Bona, Public Prosecutor of PNG v Kidu, Chief Justice of PNG [1992] PNGLR 316 (17 July 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 316 - Kina Bona, Public Prosecutor of PNG v Buri William Kidu, Chief Justice of PNG 

[1992] PNGLR 316

N1139

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

KINA BONA - PUBLIC PROSECUTOR OF PAPUA NEW GUINEA

V

BURI WILLIAM KIDU - CHIEF JUSTICE OF PAPUA NEW GUINEA

Waigani

Brown J

17 July 1992

CONSTITUTIONAL LAW - Prerogative writ of mandamus - Whether mandamus lies to compel Chief Justice to set up Leadership Tribunal instanter.

CONSTITUTIONAL LAW - Member of Parliament taking office pursuant to success at fresh elections having resigned from previous House when referred to Leadership Tribunal for alleged misconduct in office - Application to appoint Leadership Tribunal instanter - Whether mandamus will lie against appointing authority, the Chief Justice - Factual considerations to be taken into account when exercising discretion whether or not writ warranted - Comments generally on propriety of application.

LEADERSHIP TRIBUNAL - Alleged delay in appointment - Reasons for delay - Whether insufficient to justify the Court's interference by way of writ - Use of Public Prosecutor's opinion that delay will put the integrity of Constitution and Leadership Code in jeopardy - Opinion pre-empts finding of misconduct - Opinion not relevant in circumstances of the case - Whether the peremptory nature of application is reasonable.

PARLIAMENT - Constitution of the House of Parliament - Rights of duly elected members.

PARLIAMENT - Allegation of Members' misconduct in office - Reference to Leadership Tribunal - Avenue of resignation open to members - Nominated and re-elected in subsequent general elections - Eligibility to take up seats in new House - Doctrine of Separation of Powers apposite.

Facts

This was an application by the Public Prosecutor for leave to issue an order nisi for a writ of mandamus forcing the appropriate authority, the Chief Justice, to appoint a Leadership Tribunal for the express purpose of inquiring into a reference made by the Public Prosecutor upon charges of misconduct by three recently elected members. These charges arose out of acts done by these persons when they were Members of Parliament in the previous House, but had to be dropped when they resigned their membership of the House. They were re-elected at the national elections and were to be sworn in as Members of Parliament in the first sitting of the new House. The Public Prosecutor's view was that the alleged misconduct should be referred to a Leadership Tribunal instantly so that they could be suspended from duty and, therefore, denied any opportunity to engage in any of the official duties of office until all outstanding allegations of misconduct in office are resolved. The Chief Justice justified the delay on grounds, inter alia, that substantial issues raised were before the Supreme Court in another case, and that Court was scheduled to give a ruling on 27 July 1992 i.e. 11 days hence. In order not to preempt that decision, he would not set up a tribunal until after the ruling.

Held

1.       Some account must be taken of factual considerations, e.g. the ordinary business of the Court and the arrangement which must become necessary if a Judge of the National Court and two Senior Magistrates are to be released from their duties to constitute the tribunal.

2.       The period of delay in a previous matter was at least a month for the necessary administrative arrangements to be made. In the instant case, the period did not warrant interference by prerogative writ.

Cases Cited

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

Counsel

W Canning with S Soi for the plaintiff

No appearance for the defendant

17 July 1992

BROWN J: This application is brought in the shadow, as it were, of the Parliament Building where, at this very time, members are gathering for the first meeting of the Fifth Parliament.

I am asked to make orders in the nature of mandamus:

"compelling the defendant to appoint a tribunal under section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership to investigate and determine allegations of misconduct in office against three members of the National Parliament, namely:

(a)      the MP, Member for Tewai-Siassi Open;

(b)      the MP, Member for Sumkar Open; and

(c)      the MP, Member for Dei Open."

I am told that the three members took office yesterday and, hence, became subject to the Leadership Code. They had resigned from their parliamentary office as members of the previous House earlier this year. This occurred after they had been referred to a Leadership Tribunal for alleged misconduct.

Mr Canning, for the plaintiff, referred me to the Supreme Court's decision in SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500,(hereafter Auna's case) where the Court held that a "person to whom the Leadership Code applies pursuant to s 26(1) of the Constitution may only be dealt with by a tribunal constituted under s 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership, for misconduct in office whilst he is the holder of an office to which the Code applies. It need not be the office which was the subject of investigation into alleged misconduct. He cannot be so dealt with when he no longer occupies an office to which the Code applies.

In this case, Mr Canning says the three recently elected members are again subject to the Leadership Code and, accordingly, the Public Prosecutor now seeks to refer instanter these three for investigation and determination of allegations of misconduct in their previous office. He asks the Chief Justice to appoint a tribunal for that purpose. The Chief Justice has declined to forthwith appoint. The Prosecutor says that the Chief Justice's reasons contained in his letter of the 16 July 1992 amount to an implied exercise of a discretion to delay appointment, a discretion not available to him.

Mr Canning says that s 27(7) of the Organic Law on the Duties and Responsibilities of Leadership gives the Chief Justice no discretion, the power to appoint is an administrative act and not imbued with any judicial function.

I am satisfied, if it be administrative only (and I make no decision on that point for Counsel has not argued it, but merely asserted it), it hardly seems proper for the Public Prosecutor to come to this Court today to complain about the failure to appoint a Tribunal instanter.

Surely, there must be some consideration given to the ordinary business of the Court and the arrangements which must become necessary if a judge of the National Court and two senior magistrates of the District Court are to be taken from their duties to constitute a tribunal.

In fact, the Public Prosecutor points to the reasons given by the Chief Justice in his letter as inadequate. Those reasons go to circumstances surrounding a Supreme Court Reference presently before that Court, which has reserved its decision.

