Application by Amin [1991] PNGLR 1 (6 August 1982)

1991

Papua New Guinea Law Reports - 1991

[1991] PNGLR 1 - SCR No 2 of 1982; Re Opai Kunangel Amin 

[1991] PNGLR 1

SC231

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SCR NO 2 OF 1982; RE KUNANGEL

IN THE MATTER OF A REFERENCE UNDER S 18(2) OF THE CONSTITUTION BY AN INDEPENDENT TRIBUNAL APPOINTED PURSUANT TO S 27(7)(E) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR PURSUANT TO S 27(2) OF THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES OF LEADERSHIP IN RESPECT OF OPAI KUNANGEL AMIN

Waigani

Kapi DCJ Andrew Bredmeyer Kaputin Gajewicz JJ

28-29 April 1982

6 August 1982

CONSTITUTIONAL LAW - Constitution - Leadership Code - Tribunal appointed to hear charges of breaches of Organic Law - Member of Parliament - Automatic suspension from “duty” - Whether resignation from office effective - Jurisdiction of Tribunal ceases on resignation - Constitution, s 104(2)(c) - Organic Law on the Duties and Responsibilities of Leadership, s 28.

PARLIAMENT - Member of Parliament - Resignation from office - How effected - No requirement for Speaker to accept - “Duties” and “office” distinguished - Effect of resignation on suspension under Leadership Code - Constitution, s 104(2)(c) - Organic Law on the Duties and Responsibilities of Leadership, s 28.

PRECEDENT - Supreme Court decisions - Rearguing - Five judge decision - Not to be questioned in short term unless clearly wrong.

The Constitution of the Independent State of Papua New Guinea, s 28(1)(g), provides:

“(1)    For the purposes of this Division, an Organic Law:

...

(g)      shall establish independent tribunals that:

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

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

The Organic Law on Duties and Responsibilities of Leadership, s 28, provides that when a matter is referred to such a tribunal the leader to whom the Organic Law applies, shall be “suspended from duty”.

Section 104(2)(c) of the Constitution provides:

“(2)    The seat of a member of the Parliament becomes vacant:

...

(c)      if he resigned his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or ...”

Held

(1)      (Kaputin J dissenting) A Member of Parliament may “resign his seat” under s 104(2)(c) of the Constitution whilst under suspension from duty under s 28 of the Organic Law on Duties and Responsibilities of Leadership.

(2)      The Member of Parliament ceases to be a member upon tendering his resignation independently of the Speaker’s acceptance thereof.

(3)      (Kaputin J dissenting) A Tribunal appointed under s 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership ceases to have jurisdiction to hear and determine a reference in respect of a Member of Parliament or Minister of State who, whilst under suspension, resigns his seat under s 104(2)(c) of the Constitution.

SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500, followed and applied.

(Per Kapi Dep CJ with whom Andrew J, Bredmeyer J and Gajewicz J agreed) The meaning of the word “duty” in s 28 of the Organic Law on Duties and Responsibilities of Leadership is narrower than the meaning of the word “office” as used in s 104 of the Constitution.

Discussion of the distinction between suspension from “duty” and occupation of an “office”.

(By the Court) As a matter of practice decisions of the Supreme Court (particularly a five member court) should not be questioned before another Court composed of different judges within a short period of time. Where, however the principles of law enunciated are clearly wrong, the Court is not bound by its own decisions.

Cases Cited

Bank of England v Vagliano Bros [1891] UKLawRpAC 6; [1891] AC 107.

Bird v British Celanese Ltd [1945] KB 336.

Browne v Commissioner for Railways [1935] NSWStRp 69; (1935) 36 SR (NSW) 21.

Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1.

Cooper v Wilson [1937] 2 KB 309.

Cory Lighterage v Transport and General Workers’ Union [1973] 1 WLR 792; [1973] 2 All ER 558.

Dunn v The Queen [1895] UKLawRpKQB 205; [1896] 1 QB 116.

Edwards (Inspector of Taxes) v Clinch [1980] 3 WLR 521; [1980] 3 All ER 278.

Hanley v Pease & Partners Ltd [1915] 1 KB 698.

Hunkin v Siebert [1934] HCA 43; (1934) 51 CLR 538.

Inland Revenue Commissioner v Hambrook [1956] 2 QB 641.

SCR No 5 of 1980, Re Joseph Auna [1980] PNGLR 500.

Kilgour v Cummings [1941] NZGazLawRp 102; [1941] NZLR 972.

Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549.

Marshall v English Electric Co Ltd [1945] 1 All ER 653.

Morris v M’Cullock [1763] EngR 68; (1763) Amb 432; 27 ER 289.

Parker v Lord Clive [1769] EngR 48; (1769) 4 Burr 2419; 98 ER 267.

State, The v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491.

Vertue v Lord Clive [1769] EngR 70; (1769) 4 Burr 2472; 98 ER 296.

Waleford Borough case (1870) 2 O’M & H 24.

Wallwork v Fielding [1922] 2 KB 66.

Constitutional Reference

This was a reference to the Supreme Court pursuant to s 18(2) of the Constitution, which provides that where any question relating to the interpretation or application of any constitutional law arises in any court or tribunal other than the Supreme Court, the court or tribunal may refer the matter to the Supreme Court. The questions which were referred by a tribunal established pursuant to s 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership are set out at the beginning of the reasons for judgment of Kapi Dep CJ.

Counsel

K Roddenby, for the Ombudsman Commission, to argue the affirmative case.

K Kara, for Opai Kunangel Amin, to argue the negative case.

Cur adv vult

6 August 1982

KAPI DCJ: This is a reference under s 18 of the Constitution. The matter has been referred to the Court by a tribunal appointed under the provisions of the Organic Law on Duties and Responsibilities of Leadership. I shall simply refer to this as the Organic Law. The tribunal was established to hear a reference made by the Public Prosecutor on charges of 11 counts of breaches of the provisions of the Organic Law. The tribunal referred the following questions to the Supreme Court for its decision:

1.       Does the tribunal have jurisdiction to hear and determine a reference in respect of a Member of Parliament or Minister of State who whilst under suspension following the application of s 28 of the Organic Law on Duties and Responsibilities of Leadership tenders his resignation to the Speaker of the National Parliament under s 104(2)(c) of the Constitution?

2.       Does such Member cease to be a leader on tendering his resignation in writing to the Speaker under such section independently of the Speaker’s acceptance thereof?

At the hearing, Mr Roddenby, the counsel appearing for the Public Prosecutor, made an application to amend the questions in the reference to add a further question as follows:

“Does a Leadership Tribunal have jurisdiction to investigate a reference in respect of a Member of Parliament or Minister of State if that Member or Minister tenders his resignation to the Speaker after the Ombudsman Commission has referred allegations of misconduct in office to the Public Prosecutor under s 29 of the Constitution?”

Mr Kara who appeared for Mr Kunangel in this reference objected to this application.

I would not grant the application on the basis that this particular question was not raised before the tribunal which referred the questions. Questions under s 18(2) of the Constitution are referred by a court or tribunal, and all questions to be referred under this provision must be brought before such tribunal. It is the tribunal which determines or sets forth the questions to be referred and in addition such tribunal may have to make findings of facts which are necessary for the proper consideration of the questions by the Supreme Court: see s 4(2) of the old Supreme Court Rules 1977. I think the proper procedure would be to bring the application before the tribunal and it is for the tribunal to consider amendment to the questions in the reference. After all, the matter is before the tribunal and it alone decides what questions regarding the interpretation and application of the Constitution need to be determined by the Supreme Court for the purposes of its proceedings.

QUESTION 1

The main issue raised by this question is whether the tribunal has jurisdiction to determine the reference before it. The jurisdiction issue was referred on the basis of the conclusion reached by the tribunal that Mr Kunangel was suspended under s 28 of the Organic Law on Duties and Responsibilities of Leadership; and subsequently to the suspension, he tendered his resignation from the Parliament under s 104(2)(c) of the Constitution.

It appears from the summary of counsel’s arguments before the tribunal, which appears in the ruling of the tribunal that no arguments were raised before the tribunal as to when a reference of a matter to the tribunal is formally constituted under s 27 of the Organic Law. It is at this point when the matter is referred to the tribunal, that the leader is automatically suspended from duty under s 28 of the Organic Law. I make reference to this issue at this point because both counsel in their submissions disputed the date on which the charges were referred to the tribunal. These disputes arise from a lack of provision under the Organic Law and the regulations on the manner of filing and presenting charges before the tribunal. Strictly speaking, the court cannot address itself to this issue as the issue was not raised before the tribunal and has not been referred to this Court under its reference and I have assumed for the purposes of determining the jurisdiction of the tribunal that the suspension happened before the tendering of the resignation. However, I can only make the following comments:

Proceedings regarding breaches of the provisions of the Organic Law on Duties and Responsibilities of Leadership are set out under the Organic Law, and any defects or inadequacy in that law as to how a charge is referred to or commenced before the tribunal must be corrected by legislation. In fact, s 41 of the Organic Law on Duties and Responsibilities of Leadership authorises the Head of State to make provision in this regard. This Court would have power to provide for lack of provision for matters before it but does not have the power to make provision for a tribunal such as this tribunal: see s 185 of the Constitution. However, as a matter of construction of the relevant provisions, the matter is to be referred to the tribunal, that is to say to all of the members and not just one. How this is done should be prescribed by regulation under s 41 of the Organic Law: see also s 258 of the Constitution.

