Re The Leadership Code: In the Matter of a Special Reference pursuant to Constitution s19 and In the Matter of a Reference by the Public Prosecutor [1992] PNGLR 336; [1993] 2 Law Reports of the Commonwealth 114 (1992) SC440

• Jurisdiction: Papua New Guinea
• Citation: [1992] PNGLR 336
• Date: 31 July 1992
• Docket Number: SCR No 2 of 1992
• Court: Supreme Court
• Year: 1992

Full Title: SCR No 2 of 1992; Re The Leadership Code: In the Matter of a Special Reference pursuant to Constitution s19 and In the Matter of a Reference by the Public Prosecutor [1992] PNGLR 336; [1993] 2 Law Reports of the Commonwealth 114 (1992) SC440

Supreme Court: Kidu CJ, Kapi DCJ, Amet J, Los J, Andrew J

Judgment Delivered: 31 July 1992

1 Constitutional law—Leadership Code—purpose of—Organic Law on the Duties and Responsibilities of Leadership

2 Constitutional law—National Goals and Directive Principles—application

3 Constitutional law—Constitution Sch1.5—fair and liberal meaning—purposive and expansive approach—National Goals and Directive Principles as aid—Constitution s25

4 Precedents—Supreme Court's power to overrule its own earlier decision—Constitution Sch2.9(1)

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Kidu CJ, Amet J, Los J, Andrew J:

This Reference has raised a number of fundamentally important questions concerning the constitutional powers and jurisdiction of a Leadership Tribunal (the Tribunal) established by virtue of Constitution s28(1)(g) and s27(7) of the Organic Law on the Duties and Responsibilities of Leadership, (the Organic Law) to investigate and determine allegations of misconduct in office against persons subject to the Leadership Code (the Code)—that is persons specified in s26 of the Constitution.

In particular, the Reference concerns situations where allegations of misconduct in office have been made against members of the National Parliament, who have tendered their resignations, before the Tribunals have completed their investigations and determined the allegations.

The Referrers fundamental proposition was that, although a member of Parliament who was being prosecuted before a Tribunal, had the constitutional liberty to resign his seat as a member that resignation did not oust or deprive the Tribunal of jurisdiction to continue its responsibility to investigate and determine the allegations of misconduct made against that person.

Two previous decisions of the Supreme Court have addressed some of the questions raised by this Reference: SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 and SCR No 2 of 1982; Re Kunangel [1991] PNGLR 1.

The Referrer invited the Court to re–examine the reasoning and the correctness of the decision in SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500. It was submitted that that decision is now inappropriate to the circumstances of the country where members of the National Parliament who were either referred for prosecution before a Tribunal, being prosecuted or after having been found guilty of misconduct in office, were resigning from office and avoiding accountability for their alleged or in fact proven misconduct in office.

It was in these circumstances that this Reference was made and the Court was very vigorously invited to review the decision in SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 as to the extent of the jurisdiction of the Tribunal.

The two principal questions referred in that case were essentially the same as raised in this Reference. They were:

"Does the Tribunal have jurisdiction to hear and determine a reference where the holder of an office under s26(1) of the Constitution is:

(1) no longer occupying the office which was the subject of investigation into alleged misconduct,

(2) no longer the holder of the office which he occupied at the time of alleged misconduct but is the holder of another office within the meaning of s26(1) of the Constitution."

The Court held that:

"A person to whom the Leadership Code applies pursuant to s26(1) of the Constitution may only be dealt with by a Tribunal constituted, under s27(7)(e) of the Organic Law on the 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."

Supreme Courts Power to Review and Overrule An Earlier Supreme Court Decision.

The issue was raised as to the propriety and the proper judicial methodology of reviewing and overruling a decision of this Court. The issue was posed as to whether the subsequent Court, being invited to review and possibly overrule the earlier decision, should not be constituted by a numerically larger Court.

Sch2.9(1) of the Constitution prescribes clearly that the Supreme Court is not bound by it's own earlier decisions. It has been held as a matter of practice, to maintain consistency and judicial comity, that an earlier decision should only be overruled after much care and only in a clear case, and that "it is desirable that the Court be constituted by more than three judges and, if possible, the Chief Justice of the day should preside"—per Wilson J in The Public Prosecutor v John Aia of Mondo and Another [1978] PNGLR 224.

Whilst we apprehend that these guidelines are desirable as a matter of practice, they cannot qualify and inhibit the clear constitutional power and freedom this Court is given not to be bound by its earlier decisions. The suggestion that "it is desirable that the court be constituted by more than three judges" is also a practice guidance where the decision being reviewed was by a three member Court. It does not mean that a three member Court could not, in a proper case, upon full submission and consideration, review and overrule an earlier decision of a three member Court. Nor indeed is it a rule of law that a properly constituted five member Court, such as this one is, presided over by the Chief Justice, could not properly review and overrule the decision in SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500, also a five member Court presided over by the Chief Justice. We do not believe that it is wrong in principle for the Supreme Court in a proper case, properly addressed and advised to overrule its earlier decision decided by the same number of judges. This is clearly the intent of Sch2.9(1).

We are therefore prepared to consider the Referrers vigorous submissions that several propositions in SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 ought to be reviewed.

The Purpose of the Leadership Code.

Firstly, it was contended for the Referrer that, the proposition that the entire thrust and the primary purpose of the Code is the removal of unworthy leaders should be rejected. It was submitted that the primary purpose of the Code is not the removal or dismissal of unworthy leaders, but rather, as was stated by the Supreme Court in Constitutional Reference No 1 of 1978; Re Leo Morgan [1978] PNGLR 460 at 464: "to preserve the people of Papua New Guinea from misconduct by its leaders."

The Court in SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 stated at 504:

"We are of the opinion that the Leadership Code is directed to persons actually holding an office as specified in s26 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 leadership office which he had formerly held; and, if found guilty, dismissed from his current office."

We accept the Referrers submission that because it has been over eleven years since the decision in that case and because the circumstances giving rise to that decision have changed markedly it is appropriate that this Court review the basis for that decision, in the light of the changing circumstances.

The main differing circumstance is that we do not think that it was ever in the Courts contemplation that a "leader," in particular a "member of Parliament" who was being prosecuted for alleged misconduct in office, would resign from office, in the course of the prosecution, or after having been found guilty but before determination was made as to penalty, to avoid the jurisdiction of the Tribunal.

In the light of the circumstances of recent years involving in particular members of Parliament, supported by the specific provisions of Constitution s27, we accept the Referrers submission that the entire thrust and the primary purpose of the Code...