The Public Prosecutor made the reference, which poses questions which may well affect the manner in which any future Leadership Tribunal will conduct its enquiries, and manner and extent of the exercise of powers available to it.

The Chief Justice says in the latter part of his letter:

"If I were to set up a Leadership Tribunal now there would be certain conclusions drawn that I am pre-empting the Supreme Court decision. Also it could be justifiably inferred that I have intimated to you that the Supreme Court decision is going to be in your favour and it is on that basis that the Tribunal has been set up.

The Supreme Court will hand down its decision in SCR 2 of 1992 during the Supreme Court sittings commencing Monday, 27 July 1992. It is not my intention to pre-empt the Court's decision.

I shall not be setting up a Tribunal as requested by you until after the ruling on SCR 2 of 1992.[i]¹

Yours sincerely

B W KIDU

Chief Justice"

It seems to me the honourable Chief Justice has approached the matter of appointment of the Tribunal in an eminently sensible manner for the reasons given. But that does not satisfy the Public Prosecutor. He wishes the appointment instanter. Well, if I look at Auna's case, I see that on the 21 August, the Ombudsman Commission, having satisfied itself that there was a prima facie case, referred the matter to the Public Prosecutor.

The Public Prosecutor considered the matter. On 26 September, a tribunal was constituted under s 27(7)(e) and on 30 September the Public Prosecutor referred the matter.

So there seems in that case a period of at least 1 month for the necessary administrative arrangements to be made. In this case, the request was made yesterday. This period of 1 day giving rise to a complaint, in the circumstances attending the first sitting of Parliament (when the members of this Court customarily attend Parliament to be present when the Chief Justice takes the oath of members) seems extraordinary if it is suggested that the Chief Justice's failure now warrants my interference by prerogative writ.

The Public Prosecutor's reasons for his complaint are found in paras 10 and 11 of his affidavit:

10.     "I state and verily believe that the course of action I proposed was necessary if I was to properly discharge my constitutional duties of office as I considered that the actions of the aforesaid members of the National Parliament in resigning before a leadership tribunal appointed for the purpose of investigating and determining allegations of misconduct in office against them, put in jeopardy the integrity of the Constitution and the Leadership Code of Papua New Guinea."

11.     "I furthermore state and verily believe that any leader who has previously resigned, thereby depriving a tribunal of jurisdiction to determine the allegations against him, should, if and when he becomes a leader, be suspended from duty as soon as possible and denied any opportunity to engage in any of the official duties of his office until all outstanding allegations of misconduct in office have been resolved by a tribunal appointed by the Chief Justice".

Quite frankly his personal views in para 11 should not cloud this Court's duty in determining whether or not to grant such a prerogative writ. I am concerned with the law as it now stands. I am satisfied that there is no basis to ground such a writ on the fact of one day's delay. It is extraordinary that no account is taken of the need to balance the business of the Court and the organisation required to seek the release of members of the judiciary for tribunal purposes with the nature of the request, which has not been shown to have such extraordinary urgency as to warrant the Chief Justice dispensing with his manifold duties instanter.

I take issue with the Public Prosecutor's implied assertion in his para 10, that the course of action proposed (the instanter appointment of a Tribunal), if thwarted, will put in jeopardy the integrity of the Constitution and Leadership Code. That assertion takes no account of the views of the Supreme Court in Auna's case, where the Court said:

"We are of opinion that the Leadership Code is directed to persons actually holding an office as specified in s 26 of the Constitution; and that, as the Tribunal put it in this case, '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'. All the provisions of the Constitution and the Organic Law are consistent with, and support, that conclusion. Once the primary purpose of the legislation is clear, it is not anomalous that a person, having ceased to hold any of the designated offices, becomes immune from proceedings under the Leadership Code in respect of any alleged misconduct in office, during the time he held office. The purpose is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and, if found guilty, dismissed from his current office."

These three members have not been dealt with to finality by the previous Leadership Tribunal. The avenue of resignation was open to them. To suggest, as the Public Prosecutor does, that the course adopted by these three by resigning "puts in jeopardy the integrity of the Constitution" is an opinion which has no basis in law (see the quoted views of the Supreme Court in Auna's case). In fact, the plaintiff's reasons, expressing as they do a personal view of the propriety of these three now engaging in parliamentary office, possibly explains why these proceedings are seen by the plaintiff as so urgent. It certainly presupposes an adverse finding by any tribunal constituted.

I consider the doctrine of separation of powers most apposite. These members' nominations had been accepted by the Electoral Commissioner, they had been elected by their constituency and are, consequently, eligible to take their seat in this House.

The urgency of this application has no merits, in my view, for the reasons expressed in Auna's case. These members are still amenable to the jurisdiction of a tribunal duly constituted, and that tribunal still needs to make due enquiry, which entails time. I am loathe to appear to interfere with the constitution of the House of Parliament on this day by granting orders, when the members are legally entitled to take their seats.

The Chief Justice was served at 8:40 am this morning, with this application. There has been no appearance on his behalf or by him. Mr Canning now asks me to dispense with compliance with the rules of the National Court so that the application may be heard and seeks leave for review. In the circumstances I refuse to do so for I am not satisfied as to urgency. Consequently, I refuse dispensation, there being no appearance of the Chief Justice.

In any event, I am not satisfied at this juncture that there is any right in the Public Prosecutor to seek orders, if that right is based on his assertions in paras 10 and 11 of his affidavit. Nevertheless, I refuse leave, basing my refusal on the peremptory nature of the application when the Chief Justice cannot be said to have had any reasonable opportunity to deal with the request to appoint.

I formally refuse leave to apply for judicial review.

Lawyer for the plaintiff: Public Prosecutor

Lawyer for the defendant: No appearance

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[i]           Reported infra 336.