It was submitted by counsel for the Public Prosecutor that where a matter is referred and the leader is suspended under s 28 of the Organic Law, the leader loses his right to resign from office. He submitted that this is the effect of the proper construction or interpretation of the words “suspend” or “suspension” in s 28 of the Organic Law. In support of this submission, he cited two authorities, Wallwork v Fielding [1922] 2 KB 66 and Cooper v Wilson [1937] 2 KB 309. He relied particularly on a passage in the latter case from the judgment of Scott LJ (at 335):

“... It was argued before us that, although not expressed, such a provision (namely where notice of resignation has been given and subsequently the charge is laid before the expiration of the notice, then such notice will cease to run) must be implied, because in its absence there might not be sufficient time to take all the proceedings required by the Police Regulations for prosecution of a discipline charge up to and including the final stage of confirmation by the Watch Committee, and that it was impossible that Parliament should have intended such an impasse. But this argument does not carry much weight, for there is a simple answer. In a borough police force the Watch Committee has complete discretion at any moment to suspend a constable; and in that event all his right as a constable will be suspended — including his right to rely on his current notice of resignation.”

He submitted that the right to resign was suspended and that resignation by Mr Kunangel is not effective. The tribunal therefore should continue with the proceedings.

In a contract of employment at common law, there is no implied power of suspension without express or implied provision in the contract itself: see Hanley v Pease & Partners Ltd [1915] 1 KB 698; Marshall v English Electric Co Ltd [1945] 1 All ER 653. However, the situation is different at common law where the Crown is the employer. The Crown has power to suspend its servants: see Hunkin v Siebert [1934] HCA 43; (1934) 51 CLR 538; Browne v Commissioner for Railways [1935] NSWStRp 69; (1935) 36 SR (NSW) 21.

Where the power of suspension is given under a contract of employment and that power is exercised by the employer, that has the effect of suspending the relations between the parties under the contract. The effect of this suspension is best described by Scott LJ in the case of Bird v British Celanese Ltd [1945] KB 336 at 341:

“... the whole contract is suspended, in the sense that the operation of the mutual obligations of both parties is suspended; the workman ceases to be under any present duty to work, and the employer ceases to be under any consequential duty to pay. That is the natural meaning of the word `suspend’ when applied to a contract of employment, and I think it is also its legal meaning”. [Emphasis added.]

See also Wallwork v Fielding (supra); Cooper v Wilson (supra); Cory Lighterage v Transport and General Workers’ Union [1973] 2 All ER 558 at 566, per Lord Denning.

Where the Crown exercises the power of suspension it does not necessarily have the effect of provisionally or temporarily vacating the office and does not necessarily deprive the officer of his or her right to salary: see Hunkin v Siebert. Suspension by the Crown may also operate as a temporary suspension of the whole of the contract of employment: see Browne v Commissioner for Railways (at 24).

I have not been able to find a case of which deals directly with the effect of suspension on the right to resign. The passage upon which Mr Roddenby relies in Cooper v Wilson was expressed by way of obiter dictum. In that case it was held that the resignation of the constable took effect before the Watch Committee met. Furthermore, in that case the power of suspension was not exercised. The view expressed by Scott LJ in Cooper v Wilson was based on a passage from the case of Wallwork v Fielding. The passage relied on in the latter case was in turn deducted from the case of Hanley v Pease & Partners Ltd. Having examined the facts of each of these cases they do not deal with the question of the effect of suspension on the right to resign. With respect, it is questionable whether the case of Wallwork v Fielding supports the principle propounded by Scott LJ regarding the effect of suspension on the right to resign. The authority of this passage must be questioned in the light of another case. In Marshall v English Electric Co Ltd, the contract of employment between the parties could be determined by an hours’ notice by either of the parties. That is to say, if the man employed wished to resign, he would give one hours’ notice. It was held in that case that there was an implied power of suspension. Lord Goddard said (at 655):

“if a man challenged the right of the employer to suspend him, or, while acknowledging the right, did not wish to submit to it a hour’s notice from one or the other would have been the answer.”

It would appear from this passage that a suspension of an employee would not deprive the employee of the right to give notice to resign.

It appears to me, therefore, that I cannot import into the word “suspend” or “suspension” (under s 28 of the Organic Law) the meaning that is contended by counsel for the Public Prosecutor.

Can the argument put forward by counsel for the Public Prosecutor be implied into the provisions of the Organic Law and the Constitution as a matter of construction?

Under what provision of the Organic Law can it be implied that suspension of a Member of Parliament under s 28 of the Organic Law takes away the right of resignation? As I have tried to point out, the effect of suspension on the right of resignation at common law is doubtful. Some assistance, however, can be gained from s 104 of the Constitution which deals with the question of resignation.

Section 104 of the Constitution deals with the normal term of office of a Member of Parliament and how a Member may vacate his seat. Amongst other ways of vacating the seat, a Member may:

(a)      resign: s 104(2)(c) of the Constitution; or

(b)      be dismissed from office: s 104(2)(h) of the Constitution.

These ways of vacating the office are put in the alternative. The latter method of vacating the seat involves proceedings for removal from office under the Organic Law. If the proceedings for removal (including suspension) were intended to affect the right of resignation, the legislature would have expressly made the right to resign subject to proceedings for removal under s 104(2)(h) of the Constitution. Absence of this from s 104 of the Constitution supports the view that suspension does not affect a Member’s choice of resigning from the seat.

This conclusion is confirmed when the Organic Law construed in the light of s 10(a) of the Constitution which states that all written laws must be read and construed subject to the Constitution. This means that the operation of the provisions of the Constitution cannot be affected or overridden by the provisions of the Organic Law. Reading s 28 of the Organic Law in this way, suspension cannot take away the right to resign which is given by the Constitution. To read the right of resignation as subject to a power of suspension would be reading the Constitution subject to the Organic Law. Such a reading would lead to the invalidity of the provisions of the Organic Law. I am of the opinion that the legislators intended the meaning which I have adopted. This is an harmonious construction of s 104(2)(c) and s 104(2)(h) of the Constitution.

In any case I consider that suspension under s 28 of the Organic Law is limited. A person who is alleged to have committed misconduct in office is “suspended from duty”. Mr Roddenby has submitted that the word “duty” is to be read synonymously with the word “office”. I do not consider that the word “duty” has been used to mean “office”. It is to be noted that both these words are used in s 28. They convey a different meaning. The word “office” has a broader meaning than the word “duty”. The word “office” is used to mean the position which is occupied by the office-holder. This includes the “duty” or “duties” to be performed by virtue of the office. The word “duty” is used to mean the functions and the proper actions which the law authorises to be performed in the office: see Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1 at 6, per Dixon CJ.

Consequently, if an officer is suspended from duty, he is only suspended from the performance of the duties but he is still an occupant or office-holder of the position. This is to be contrasted with suspension of a Constitutional Office-Holder from office under s 9 of the Organic Law on the Guarantee of the Rights and Independence of the Constitutional Office-Holders: see also suspension of the Prime Minister from office under s 142(6) of the Constitution. It appears to me that s 28 of the Organic Law simply suspends the leader from performing the duties and functions assigned to him by virtue of his office. Such a suspension also affects the salary because salary is connected to the performance of duties and functions. Such a suspension does not in any way affect the position or office occupied by a Member of the Parliament. Thus the right of a Member to resign from the seat is not affected.

Mr Roddenby has submitted that such a narrow interpretation of the word “duty” under s 28 of the Organic Law would be contrary to s 28(4) of the Constitution. He submitted that it is a rule of interpretation that, as far as possible, provisions of the Constitution should be construed so as to be in harmony with each other. He made this submission to support his earlier contention that the word “duty” should be interpreted to mean “office”. However, I do not consider that the narrow interpretation of the word “duty” under s 28 of the Organic Law is inconsistent with s 28(4) of the Constitution. Section 28(4) of the Constitution can be best described as delegation of power to the Organic Law to make provisions for suspension of persons pending investigation of misconduct in office. It does not set out the exact particulars of suspension to be provided for by the Organic Law. For instance it gives no guidance as to type of suspension, length, when it should begin to run, whether suspended officer should be on full pay, etc. These are matters left to be included in the provisions of the Organic Law. Suspension from performance of duty is within the powers given by s 28(4) of the Constitution.

I have concluded, therefore, that resignation by a Member of Parliament can not be affected by suspension from duty. It follows, therefore, that Mr Kunangel has effectively resigned as Member of the Parliament.

On the authority of SCR No 5 of 1980, Re Joseph Auna [1980] PNGLR 500, as Mr Kunangel is no longer a leader, the tribunal can have no jurisdiction to deal with him. It is obvious from the provisions relating to penalties for misconduct in office that these provisions can only apply to leaders who are in office. Penalties provided under the Leadership Code (Alternative Penalties) Act 1976 can only be imposed on leaders in office. They are designed to discipline leaders in office. The ultimate penalty of removal can only be imposed on a leader in the office. There is no power in the tribunal to purport to recommend the imposition of any of these penalties on a person who is not a leader. The Court of Appeal in England was faced with a similar situation in Cooper v Wilson. In that case, a constable was charged with a disciplinary offence whilst a constable but resigned before the penalties purported to be imposed were confirmed. The constable effectively resigned before completion of hearing. Green LJ said (at 320):

“It seems to me that, when the Watch Committee met on August 29, the plaintiff was no longer a member of the force, and the Watch Committee therefore could not ex post facto discharge him as from August 14. If they could discharge a police officer who had left the force for five days, they could equally discharge him if he had been out of the force for six months. I think they had no such power, and they were unable in law to decide that an ex-member of the force should be treated as discharged, because while he was still a member of the force, he was guilty of conduct that would have entitled the Watch Committee to discharge him.”

This is consistent with Re Joseph Auna. I consider that Re Joseph Auna is correctly decided. The only statement which may be questioned is where the court stated that “the entire thrust of the legislation is directed towards removing a person who is considered, after due inquiry, to be unworthy of continuing in office”. It would be more accurate to say that the main thrust of the legislation is directed towards this than to say that it was the entire thrust. It is apparent from provisions on penalties that apart from removing leaders from office, fines may be imposed to discipline leaders in office.

