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
• Judge: Kapi DCJ:
• Judgment Date: 31 July 1992
• Citation: [1992] PNGLR 336
• Year: 1992
• Court: Supreme Court
• Docket Number: SCR No 2 of 1992
• Judgement Number: SC440

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

Judgment Delivered: 31 July 1992

SC440

PAPUA NEW GUINEA

[In the Supreme Court of Justice]

SCR NO 2 OF 1992

IN THE MATTER OF A SPECIAL REFERENCE PURSUANT TO

CONSTITUTION SECTION 19 and IN THE MATTER OF A

REFERENCE BY THE PUBLIC PROSECUTOR

Waigani: Kidu CJ

Kapi DCJ

Amet J

Los J

Andrew J

28th 29th & 30th April & 31 July 1992

Constitutional Law — Sch 2.9(1) — Supreme Court's power to overrule its own earlier decision.

Constitutional Law — Ss 26, 28(1) — Organic Law on the Duties and Responsibilities of Leadership — S 27 Leadership Code — The purpose of

Constitutional Interpretation — Sch 1.5 — Fair and Liberal Meaning — The Purposive and Expansive Approach s 25 Implementation of National Goals and Directive Principles as an Aid to

The Reference arises in circumstances where allegations of misconduct in Office were referred to Leadership Tribunals against members of the National Parliament who have resigned from Parliament before the Tribunals completed their investigations and determined the charges. The questions referred were whether the resignation oust or deprive the Tribunals of jurisdiction to continue to investigate and determine the charges of misconduct against the leader referred. A previous decision of the Supreme Court had addressed some of the questions raised: Supreme Court Reference No. 5 of 1980: Re Joseph Auna [1980] PNGLR 500.

HELD: (Per Kidu, CJ, Amet, Los and Andrew, JJ — Kapi DCJ dissenting)

(1) Schedule 2.9(1) is a clear constitutional power and freedom which cannot be qualifed and or inhibited by guidelines of practice. It is therefore not wrong in principle for the Supreme Court in a proper case, properly addressed and advised to over-rule its earlier decision by the same number of judges.

(2) The entire thrust and primary purpose of the Leadership Code is to preserve the people of Papua New Guinea from improper and corrupt conduct by their leaders — approved and adopted Constitution Reference No. 1 of 1978: Re: Leo Robert Morgan [1978] PNGLR 460.

(3) A leader is subject to and can only be prosecuted under the Leadership Code whilst he currently holds an office to which the Code applies — adopted and affirmed Re Joseph Auna (supra).

(4) A person holding a current 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 -adopted and affirmed from Re Joseph Auna (supra).

(5) Section 25 of the Constitution is entirely relevant to a generous interpretation of the Constitution, avoiding the austerity of tabulated legalism and enables the National Goals and Directive Principles to be fully taken into account — Adopted and referred to Barnett, J. in SCR No. 3 of 1986; Reference by Simbu Provincial Executive [1987] PNGLR 151 at 174.

CASES CITED:

The following cases are cited in the judgement.

Supreme Court Reference No. 5 of 1980: Re Joseph Auna [1980] PNGLR 500

Supreme Court Reference No.2 of 1982: Re Opai Kunangel Amin, Unreported Supreme Court Judgement SC 231.

The Public Prosecutor v John Aia of Mondo & Another [1978] PNGLR 224 at 232 & 233

Leo Robet Morgan [1978] PNGLR 460 at 464

Reference by Simbu Provincial Executive [1987] PNGLR 151 at 174.

Minimum Penalties Legislation [1984] PNGLR 314 at 334-335

Minister of Home Affairs v Fisher [1980] AC 319 at 328

Supreme Court Reference No. 2 of 1981 [1982] PNGLR 150

Supreme Court Reference No. 3 of 1982 [1982] PNGLR 405

Supreme Court Reference No. 5 of 1982 [1982] PNGLR 379

Supreme Court Reference No. 5 of 1985 [1985] PNGLR 329

Public Employees Association of Papua New Ginea v Public Services Commission (Unreported judgement of the Supreme Court SC 253)

Chan v Investigating Authority [1988] PNGLR 43

The State v The Independent Tribunal; Exparte Sasakika [1976] PNGLR 491

A/Public Prosecutor v Uname Aumane (supra)

Public Prosecutor v Apava Keru and Public Prosecutor v Aia Moroi [1985] PNGLR 78

The State v The Senior Stipendary Magistrate [1976] PNGLR 344 at 349

The State v Misimb Kais [1978] PNGLR 241

Sangumu Wauta v The State [1978] PNGLR 326 at 333

Acting Public Solicitor v Uname Aumane [1980] PNGLR 510

St Leonard's Municipal Council v Williams [1966] Tas SR 166 at 169

Daymond v South West Water Authority [1976] AC 609 at 645

Johnson v Moreton [1980] AC 37 at 50

R v Hucklebridge; A-G's reference (No. 3 of 1980) [1980] 1 WLR 1284 at 1289

Aoko v Fagbenu [1961] All NLR 400

R v Coney [1982] 8 Q.B.D. 534 at pp 550 551

State v Wik Kor [1983] PNGLR 4

M Unagui & D Canning for Public Prosecutor

D Keta for Attorney-General

M Laufa (Interested for T Ila)

KIDU CJ, AMET, LOS & ANDREW JJ: 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 s 28(1)(g) and s 27(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 s 26 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: Supreme Court Reference No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 and Supreme Court Reference No 2 of 1982; Re Opai Kunangel Amin, Unreported Supreme Court Judgment SC 231.

The Referrer invited the Court to re-examine the reasoning and the correctness of the decision in Re Joseph Auna. 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 Auna's Case 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 s 26(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 s 26(1) of the Constitution."

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."

Supreme Courts Power to Review and Over-rule An Earlier Supreme Court Decision.

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

Schedule 2.9(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 over-ruled 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...