Kina Bona, Public Prosecutor of Papua New Guinea v Buri William Kidu, Chief Justice of Papua New Guinea

• Jurisdiction: Papua New Guinea
• Judge: Brown J
• Judgment Date: 17 July 1992
• Citation: [1992] PNGLR 316
• Court: National Court
• Year: 1992
• Judgement Number: N1139

National Court: Brown J

Judgment Delivered: 17 July 1992

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 ground, 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 ...