Counsel for the Public Prosecutor in his submission questioned the correctness of the decision Re Joseph Auna. The case was decided by a five-Member Bench in December 1980. With the exception of one Member of that Court, this Bench is made up of different judges. As a matter of practice, care should be taken when questioning the decisions of the Supreme Court in such a short time with different judges. If this is encouraged then the parties may be led to challenge the decisions of the Supreme Court before a bench composed of different judges in a short period of time. This could lead to a degree of some uncertainty of the principles of law pronounced by the Supreme Court. This is not desirable. However, where the principles of law pronounced by the Supreme Court are clearly wrong, they should be challenged as the opportunity arises, as the Supreme Court is not bound by its own decisions.

QUESTION 2

Both counsel did not make detailed submissions in relation to this question as they both agreed that a Member of Parliament ceases to be a leader on tendering his resignation to the Speaker. As a matter of construction of s 104(2)(c) of the Constitution, this would appear to be the correct view. This view is consistent with the decision of the Court of Appeal in England in Cooper v Wilson: see also Kilgour v Cummings [1941] NZGazLawRp 102; [1941] NZLR 972. It is apparent from these decisions that resignation becomes effective at the end of the required period of notice regardless of consent by the employer.

I would answer the questions as follows:

Question 1 — No;

Question 2 — Yes.

ANDREW J: I agree with the answers proposed by the Deputy Chief Justice and with his reasons.

I would add only the following on my own behalf, even though it is obvious, that the fact that the leader in this matter has effectively avoided the charges of breaches of the Organic Law on Duties and Responsibilities of Leadership by the tender of his resignation, is a highly unsatisfactory situation. Clearly the Organic Law requires urgent amendment to ensure that its aims and intentions are given full effect and so that any tribunal appointed be able to reach its conclusions in these matters of national importance without being thwarted by the resignation of the leader.

BREDMEYER J: By s 104(2)(c) of the Constitution the seat of a Member of Parliament becomes vacant if he resigns his seat by notice in writing to the Speaker. This provision, in effect, confers upon a Member a right to resign in that manner; his resignation does not have to be accepted by the Speaker or anyone else to become effective. Mr Kunangel was charged with various Leadership Code offences on 15 February 1982 and he was thereby automatically suspended from duty by the operation of s 28(1) of the Organic Law on Duties and Responsibilities of Leadership (hereinafter called the Organic Law).

Mr Roddenby, learned counsel for the Public Prosecutor, has argued that Mr Kunangel’s suspension from duty means that his right to resign from Parliament is also suspended pending the hearing and determination of the charges against him by the special tribunal chaired by Pratt J. In support of his contention, Mr Roddenby relies on two English authorities. One is a passage from Lord Sterndale MR in Wallwork v Fielding [1922] 2 KB 66 at 72 to the effect that when a contract of employment is suspended the obligations on both sides are suspended, the worker is suspended from duty and his pay is also suspended. The other is a passage from Scott LJ in Cooper v Wilson [1937] 2 KB 309 at 335, quoted by the Deputy Chief Justice above.

Under s 28(4) of the Constitution an Organic Law could have provided for suspension from office of a leader pending the investigation of charges against him. Instead, s 28(1) of the Organic Law on Duties and Responsibilities of Leadership provides for suspension from duty. Suspension from duty is I think narrower than suspension from office. Nevertheless I consider that suspension from duty is fairly wide. It would debar a leader not only from performing his duty or duties (see Constitution, Sch 1.8) but also from exercising certain powers and rights. For instance, I consider a Minister suspended from duty would be debarred from exercising any powers of appointment, to grant licences and permits and to authorise expenditure. I consider a suspended Minister would be debarred from drawing his salary were it not for s 28(2) of the Organic Law which expressly provides that he is to be suspended on full pay.

In the context of some statutory appointments I could readily agree with Mr Roddenby that suspension from duty implies a suspension of obligations on both sides and in particular a suspension of the right to resign. But in this context, in the case of a Member of Parliament and in the legislative framework of the Constitution and the Organic Law, it is not so. The right to resign from Parliament is given by s 104(2)(c) of the Constitution. To interpret s 28(1) of the Organic Law to mean that suspension from duty includes suspension of the right to resign is contradictory to s 104(2)(c) of the Constitution. The Constitution is a superior law to an Organic Law. By s 10 of the Constitution all written laws, which includes the Organic Laws, must be read subject to the Constitution. This is reinforced by s 12(1)(b) of the Constitution; an Organic Law cannot be inconsistent with the Constitution. These two provisions are unaffected by s 11 of the Constitution which is made expressly subject to s 10. Even if s 28 of the Organic Law were to provide expressly that when a Leadership Code charge against a Member of Parliament has been referred to a Tribunal, the Member is suspended from duty (or office) for all purposes including his right to resign from Parliament, that provision, being contained in an Organic Law and being inconsistent with the Constitutional provision, would be ultra vires and invalid.

I agree with the answers proposed by the Deputy Chief Justice.

KAPUTIN J: This is a Reference to the Supreme Court under s 18 of the Constitution of the Independent State of Papua New Guinea. The matter has been referred to the Court by a tribunal appointed under the provisions of the Organic Law on Duties and Responsibilities of Leadership which shall hereby be referred to simply as the Organic Law. The tribunal was established to hear and determine a reference from the Public Prosecutor on charges of 11 counts of breaches of the Leadership Code by the Honourable Opai Kunangel, MP, Minister for Commerce. The tribunal was appointed on 10 February 1982. By s 28 of the Organic Law, at the time of reference of charges to a tribunal the person alleged to have committed the misconduct in office is automatically suspended from duty. Reference to such a provision in an Organic Law is made at s 28(4) of the Constitution. Whilst under suspension following the application of s 28 of the Organic Law, he tendered his resignation as a Member of Parliament to the Speaker of the National Parliament on Monday, 1 March 1982, under s 104(2)(c) of the Constitution. The reference containing the charges was delivered to the Chairman of the tribunal on 15 February 1982. The hearing of the reference did not commence until 16 March 1982. However because of the matters that transpired during the proceedings, the tribunal decided to refer the following questions to the Supreme Court for its ruling. The terms of the reference are as follows:

(1)      Does the tribunal have jurisdiction to hear and determine a reference in respect of a Member of Parliament or Minister of State who, whilst under suspension following the application of s 28 of the Leadership Code, tenders his resignation to the Speaker of the National Parliament, under s 104(2)(c) of the Constitution?

(2)      Does such Member cease to be a Leader on tendering his resignation in writing to the Speaker under the said section, independently of the Speaker’s acceptance thereof?

This reference raises quite fundamental questions of interpretation of the Constitution and its relationship with an Organic Law. The underlying question, as I see it, is whether the Leadership Code encroaches upon the so-called “right to resign” by a Member of Parliament under s 104 of the Constitution. Towards this overall question there are subsidiary questions that have to be resolved. First, can s 28 of the Organic Law override the self-executing provision of s 104 of the Constitution? Then there is the question of what appears on the surface to be an inconsistency between the Constitution and the Organic Law in relation to the expressions “suspension from office” used in s 28 of the Constitution and “suspended from duty” expressed in s 28 of the Organic Law. The constructions of these aspects will resolve the main question whether or not the tribunal has jurisdiction to hear and determine the reference under the circumstances, which has been referred to this Court for its ruling. In my respectful view, the nature of this particular reference is such that, in judicial interpretation, an understanding of the teleology of the policy of the Leadership Code and the right of office-holders together with the aids to interpretation provided by the Constitution itself, should be able to put the reference in its proper and clear perspective, and according to the intention of the founding fathers of the Constitution.

JURISDICTION

It is my view that the tribunal assumed jurisdiction from the date it was established under s 27(7)(e) of the Organic Law. But it is the instrument of appointment that empowers the tribunal’s jurisdiction. It would seem to me that the appointment of the tribunal and the reference of charges has to be treated as contemporaneous. Let us look at the instrument of appointment. I quote the operative part only:

“I, Buri William Kidu, Chief Justice of Papua New Guinea, by virtue of the powers conferred by Section 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership and all other powers me enabling, hereby appoint the following persons to hear and determine allegations of misconduct in office by the Honourable Opai Kunangel, MP, Minister for Commerce.”

The magic words are emphasised. This particular tribunal was specifically set up to hear and determine allegations of misconduct in office by the Honourable Opai Kunangel. It is an ad hoc and independent one appointed to deal with the matter in question. And once it has completed its task, it will as a matter of law cease.

If the jurisdiction of the tribunal or any collateral issue in relation to jurisdiction is to be challenged, this would only be a procedural matter that could be taken up in the course of the proceedings. The fundamental point is that for a tribunal to be legally constituted it must assume jurisdiction from its inception, that is, the authority to inquire into and decide upon a particular matter which it is set up to investigate. It follows therefore that the starting point as to when the tribunal is conferred with jurisdiction is from the date of its establishment which is 10 February 1982, since it is the instrument of appointment that empowers it with such jurisdiction in the matter. And it is at this point also, by virtue of s 28 of the Organic Law, that Mr Kunangel is automatically suspended from office.

This must be the position since the matter would now be before an independent tribunal which would in the interests of all parties and the public be safeguarded by its independence. Take, for instance, situations like undue delay by the parties in getting the matter for hearing; or that there may not be any hearing of the matter at all, and the matter would then be in a state of uncertainty; in these circumstances the tribunal would be powerless if it did not have the jurisdiction to demand that the hearing take place soon, or to require explanation of any delay or as to why the hearing could not proceed at all. It must do this to avail itself of reasons upon which to make its report to Parliament about the outcome of the matter since it is ultimately answerable to Parliament about this matter.

