII.I.B. (the Auditor-General), or Subdivision VIII.I.C. (the Public Accounts Committee),

and does not constitute an appropriation of, or authority to expend, funds.”

We consider that s 52(5) of the Criminal Code is to be tested under both s 176(3)(b) and Sch 1.19 of the Constitution.

There cannot be any argument with the obvious fact that s 52(5) of the Criminal Code is contrary to s 176(3)(b) of the Constitution. It is the Head of State, on advice of the National Executive Council, who may direct the Public Prosecutor, and not the Prime Minister. The effect of s 52(5) is to stop prosecutions in the National Court unless the Prime Minister’s written consent is given, that is, the Public Prosecutor cannot proceed unless the Prime Minister’s written consent to prosecute is obtained. Now this is contrary to s 176(3) which is the opposite, that is, the Public Prosecutor proceeds unless directed by the Head of State on advice.

SCH 1.19(B)

This provision talks about “regulation” under a Constitutional Law or an Act of the Parliament. There is, of course, no Constitutional Law which allows the regulation of the Public Prosecutor’s prosecution function. Is s 52(5) of the Criminal Code a provision in an Act of Parliament which regulates the exercise or performance of the Public Prosecutor’s powers, functions, duties or responsibilities? We consider that s 52(5) goes beyond regulation. It actually prohibits the Public Prosecutor from prosecuting unless he/she obtains the Prime Minister’s written consent. There is a well-known rule that a power to regulate does not include the power to prohibit: see NTN Pty Ltd v The State [1986] PNGLR 167 at 178-179.

Subsection (5) is a very distinct section. The rest of s 52 can stand without it.

Question answered “Yes”

Lawyer for the State: Public Prosecutor.

Lawyers for the accused: Alois Jerewai & Co.