INTER-RELATIONSHIP OF S 104 AND DIV III.2 ON THE LEADERSHIP CODE

Section 104(2)(c) of the Constitution states that the seat of a Member of the Parliament becomes vacant if he resigns his seat by notice in writing to the Speaker, or in the case of the Speaker, to the Clerk of the Parliament. On the surface it seems that there is nothing else that could affect this so-called “right” which is available to and at the disposal of a Member of Parliament. However, according to the construction in which this Constitution should be interpreted, it would appear that s 104(2)(c) is not to be read in isolation and exercised in a vacuum. It is my opinion that it is Div 2 of Pt III on the Leadership Code of the Constitution that affects the operation of s 104. It is the relationship of leadership, that is between the Leadership Code and the office-holder that by necessary implication brings s 104 into the totality of consideration when the question of misconduct in office arises.

Let us look at the construction upon which that view is arrived at. The Constitution says, under s 11, that this Constitution and the Organic Laws are the Supreme Law of Papua New Guinea and that their provisions are self-executing to the fullest extent that their respective natures and subject-matter permit:

“11.    Constitution, etc, as Supreme Law

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

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

12.     Organic Laws

(1)      For the purposes of this Constitution, an Organic Law is a law made by the Parliament that is:

(a)      for or in respect of a matter provision for which by way of an Organic Law is expressly authorised by this Constitution; and

(b)      not inconsistent with this Constitution; and

(c)      expressed to be an Organic Law.”

Section 8 (Principles of interpretation) states that for “the purpose of the interpretation of this Constitution and the Organic Laws, the provisions of Sch 1 (Rules for Shortening and Interpretation of the Constitutional Laws) apply and, subject to that Schedule, the underlying law applies”.

And s 24 of course provides certain materials as aids to interpretation. I quote:

“24.    Use of Certain Materials as Aids to Interpretation

(1)      The official records of debates and of votes and proceedings:

(a)      in the pre-Independence House of Assembly on the report of the Constitutional Planning Committee; and

(b)      in the Constituent Assembly on the draft of this Constitution, together with that report and any other documents or papers tabled for the purposes of or in connexion with those debates, may be used, so far as they are relevant, as aids to interpretation where any question relating to the interpretation or application of any provisions of a Constitutional Law arises.

(2)      An Act of the Parliament may make provision for the manner of proof of the records and documents referred to in Subsection (1).

(3)      In Subsection (1), `the report of the Constitutional Planning Committee’ means the Final Report of the pre-Independence Constitutional Planning Committee dated 13 August 1974 and presented to the pre-Independence House of Assembly on 16 August 1974.”

Under Sch 1.2(1) on meaning of certain expressions, — “Constitutional Law” means this Constitution, a law altering this Constitution or an Organic Law. Also under the Interpretation (Amendment) Act 1976, “Constitutional Law” means the Constitution, a law altering the Constitution or an Organic Law.

It would appear then, under s 11, that an Organic Law has the same authority as the Constitution itself in that they are both classified as Constitutional Law. And in Sch 1.3(3) it says each provision of a Constitutional Law takes effect as a Constitutional Law. True, under s 10 on construction of written laws — all written laws (other than this Constitution) shall be read and construed subject to — in any case — this Constitution. But an Organic Law properly made under s 12 is a Constitutional Law and must be read, although subject to, together with the Constitution when it is concerned with particular areas or matters, as is the case before us. It appears therefore that the provisions of the Organic Law and the Constitution must be read together to ascertain the operation and effect of the respective provisions concerned.

Then in Sch 1.5 it says quite clearly that:

“(1)    Each Constitutional Law is intended to be read as a whole.

(2)      All provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.”

As the Constitution is a Constitutional Law, it must then be read as a whole.

Returning to s 104(2)(c), when the Constitution is read as a whole it is found that Div III.2 on the Leadership Code affects the exercise of s 104(2)(c). The inter-relationship arises because as a Member of Parliament and as a Minister of State, Div III.2 applies to and in relation to him. As a matter of common understanding the inter-relationship need not necessarily be implied. It is there to be understood as such. It can be seen quite clearly that the reference to Div III.2 (Leadership Code) penetrates throughout the full breadth of the entire Constitution. And the whole Government has to be conducted subject to the Leadership Code. Even in the very provision of s 104 there is a reference to Div III.2 (Leadership Code). It states in s 104(2)(h) that the seat of a Member of Parliament becomes vacant if he is dismissed from office under Div III.2 (Leadership Code). Surely it cannot go without notice by any reasonable mind that s 104 has to be read subject to Div III.2, not only by necessary implication but even by direct reference. It is true that s 104 does not specifically say that it is to be applied subject to Div III.2 (Leadership Code). What is meant by “direction reference” is that this Division is referred to in the same provision itself in regard to one of the conditions in which a Member of Parliament will vacate his seat. That further confirms the inter-relationship between s 104 and Div III.2 (Leadership Code) and strengthens the argument further that the whole provision must be read subject to Div III.2. To support this, the interpretation continues further thus. In this case investigation of misconduct in office by Mr Kunangel was under way under Div III.2 (Leadership Code). Therefore he cannot yet exercise s 104(2)(c) because he is caught by the same provision under s 104(2)(h). And if such investigation had been completed and he were found guilty, then naturally s 104(2)(h) would have applied. However to pre-empt and therefore avoid this, if that were the intention, he took the course under s 104(2)(c). But on the construction taken in this case, such course is futile because it is caught by the Constitutional process which is under way under Div III.2 on the Leadership Code and its implementing Organic Law. What it comes down to is that s 104(2)(c) will not be open to be exercised under circumstances where the member is currently subject to investigation for misconduct in office under the Leadership Code. The Constitutional construction which has led to that conclusion will become clearer when I come to the end of the full reasoning as to how the Constitution and the Organic Law has to be interpreted.

There are a number of sections which come under Div III.2 (Leadership Code) of the Constitution. They are ss 26-31. Some of these sections or some aspects of them are self-executing. Section 28 of that Division is not self-executing and it is true that it cannot override the self-executing provisions of s 104. But s 28 clearly envisages and therefore empowers that the suspension from office of a leader, when the question of misconduct in office is referred to a tribunal, is to be provided by an Organic Law. That has been fulfilled by s 28 of the Organic Law. It just happens that this aspect was not incorporated in the Constitution itself. The main reason why it was omitted from the Constitution, is that it would be impossible to include everything in the Constitution; it would be too bulky. This makes sense. Section 28 of the Organic Law therefore merely facilitates Div III.2 of the Constitution, which Division as a whole relates to the exercise of s 104. As I have noted earlier, it is clear that under s 10 all written laws (other than this Constitution) shall be read and construed subject to — in any case — the Constitution. And that an Organic Law has to be read and construed subject to the Constitution. But it is only where there is a conflict on a related matter between a provision of the Constitution and that of the Organic Law, that the provision of the former must prevail. In my view there is no such conflict between s 28 of the Organic Law and s 104 of the Constitution. So we are not faced here with any question as to whether or not s 28 of the Organic Law should override s 104 of the Constitution. The two provisions are compatible in a sense that they both relate to one another in regard to the question of the Leadership Code, and Mr Kunangel who as a Member of Parliament is subject to it.

THE POWER OF SUSPENSION

I have taken the view that there is an inter-relationship between s 28 of the Organic Law and s 104 of the Constitution. The next question then is: does the provision of “suspension from duty” under s 28 also include, inter alia, the suspension of the so-called “right to resign” as a Member of Parliament under s 104? I think it includes it. The effect of suspension does not mean that his right has been abrogated or fettered in any way. It merely holds it inoperative for a time pending the tribunal’s investigation into the question of misconduct in office.

There are a number of meanings of the word “suspend” as defined in the Concise Oxford Dictionary, the most apposite being to “keep in undecided or inoperative state for a time, defer, temporarily annul, adjourn, debar temporarily from office of function or privilege or membership”.

Let us see how it is used and interpreted in a contract of employment situation. In Wallwork v Fielding [1922] 2 KB 66 at 71, Lord Sterndale MR interprets the word “suspend” thus:

“I should have thought that power to suspend the operation of a contract necessarily suspended its whole operation including not only the performance of duty but also the right to pay during the period of suspension.”

The Master of the Rolls continued (at 72):

“All these learned judges treat it, it seems to me, as indisputable that if there is a power of suspension which is exercised, the whole contract is suspended, the obligations on both sides are suspended. It seems to me that is the inevitable meaning of suspension, and if there be any power necessary, there was express statutory power here to suspend the man from duty and that involves the suspension of payment for the discharge of the duty. The contract is suspended with regard to its performance by both sides, not only by one; ...”

The above passages were quoted with approval in Cooper v Wilson [1937] 2 KB 309. Lord Scott states (at 335):

“In a borough police force the Watch Committee has complete discretion at any moment to suspend a constable; and in that event all his rights as a constable will be suspended — including his right to rely on his current notice of resignation: ...” [Emphasis added.]

In another case, Bird v British Celanese Ltd [1945] KB 336 at 341, Scott LJ described the effect of suspension thus:

“... the whole contract is suspended, in the sense that the operation of the mutual obligations of both parties is suspended; the workman ceases to be under any present duty to work, and the employer ceases to be under any consequential duty to pay. That is the natural meaning of the word `suspend’ when applied to a contract of employment, and I think it is also its legal meaning.”

In a contract of employment, however, the power of suspension must be expressed or implied in the provisions of the contract itself if it is to be exercised. In the instant case, the power of suspension is expressly provided by a Constitutional Law to be exercised pending investigation by the tribunal of the question of misconduct in office.

I refer to these cases merely to show what these authorities have interpreted the word “suspend” to mean and the legal effect of it. But whether the word is used in a contract of employment or in any other relationship like the present one, surely the only interpretation that can be applied is that which is commonly known in the English language. When the word “suspend” is used in the Constitution in relation to the phrase “suspension from office”, it must mean the suspension of all the duties and rights of the office, which would include the right to resign. That is the natural meaning of the word “suspend” when applied to a relationship such as the present one and I think it is also its legal meaning or the legal effect of it. The word has come to acquire that technical meaning through its common usage in legal parlance. In any case, that gives that word its fair and liberal interpretation. I know of no other interpretation that would give it that.

The only right that is preserved to a leader whilst under suspension is the continuation of his full pay. If it were the understanding that there would only be something less that will be affected by the power of suspension, then the right to full pay would not have been specifically preserved. The main reason why this was specifically preserved by the same provision is because of the common understanding that all the duties of the office and all the rights pertaining to it are to be suspended. Mr Kunangel’s right to resign therefore has been held inoperative for the time being by the effect of the power of suspension pending the outcome of the investigation. It follows that he cannot yet resign from office either as a Minister of State or as a Member of Parliament whilst on suspension. The tendering of resignation by Mr Kunangel would be of no effect and the tribunal therefore would continue to have jurisdiction.

Let us take the case of a Prime Minister for comparison purposes in relation to the need of the power of suspension.

Under the Constitution, s 142(6)(a):

“The Prime Minister may be suspended from office:

(a)      by the tribunal appointed under an Organic Law made for the purposes of Section 28 (further provisions), pending an investigation into a question of misconduct in office within the meaning of Division III.2 (leadership code), and any resultant action; or ...” [Emphasis added.]

However, under s 146 (Resignation):

“(1)    The Prime Minister may resign from office by notice in writing to the Head of State.

(2)      A Minister other than the Prime Minister may resign from office by notice in writing to the Prime Minister.”

And that s 104 is also available to the Prime Minister as a Member of Parliament.

The same question arises — Can he resign from office under the self-executing provision of s 146 or even under s 104 whilst on suspension when an investigation into a question of misconduct in office within the meaning of Div III.2 (Leadership Code) is being carried out?

Section 142(6)(a) states that the Prime Minister may be suspended from office by the tribunal to be appointed under an Organic Law made for the purposes of s 28 (further provisions) pending an investigation into a question of misconduct in office within the meaning of Div III.2 (Leadership Code), and any resultant action.

Here we have a self-executing provision of the Constitution itself which provides for “the power of suspension”. But for the tribunal to exercise it is the only matter left to be provided for by an Organic Law.

So here we have s 142(6), a self-executing provision that may come into conflict with other self-executing provisions of s 146 or s 104. What would be the effect of this?

If the view is correct that the meaning of the word “suspend” is a suspension of the performance of duties as well as the exercise of all rights pertaining to him as a leader, then his right to resign under s 146 and under s 104 (because as a Member of Parliament he is also subject to the Leadership Code), is suspended.

It must be because the operation of these sections is affected by another self-executing provision of the Constitution.

The point I am coming to is that in the case of a Prime Minister, once he is suspended from office he is to be barred temporarily from exercising his right to resign under s 146 or under s 104.

If that view is correct, then why shouldn’t the power of suspension also apply to an ordinary Minister of State as in the case of a Prime Minister? It is true that in the case of a Minister of State suspension is provided by an Organic Law if that construction is correct under its enabling provision of the Constitution. But the power of suspension is to be applied in the same circumstances, that is, pending an investigation into a question of misconduct in office within the meaning of Div III.2 (Leadership Code).

The point that the power of suspension in relation to an ordinary Minister or other leaders is provided by the Organic Law, matters not. The power of suspension is the same whether it is provided by the Organic Law or by the Constitution. It just happens that in relation to a Minister and other leaders the power of suspension is to be provided by the Organic Law. The fundamental point to be remembered is that the power of suspension from office was clearly intended to apply, whether in relation to the Prime Minister or to a Minister and other leaders coming within s 26, pending an investigation into a question of misconduct in office within the meaning of Div III.2 (Leadership Code).

A collateral question of course arises between s 28 of the Organic Law and its enabling Div III.2 (Leadership Code) of the Constitution in regard to the ambit of the power of suspension. Section 28(4) of Div III.2 of the Constitution employs the phrase. “suspension from office” whereas s 28 of the Organic Law contains the phrase “suspended from duty”. The variance that seems to arise relates to the use of the word “office” and “duty” respectively. It is contended by Mr K Kara that there is no such power of suspension from office provided by the Organic Law because its s 28 merely provides for a suspension from duty which is not in accordance with the Constitution. Mr Kunangel therefore could not have been under suspension from office when he tendered his resignation. So that there is no suspension existing that would bar temporarily the exercise of any right to resign.

The argument continues that even if the “power of suspension from duty” is correct and valid, it does not include the suspension of any right to resign because the term “duty” is narrower than the term “office”.

This would appear to be so. But how are these two terms defined by the Concise Oxford Dictionary (7th ed)? There are two related definitions of the word “office” which are relevant to our purpose:

1.       “Duty attaching to one’s position, task, function, (it is my office, the office of the arteries, to).”

2.       “Position with duties attached to it, place of authority of trust or service, esp of public kind (was given an office under the Government), tenure of official position esp that of minister of State (take, enter upon, hold leave, resign, office;).”

The meaning of the word “duty” as appropriate here is defined thus: “Business, office, function, performance of or engagement in these.”

On their respective definitions the term “office” appears to mean the same thing as the word “duty” in one sense. In that sense the two terms could be used interchangeably. When the expression “suspension from office” is used it means that during the suspension the person is prohibited from performing the duties of the office which he holds. Take for instance the expression “to resign office”. To resign an office means, inter alia, to cease to perform the duties of the office after notice of intention to do so with the object and result of permanently terminating the holding of it: see Kilgour v Cummings [1941] NZGazLawRp 102; [1941] NZLR 972 at 979. When the expression “suspended from duty” is employed it appears to mean the same thing, which is, that during the suspension the person is prohibited from performing the duties of the position or office which he occupies.

In effect, in both cases the office-holder is temporarily removed from office and an acting appointment is made to hold the office or to carry out the duties of that office, so to say, in the meantime.

So, in effect, there is no difference in meaning between the two phrases if they are to be understood in the same sense. Of course it would seem though that the term “office” is quite broad when it is to be understood in the wider sense. However, I think that the draftsmen may have deliberately chosen the term “suspended from duty” as appeared in the Organic Law. And it is my respectful opinion that it was meant to be applied alternatively with the phrase “suspension from office”. For instance, when one speaks in relation to a public servant who comes within s 26, it would be more appropriately referred to as being “suspended from duty” whereas in relation to a Minister of State the common usage would be a “suspension from office”. Mr Kunangel therefore has been rightly “suspended from office” under the Organic Law. And there is no such inconsistency between the Organic Law and the Constitution that would have been occasioned by the impression that the meaning of the two words are fundamentally different. I consider this interpretation gives the two terms and the phrases their fair and liberal meaning which the Constitution itself requires that that is how it should be approached. Any other view that anyone may harbour in relation to their meanings would be obnoxious to common usage and common sense.

THE RELEVANCE OF S 31

The construction correctly leads to another related provision of the Constitution itself which provides for further penalty-control mechanism to enhance the policy of the Leadership Code. Section 31 of Div III.2 states:

“(1)    A person who has been dismissed from office under this Division for misconduct in office is not eligible:

(a)      to election to any elective public office; or

(b)      for appointment as Head of State or as a nominated member of the Parliament; or

(c)      for appointment to a provincial government body or to a local government body,

for a period of three years after the date of his dismissal.

(2)      In the event of doubt as to whether an office or position is an office or position to which Subsection (1)(a), (b) or (c) applies, the decision of the Ombudsman Commission is final.”

This provision is of great significance and that is why it was seen fit to be made self-executing. The interpretation I have taken naturally leads to this most important provision at which no other constructions would have arrived. This in itself further strengthens the construction as fundamentally sound. It follows therefore that once a leader has been charged before a tribunal as in the present case, the Constitutional process must take its course to the end. The corollaries of this are that once the leader is under suspension he cannot on his own accord resign because to do so would defeat the course of justice. He must face the tribunal until it has completed its investigation because if the charges are found to be true and he is dismissed, then naturally the tribunal would further impose the provisions of s 31. This must be taken into account since it is part of the entire thrust of the policy underlying the Leadership Code. If dismissal from office is the only matter encompassing the entire thrust, then the situation would have been different. But upon the construction which has led itself to this conclusion, a resignation tendered to the Speaker of the National Parliament by a Member of Parliament or Minister of State who is under suspension, will be of no effect. The tribunal therefore continues to have jurisdiction to proceed with the matter. On the conclusion to which I have come, it will be unnecessary for me to decide upon the second question.

The interpretation has led to the conclusion according to the design itself that the architects of the Constitution have laid, with the obvious intention of preventing any loophole. Mr Kunangel’s purported action would certainly stand out as a loophole that no-one would have thought to exist. In this case, of course, Mr Kunangel nominated to contest the incoming national elections after purporting to resign under s 104(2)(c). However, if the tribunal had continued and if he were to be found guilty and consequently dismissed, then as a matter of course s 31 would have applied.

I do appreciate the interpretation of the Constitution that leads to the contrary view, however, with due respect, I do not agree with it. In my view, it is not the correct interpretation.

In judicial interpretation of the Constitution, I bear in mind the fundamental point that the court’s proper function is to interpret, not to amend, the words of the Constitution. The court is confined throughout to the words of the Constitution. It cannot change the words, it must accept the words and interpret them as they are. However, in this case, as far as I am concerned, the relevant constitutional law provisions that we are dealing with are adequate, clear and compatible and the words used are sufficiently clear. And upon correct interpretation, it should lead to the inevitable conclusion I have reached. It is not only sound but it also achieves its overall purpose which is to give effect to the entire thrust of the policy behind the Leadership Code, and the spirit of the Constitution.

I do realise the inescapable situation that, where there is lack of constitutional provisions in regard to a matter, we must accept whatever capricious and absurd result constitutional interpretation may lead us to. But that is not the case before us. However, if one takes the contrary view in this Reference, then of course we must face the anomalous situation that such would render us. But as I have concluded, this situation should not exist.

The answer to the first question then would be,

“Yes”.

GAJEWICZ J: A Tribunal appointed by the Chief Justice under s 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership (the Organic Law) to hear and determine an allegation of misconduct in office by the Honourable Opai Kunangel, MP, Minister for Commerce, referred two questions to the Supreme Court relating to the interpretation or application of provisions of a constitutional law. The questions are:

“(1)    Does the Tribunal have jurisdiction to hear and determine a reference in respect of a Member of Parliament or Minister of State who, whilst under suspension following the application of s 28 of the Leadership Code, tenders his resignation to the Speaker of the National Parliament, under s 104(2)(c) of the Constitution?

(2)      Does such Member cease to be a Leader on tendering his resignation in writing to the Speaker under the sara [sic] section, independently of the Speaker’s acceptance thereof?”

At the hearing, Mr Roddenby, the counsel appearing for the Public Prosecutor, made an application to add a further question. As this point is dealt with by the Deputy Chief Justice and as I, with respect, agree, for reasons stated by him, that the application should be rejected, there is no need to set out the question.

From the Reference Book submitted with the questions it appears that the questions arose out of the following set of circumstances.

Mr Opai Kunangel Amin was a Member of the National Parliament and a Minister. The Ombudsman Commission carried out investigation of alleged or suspected misconduct in his office.

On a date, which I was unable to discover, the Ombudsman Commission, acting pursuant to s 29 of the Constitution and s 27(1) of the Organic Law on Duties and Responsibilities of Leadership (the Organic Law), presented its statement of reasons for its opinion that there was a prima facie case that Mr Kunangel had been guilty of misconduct in office.

The document consist of 15½ pages and ends with a “Conclusion” which reads:

“The Ombudsman Commission believes that Opai Kunangel Amin MP, has by the above misconduct brought discredit to the Government of Papua New Guinea. He has committed the most serious form of corruption — the abuse of official power for personal gain. He is, in our opinion, a person unfit to hold public office”.

On 10 February 1982, the Chief Justice, by virtue of the powers conferred on him by s 27(7)(e) of the Organic Law, appointed three persons, all of whom have the appropriate pre-requisite qualifications, “to hear and determine allegation of misconduct in office by the Honourable Opai Kunangel MP, Minister for Commerce.

Mr Roddenby, the Acting Public Prosecutor, considered the matter and, on 15 February 1982, he referred it to the “Leadership Tribunal”. In his affidavit he says that he delivered the reference to the Chairman of the tribunal.

On 1 March 1982, the then Honourable Opai Kunangel Amin handed to the Speaker of the National Parliament a resignation notice. The copy of the notice which is in the reference book is not dated, but from Mr Kunangel’s affidavit it appears that the notice was dated 17 February. A copy of the notice has, apparently, been forwarded to the Prime Minister.

It appears that, on 16 March 1982, the tribunal commenced to “investigate” the case “of alleged or suspected misconduct in office referred to them in accordance with the Organic Law”, to use the terms of s 28(1)(g)(i) of the Constitution, or, to use the terms of s 27(4) of the Organic Law, to “make due inquiry into the matter referred to it”.

Mr Kibi Kara, who appeared for Mr Kunangel before the tribunal raised a preliminary matter going to the tribunal’s jurisdiction, namely that as Mr Kunangel has resigned and was therefore no longer “a Leader”, the tribunal no longer had jurisdiction to hear the matter. Mr Kara further submitted that even if the tribunal were satisfied that misconduct in office had occurred the tribunal could not make the recommendation for Mr Kunangel’s dismissal as he was no longer in any position from which he could have been dismissed. Mr Kara relied on the case of SCR No 5 of 1980, Re Joseph Auna [1980] PNGLR 500.

I interpolate to mention that s 28(1)(g) enacts that the Organic Law: “shall establish independent tribunals that shall investigate and determine any cases of alleged or suspected misconduct in office ... and are required, subject to sub-s (1a), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; ...” Subsection (1a) deals with cases where there was no serious culpability on the part of a person found guilty of misconduct in office. In view of the “Conclusion” by the Ombudsman Commission to which I referred earlier sub-s (1a) is obviously not relevant to the present case and the only action which the tribunal could take, having found Mr Kunangel guilty of misconduct in office, is to recommend that he be dismissed from his office or position.

Mr Roddenby, who appeared before the tribunal, argued that because the matter was referred to the tribunal under s 27 of the Organic Law, Mr Kunangel was suspended from duty by virtue of s 28 of the Organic Law and that a person under suspension is unable to resign.

He relied for that proposition on Wallwork v Fielding [1922] 2 KB 66 and on Cooper v Wilson [1937] 2 KB 309. He conceded, however, that if s 28 of the Constitution is not self-executing then s 104 of the Constitution may override the Organic Law.

The provision relating to Members of the Parliament is s 104(2)(c) of the Constitution which reads as follows: “The seat of a Member of the Parliament becomes vacant ... if he resigns his seat by notice in writing to the Speaker ...”

The provision relating to Ministers is s 146(2) of the Constitution which reads: “A Minister other than the Prime Minister may resign from office by notice in writing to the Prime Minister.”

There is nothing in the Constitution, or for that matter elsewhere, to indicate that the notices of resignation must be accepted, or may be rejected before the resignations become effective. Section 106 of the Constitution provides for filling vacancies in the offices of elected Members of the Parliament which become vacant otherwise than by virtue of s 104(2)(b) (normal term of office). The only other reference to a Member of the Parliament ceasing to be a Member is in Order 26(c) of the Standing Orders of the National Parliament which reads: “A Member’s Roll shall be kept by the Clerk, showing ... The cause of his ceasing to be a Member.”

It would, therefore, follow that the resignation of a Member of Parliament becomes effective and his seat becomes vacant when the notice of resignation in writing is given to the Speaker of the Parliament. Appropriate steps then shall be taken to fill the vacancy pursuant to s 106 of the Constitution.

Section 147(1)(b) of the Constitution reads: Unless he earlier subject to subs (2), resigns ... a Minister ... hold office until the next appointment of a Prime Minister.

Subsection (2) of s 147 relates to a Prime Minister who resigns and a Ministry that resigns collectively and is not relevant to the present case.

Again, as in the case of a Member of the Parliament, there are no other provisions which restrict, amplify, qualify, clarify, or in any way touch upon, or attach any conditions whatever to giving the notice of resignation. The person concerned has an unfettered and unconditional freedom of choice to resign both offices. The only requirement provided by the Constitution is that the notice of resignation must be in writing and that it must be given to the Speaker in the case of a Member of Parliament and to the Prime Minister in the case of a Minister. When this is done he ceases to be a Member of the Parliament, or ceases to hold the office of a Minister, as the case may be.

Although the question referred by the tribunal does not include reference to the office of a Minister, I referred to provisions relevant to resignation of a Minister because Mr Kunangel was a Minister and because of the similarities in the requirements set out in the Constitution relating to resignations.

In my view, the second question should be answered “Yes”.

The first question is more difficult to answer and I am afraid I must refer to the provisions of the Constitution which I consider to be relevant.

There is no doubt that a Member of the Parliament holds an office. Section 104(1) of the Constitution reads:

“An elected Member of the Parliament takes office on the day immediately following the day fixed for the return of the wit for the election in his electorate ...”

Section 27 of the Constitution spells out the duties attached to the office. Section 27(4) empowers the Ombudsman Commission (or other prescribed authority) to give directions to ensure the attainment of the objects of that section.

Section 28(4) of the Constitution reads:

“An Organic Law may provide for the suspension from office of a person to whom this Division [ie Division 2 of Part III] applies pending the investigation of any case of alleged or suspected misconduct in office by him."

Section 28(1)(f) of the Constitution reads:

“(1)    For the purposes of this Division, [ie Division 2 of Part III] an Organic Law:

...

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

Section 28(1)(g) of the Constitution reads:

“(1)    For the purposes of this Division, [ie Division 2 of Part III], an Organic Law:

...

(g)      shall establish independent tribunals that:

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

(ii)      are required to recommend to the appropriate authority to dismiss from any office or position or, within limits fixed by law, otherwise make a recommendation to penalize a person found guilty of misconduct in office, unless they find both a lack of serious culpability and that public policy and the public good does not require dismissal.”

Section 28(1)(h) of the Constitution reads:

“(1)    For the purposes of this Division, [ie Division 2 of Part III], an Organic Law:

...

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

Section 28(5)(b) of the Constitution reads:

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

(a)      no such proceedings provided for by law are a bar to proceedings under that paragraph [ie par (c) of sub-s (1) which I set out above].”

Section 29 of the Constitution provides for referral by the Ombudsman Commission of matters to the Public Prosecutor for prosecution before the tribunal established under s 28(1)(g).

Section 31(1) of the Constitution reads:

“(1)    A person who has been dismissed from office under this Division, [ie Division 2 of Part III] for misconduct in office is not eligible:

(a)      to election to any elective public office;

(b)      for appointment as Head of State or as a nominated Member of the Parliament; or

(c)      for appointment to a provincial legislature or provincial executive (including the office of a provincial executive), or to a local government body,

for a period of three years after the date of his dismissal.”

I did not quote in extenso s 28 of the Constitution which sets out the purposes for which the Organic Law may make provisions because the passages I quoted are sufficient to show how carefully the language is used to prescribe precisely and in detail the aims and purposes of the Organic Law and the functions, jurisdiction and powers of the Ombudsman Commission and of the independent tribunal as well as the consequences flowing from the finding that there was a misconduct in office.

The function of the independent tribunal is to investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law and the only sanction opened to the tribunal is to recommend to the appropriate authority to dismiss from any office a person found guilty of misconduct in office. The only consequence of such dismissal relevant to the present case is that the person who has been dismissed is not eligible to election to any elective public office for a period of three years after the date of the dismissal. No matter how serious the misconduct might be, defalcations might amount to millions of kina and yet the only consequence is the dismissal from the office and three years disqualification for election to any elective public office or for appointment to specified offices. The proceedings before the independent tribunal are not judicial proceedings and therefore, although they are subject to the principles of natural justice, the strict evidentiary rules relating to criminal law do not apply. No proceedings before the independent tribunal are a bar to any other proceedings provided by law, but even a limited experience with white-collar crime cases is sufficient to demonstrate that the existing evidentiary and procedural provisions are inadequate, antiquated and hopelessly out of touch with reality. The result being that charges of that nature, investigations which sometimes take years to complete, are very frequently thrown out of court on technical grounds. I sympathise completely with Mr Roddenby’s cri de coeur when he said that unscrupulous elected leaders may take advantage of the provisions enabling them to resign and thus escape the threat of their alleged misconduct in the office being investigated by the independent tribunals. However, I must apply the law as I find it to be and not as I think it ought to be.

Section 103 of the Constitution helps in divining the “intention" of the legislature as far as the first question is concerned, if such psychological oddity as “intention” can properly be ascribed to the rather hybrid document as the Constitution.

The section deals with qualifications for and disqualifications from membership of the Parliament. As in s 28, the language used in s 103 is unambiguous and precise.

Section 103(3)(c):

“(3)    A person is not qualified to be, or to remain, a member of Parliament if:

...

(c)      subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or ...”

Subsections (4)-(7) are too lengthy to be quoted, but, again, they contain clear and detailed provisions which indicate the high degree of skill, care and keen legal awareness which went into the formulation of the provision of the Constitution.

The Constitution creates a special class of persons, the Leaders of people of the Independent State of Papua New Guinea. It defines who those Leaders are and divides them into certain categories. It enacts standards of behaviour for the Leaders. It also enacts that according to the category in which the Leaders are placed, different measures be taken and different ultimate consequences should flow from deviations from the standard of behaviour.

Mr Roddenby submitted that in the Leadership Code, that is, Div 2 of Pt III of the Constitution, there is no difference between elected Members of the Parliament and other Leaders. He further submitted that the procedure prescribed for investigation of alleged misconduct in office is akin to, if not identical with the procedure applicable to criminal law relating to indictable offences: once the appropriate steps are taken and a certain stage is reached the machinery set in motion takes over and cannot be stopped by a unilateral declaration by the person concerned that he no longer is a Leader.

In his very carefully prepared argument Mr Roddenby demonstrated, at least to my satisfaction, that in the present case all procedural steps had been duly completed, the machinery had been set in motion and the independent tribunal, properly constituted, had commenced investigating the alleged misconduct.

I am also satisfied that Mr Kunangel, when, as he said in his affidavit, he handed to the Speaker his resignation notice, was suspended from duty.

Mr Roddenby submitted that the answer to the first question should be “Yes”. In support of this submission he relied on the same two cases on which he had relied when he appeared before the Tribunal, namely Wallwork v Fielding and Cooper v Wilson.

I do not agree with Mr Roddenby’s contentions that these cases stand for the propositions that:

(a)      a person under suspension cannot validly tender a resignation from his office or employment; and

(b)      that the cases cited are applicable to the present case, that is, to an elected member of the Parliament.

Wallwork can be accepted as an authority for the proposition that under the then existing legislation relating to a local police force, which does not provide for suspension of a police officer, does not take away (by an implied repeal) the power from the relevant local authority, existing under an earlier legislation, to suspend the officer. When such power of suspension is exercised, the right of the officer to receive pay ceases during the suspension. The case turns on the interpretation of the then existing legislation and analogy is drawn to the contractual relationship of an employer and his employee.

Cooper deals with the validity of a dismissal of an officer of a local police force who, following the relevant legislative provision, tendered his resignation which was accepted. Before the acceptance of the resignation was communicated to the officer certain complaints were made against him. The acceptance of the resignation was retracted and after an inquiry into the complaints the officer was dismissed. The Court of Appeal held that the retraction of the acceptance of the resignation was invalid, that the officer had therefore resigned, that the inquiry was invalid and that the officer’s dismissal was also invalid.

The relevant statutory provisions provided that a police officer was authorised to resign his office by giving one month’s notice. It is not clear whether the notice required an acceptance before the resignation became effective. It appears that that was so, because after the notice had been given the officer was interviewed by his superiors about the reasons for resignation and endorsement was made on the margin of the notice to the effect that the resignation was accepted. This point was raised in argument but, according to Scott LJ, it “was not much pressed”.

Relying on the decision in Wallwork, Scott LJ found, inter alia, that the resultant statutory position was that the officer could have been suspended, in which case his right to rely on his notice of resignation would equally have been suspended.

I agree with the Deputy Chief Justice’s view for the reasons expressed by him that the opinion of Scott LJ on that point is a mere obiter dictum. That opinion, has, of course, great persuasive weight, but for reasons expressed by the Deputy Chief Justice, it cannot be accepted as an authority for the proposition that an elected Member of Parliament of the Independent State of Papua New Guinea, whilst being suspended from duty under the provisions of the Organic Law, cannot under s 104(2)(c) of the Constitution resign his seat.

Like the Deputy Chief Justice I was unable to find any authority directly apposite to the first question referred by the tribunal. I do not think that in attempting to find a solution to a problem for which no precedent can be found one must necessarily look for a pigeon-hole supposedly existing within the present legal framework and, having found one which is approximately of the right shape and size, squeeze the problem into it. If the problem arises out of new legislation, one examines the legislation and if it is necessary, makes a new pigeon-hole. This approach may, perhaps, be even more valid where the new legislation is expressed to be a “Leadership Code” in which case recourse can be made to the previous authorities in cases in which the construction of the statute is doubtful or in order to settle a dispute about the state of the previous law: see Bank of England v Vagliano Bros [1891] UKLawRpAC 6; [1891] AC 107. The problem of defining the legal position of an elected member of the Parliament of the free, independent and sovereign Nation seems to be such a problem.

However, although my initial legal education was European, my subsequent teachers, training and experience imbued me with profound respect for the wisdom of great lawyers and judges whose sagacity in expounding the law has been demonstrated countless times through centuries of legal history. I may be one of those “timorous souls”, but I content myself with following their way of grappling with problems. So, my search for the appropriate pigeon-hole and the precedents continues.

In Marks v Commonwealth [1964] HCA 45; (1964) 111 CLR 549, Kitto J said (at 557):

“The doctrine of the common law is that the Sovereign may compel her subjects to serve in such offices as the public good and the nature of the constitution require, and that refusal to perform a public duty, when legally called upon to do so, is a punishable offence ... I have found no reason to suppose that this is not still the law, though what the nature of the constitution requires and what duties a subject may be legally called upon to perform are not necessarily the same today as they were in earlier times.”

In Dunn v The Queen [1886] 1 QB 116, it was held that servants of the Crown, civil and military, except in special cases where it is otherwise provided by law, hold their offices only during the pleasure of the Crown. That case concerned a claim for damages by a Consul-General for the Niger Protectorate who was appointed for “a period of three years certain”, but was dismissed before the expiration of that period. This claim was rejected.

In Hunkin v Siebert [1934] HCA 43; (1934) 51 CLR 538, it was held that where there is implied in the terms of employment of an officer of the Crown (a clerk in the South Australian department of Public Service) a term that he may be dismissed at the pleasure of the Crown, there is implied also a concomitant power to suspend the officer from service until the pleasure of the Crown be known, but if the officer “is so suspended he is nevertheless entitled to his salary”.

In the older days officers in the army and in the navy could effectively resign from service by selling their commissions with the consent of the Crown. In Morris v M’Cullock [1763] EngR 68; (1763) AMB 432 at 435; [1763] EngR 68; 27 ER 289 at 290, it is said:

“It is not an uncommon thing to sell commission in the army; but then it is done with the leave of the Crown as a method to reward merit with economy ...”

In the cases of Parker v Lord Clive [1769] EngR 48; (1769) 4 Burr 2419 and Vertue v Lord Clive [1769] EngR 70; (1769) 4 Burr 2472 at 2472; [1769] EngR 70; 98 ER 296 at 296 it was held that:

“a military officer in the service of the East India Company has a right to resign his commission at all times and under any circumstances, whenever he pleases.”

By virtue of a combined effect of various Acts passed by the British Parliament military service in the East India Company was then deemed to be the service in the Sovereign’s army or navy.

In Marks, Taylor J said (at 558):

“At least, since the decisions in R v Cuming; Ex parte Hall [1887] UKLawRpKQB 55; (1887) 19 QBD 13 and Hearson v Churchill [1892] UKLawRpKQB 125; [1892] 2 QB 144, there has been, as far as I can see, universal acceptance of the proposition that an officer in the regular Army has no absolute right to resign his commission and, thereby, terminate his service under the Crown...”

However, tempora mutantur, and the inevitable legislative enactments changed the situation. By virtue of statutes, servants of the Crown can validly terminate their services. How and under what circumstances this can be done depends entirely on the statutory provisions. The case of Marks v Commonwealth is an example of how carefully the court will scrutinise the wording of a statute. Marks who was a commissioned officer of the Australian military forces tendered a three months’ notice of resignation. The resignation was not accepted and by a writ issued out of the High Court he claimed that his resignation should have been accepted. The relevant part of s 17 of the Defence Act 1903 (Cth) reads as follows: “... an officer may by writing under his hand tender the resignation of his commission at any time by giving three months’ notice.”

Menzies J referred to the text of the section and said (at 561):

“It is to be observed that the section refers to tendering a resignation, not resigning, but the argument is that an officer who tenders his resignation thereby resigns. To accept this argument would be to depart from the plain meaning of the words used. A person who tenders his resignation does not resign; he offers to resign. It would be sufficient to say that upon a survey of the relevant legislation I have found no reason for departing from the first principle of statutory construction, viz, that plain words should be given their plain meaning. It is possible, however, to go further and state that on the contrary the survey has shown good reason for adhering to that principle in this case.”

When considering the effect of the same section he said (at 598):

“Having regard to the background of the common law on the subject and comparing the language used in s 17 with that used in s 34 and s 13 of the Naval Defence Act 1910 (Cth), I am of opinion that the tender by the plaintiff of his resignation did not operate to terminate his services nor was the Governor-General bound to accept it. Section 17 does not more, in my opinion, than lay down, as a matter of administrative policy, the length of notice that is to be given by an officer of his desire to resign his commission.”

All authorities to which I referred deal either with contractual relationship between master and servant, or with a servant of the Crown, civil or military and the Crown, and the Crown prerogative.

Concerning the question of prerogative, I think the position can be correctly summarised as follows.

When Her Majesty the Queen graciously consented to become the Queen and Head of State of Papua New Guinea she also consented to the principles and rules relating to the Royal Prerogative subject to certain exceptions. One of such exceptions is that when they are inconsistent with a constitutional law or a statute, the latter shall prevail: Constitution, Sch 2.2(2).

Section 104(2)(c) of the Constitution enables a Member of the Parliament to resign his seat. He does not “tender the resignation” he “resigns his seat”. Even, assuming that a Member of Parliament were a servant of the Crown, and I think that he is not, the prerogative of the Crown could not be invoked to prevent him from vacating the seat.

Section 146(2) of the Constitution enables a Minister to resign from his office. A Minister is a servant of the Crown. In Great Britain a Minister holds his office at the pleasure of the Crown and is dismissible without cause assigned (8 Halsbury’s Laws of England (4th ed), p 1121).

Under the Constitution, a Minister, other than the Prime Minister, is appointed by the Head of State acting with or in accordance with the advice of the Prime Minister. Section 141(a) of the Constitution enacts that “... a Minister who ceases to be a Member of the Parliament ceases to hold office as a Minister”. It would therefore follow that when Mr Kunangel handed his resignation notice to the Speaker he ceased to hold his office as a Minister. Again, the provisions of the Constitution prevail over the prerogative of the Crown.

The cases of Wallwork and of Cooper cited by Mr Roddenby in his argument that a person under suspension cannot resign from his employment are cases concerned with contractual relationship between a master and his servant. Contracts of employment are of course subject to the rules of common law as well as to statutory provisions regulating conditions of employment. Contracts of employment need not be in writing and the conditions are very often not spelled out but implied.

Can it be said that when an elected member takes office he enters into a contract of employment? I think that it is untenable to argue that his contract is with the people who voted for him. Such contract would be unenforceable. The voters could not sue an elected member of Parliament for a breach of contract if he acts contrary to the promises he made during his election campaign. I accept that the law on this point is correctly stated in G C Cheshire and C H S Fifoot, The Law of Contract (4th Aust ed, 1981), p 78 in the following passage, a person “who by his official status or through the operation of the law is under a public duty to act in a certain way, is not regarded as furnishing consideration merely by promising to discharge that duty”.

Without consideration there can be no contract. There could be no contract with all the people from his electorate because those who did not vote for him are no party to the contract.

If there is no contract with the people can it be said that an elected member of Parliament enters into a contract of service with the Crown when he takes office pursuant to s 104(1) of the Constitution? I doubt it very much. With the greatest respect to those who think otherwise, it seems to me that a better view is that unless there are statutory enactments to the contrary the relationship between the Crown and its servants is not one of contract at all, but of status. It may be argued that status is a relic of the past. But a husband still has, in many jurisdictions, a proprietary interest in his wife which gives rise for action for loss of consortium. In Inland Revenue Commissioner v Hambrook [1956] 2 QB 641, it was held that Crown’s action per quod servitium amisit lay now only where there was a master and servant relationship in which the status of the servant is that of a personal servant. It was held that a taxation officer was not employed by the Crown, but appointed. There was no contract of service and no relation of master and servant as between the Crown and the taxation officer. He could only receive remuneration and privileges at the discretion of the Crown. Lord Goddard, Lord Chief Justice of England, said (at 653):

“... but it is curious that there does not appear to be a definite and clear decision as to whether there is a contract of service between the Crown and its officers in the Civil Service.”

Earlier in the same page he said, when comparing the grades or positions occupied by civil servants: “... the same rules of law in this respect apply in relation to the armed forces, to a Field Marshal as to a private soldier.” Lord Goddard said (at 654):

“... an established civil servant is appointed to an office and is a public officer, remunerated by moneys provided by Parliament, so that his employment depends not on a contract with the Crown but on appointment by the Crown ...”

It must be remembered that in Wallwork and Cooper the police officers were not servants of the Crown, but of the local police authorities. I must reject Mr Roddenby’s submission that these cases are authorities that an elected member of the Parliament cannot resign his seat whilst being suspended under the Organic Law.

In my view, the answer to the first question by the Tribunal must be based on the interpretation of the Constitution and of the Organic Law. I agree with the Deputy Chief Justice and Bredmeyer J that the Constitution is superior law and that the Organic Law must be read subject to the Constitution. I agree with Bredmeyer J that suspension from duty is narrower than suspension from office, but having considered this point I decided that in the present case it is unnecessary to analyse the differences.

In the Walerford Borough case (1870) 2 O’M&H 24 at 25, Hughes B, when referring to an elected office of town councillor said: “It is an office of honour and dignity, and the natural and fair object of the reasonable ambition of many electors.” In Edwards (Inspector of Taxes) v Clinch [1980] 3 WLR 521 at 525; [1980] 3 All ER 278 at 280, Buckley LJ said:

“The word `office’ has a wide variety of meanings in our language and is certainly not a term of art in our law. It is not, in my view, a term which is free from ambiguity.”

In Canadian Pacific Tobacco Co Ltd v Stapleton [1952] HCA 32; (1952) 86 CLR 1, Dixon CJ, when confirming the word “duty” under the Income Tax Assessment Act 1936 (Cth), said (at 6):

“The word ‘duty’ there is not, I think, used in a sense that is confined to a legal obligation, but really would be better represented by the word ‘function’.”

It seems to me that s 28 of the Organic Law which speaks of suspension from duty was enacted not under s 28(4) of the Constitution which makes specific reference to suspension from office, but under s 28(1)(h) which enables the Organic Law to make “provision that is necessary or convenient for attaining the objects of” the Leadership Code; otherwise s 28 of the Organic Law would be outside the scope of power conferred and, therefore, ultra vires the Constitution.

Earlier, I cited long extracts from the Constitution to demonstrate the care and skill used in expressing the purport or intention for incorporating in the Constitution provisions relating to leadership.

Theft and fraud are not new phenomena. It has long been recognised that criminal law cannot deal adequately with those crimes. The numerous legislative changes of the law relating to theft and cognate offences in England and elsewhere are the best examples of that recognition. One cannot assume that at the time when the Constitution was enacted the deficiencies in the criminal law were not known. Had the Constitution intended that infringements against the Leadership Code committed by a leader whilst he was in office could be investigated after he ceased to hold the office, that intention would have been expressed by making appropriate provisions to that effect. No such provisions are contained in the Constitution.

My conclusion that the Constitution did not so intend is fortified by action and inaction following the Supreme Court decisions in The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491 and Joseph Auna.

Sasakila’s case was concerned with a minor breach of the Leadership Code. The Supreme Court found that there was an hiatus in the Constitution which could result in a possible hardship being caused to a “leader”. As a result of that decision action was taken and the Constitution was amended by inserting subs 1(A) in s 28.

In Auna, the Supreme Court decided that the tribunal does not have jurisdiction to hear and determine a Reference when the holder of an office under s 26(1) of the Constitution is no longer occupying the office. The Court also decided that the tribunal has jurisdiction to hear and determine the reference if the holder of the office ceased to hold that office but holds another office at the date of the judgment by the tribunal. It follows that a leader may resign his office some time towards the end of the proceedings before the tribunal in anticipation of an unfavourable judgment. When he resigns one day before the judgment the tribunal ceases to have jurisdiction and is unable to pronounce its decision. Some may think that this is a most undesirable situation. All investigations done by the Ombudsman Commission and the tribunal become useless. Some may think that it is a farcical situation, it makes mockery of the whole Leadership Code. But this is the plain effect of the decision in Auna’s case. No action was taken to amend the Constitution after that case.

I agree with the Deputy Chief Justice that the decision in Auna’s case should not be disturbed. That was a unanimous decision of the five distinguished and experienced judges who followed the same approach of strict construction adopted in 1976 by the judges in Sasakila. There ought to be consistency and certainty, the law should not be measured by the proverbial length of the Lord Chancellor’s foot. If there are, and I repeat, if there are deficiencies or lacunae in the Leadership Code which need corrections, this task ought to be left to the first principal arm of the National Government.

In my opinion there is one additional ground why the first question should be answered in the negative. If, contrary to my view, there were in the present case come uncertainty as to the interpretation of the Constitution, then, because of fairness to the person concerned, the uncertainty should be resolved in his favour. The proceedings before the Ombudsman Commission and the tribunal are not criminal proceedings, but they entail penalty and any doubt arising from interpretation of legal provisions should be given to the person who may suffer the penalty.

In my view the answers to the questions should be as follows:

Question 1 — No;

Question 2 — Yes.

Questions answered:

Question 1 — No.

Question 2 — Yes.

Solicitor for the Ombudsman Commission (for the affirmative case): L Gavara-Nanu (Public Prosecutor).

Solicitor for Opai Kunangel Amin (for the negative case): K Kara.