Application by Gabriel Dusava

• Jurisdiction: Papua New Guinea
• Citation: (1998) SC581
• Date: 27 October 1998
• Court: Supreme Court
• Year: 1998

Full Title Enforcement Pursuant to Constitution s57; Application by Gabriel Dusava (1998) SC581

Supreme Court: Amet CJ, Los J, Hinchliffe J, Sakora J, Sevua J

Judgment Delivered: 27 October 1998

1 Constitutional Law—Constitution of the Independent State of Papua New Guinea—Leadership Code—Misconduct in office—Person in a leadership office may be proceeded against for alleged misconduct in a former leadership office.

2 Constitutional Law—Leadership Code—Misconduct in Office—Purpose of Leadership Code discussed.

3 Constitutional Law—National Goals and Directive Principles—Application of.

4 Constitutional Interpretation—Sch1.5—Fair and liberal meaning—The purposive and expansive approach—National Goals and Directive Principles and Constitutional Planning Committee Report as aid to interpretation—Constitution s25.

5 Constitutional Law—Interpretative Jurisdiction of Supreme Court—Constitution s18 and s19.

6 Precedent—Supreme Courts power to review and overrule its own earlier decision—per incuriam and obiter dicta—principles restated.

7 A person holding a current leadership office may be proceeded against for alleged misconduct in a former leadership office, and if found guilty dismissed from office.

8 Followed and affirmed SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500, and SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336.

9 Ex parte Moses Sasakila [1976] PNGLR 491, Constitutional Reference No 1 of 1977 [1977] PNGLR 362, Mopio v The Speaker [1977] PNGLR 420, In re Moresby North East Election Petition, Patterson Lowa v Goasa Damena [1977] PNGLR 429, The Public Prosecutor v John Aia of Mondo and Anor. [1978] PNGLR 224, Constitutional Reference No 3 of 1978; In the matter of s11(3) of the Inter–Group Fighting Act 1977 [1978] PNGLR 421, Constitutional Reference No 1 of 1978; Re Leo Morgan [1978] PNGLR 460, Premdas v The Independent State of Papua New Guinea [1979] PNGLR 329, Rooney (No 2) [1979] PNGLR 448, SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500, PLAR No 1 of 1980 [1980] PNGLR 326, SCR No 4 of 1980; Re Petition of MT Somare [1981] PNGLR 265, SCR No 2 of 1981; Re S19(1)(f) Criminal Code [1982] PNGLR 150, SCR No 1 of 1982; Re Phillip Bouraga [1982] PNGLR 178, SCR No 3 of 1982; Re s57 and s155(4) of the Constitution [1982] PNGLR 405, SCR No 6 of 1984; Re Provocation [1985] PNGLR 31, SCR No 3 of 1986, Reference by Simbu Provincial Executive [1989] PNGLR 151, SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336, Haiveta v Wingti (No 3) [1994] PNGLR 197, Nyali Ltd v Attorney–General of Kenya [1956] 1 QB 1, Marbury v Madison 1 Cranch, 137, 2 L Ed 60 (1803), Packer v Packer [1954] P 15, Young v Bristol Aeroplane Co Ltd [1940] KB 718; [1944] 2 All ER 293 (affirmed [1944] AC 163), A–G (NSW) v Brewery Employees' Union (1908) 6 CLR 469, R v Public Vehicles Appeals Licensing Tribunal (Tas) (1964) 113 CLR 207, Western Australia v Chamberlain Industries Pty Ltd (1970) 12 CLR 1, Morelle Ltd. v Wakeling [1955] 2 QB 379, Joscelyn v Nissen [1970] 2 QB 86 Schorsch Meir [1975] QB 416, Central London Property Trust Ltd. v High Trees House Ltd [1947] KB 30; [1956] 1 All ER 256, Attorney–General for Canada v Hallett and Carey Ltd [1952] AC 422, Prince Ernest of Hanover v Attorney–General [1956] Ch 188 and Reigate RDC v Sutton District Water Co (1908) 99 LT 168 referred to

10 Constitution, s26(1), s27(2), s53 and Organic Law on the Duties and Responsibilities of Leadership, s27 s28 considered

___________________________

Amet CJ:

The factual circumstances of this application are fully recited by Sakora J, whose opinion I have had the benefit of reading, and I am content to adopt them.

The single issue of law raised by this application was whether a person holding a current leadership office, as defined by s26 and s27 of the Constitution, may be referred and prosecuted before a leadership tribunal for alleged misconduct in another leadership office he had formerly occupied, and if found guilty of misconduct, dismissed from the current office.

This issue was referred to the Supreme Court pursuant to s19 of the Constitution in 1992. A senior five member Supreme Court ruled on this very issue. A four–member majority, of which Justice Los and I were members, determined this issue in the affirmative.

The law therefore as it presently applies, as determined by the Supreme Court in the SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336, is:

"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."

I was a member of the majority that determined that issue in that decision. All the issues raised in this application were raised and addressed in that decision.

I am not persuaded that the decision in SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336 is wrong and should not be followed.

I have read the opinions of all of my learned brothers. For the additional reasons that Justices Sakora, Hinchliffe and Sevua, give in their opinions, and with which I also agree, I would refuse the application and confirm the determinations of the Tribunal as being within jurisdiction.

Los J:

The facts and the background leading to the application have been set out in some detail by the Chief Justice and other judges, in particular Justice Sakora. There is no need to repeat them here. The Applicant has brought these proceedings before the Supreme Court under s57 of the Constitution. He says that the Supreme Court can review the decision of the Tribunal because beyond the issue of the penalty recommended by the Tribunal, there was an interference with his property rights. In summary it is argued that the tribunal had no jurisdiction to deal with the applicant consequently he was deprived of the entitlements pertaining to his office as a member of the Parliament and a Minister for State.

1. Jurisdiction

Various reasons have been advanced as the basis of the Leadership Tribunal lacking jurisdiction to inquire into the allegation of misconduct against the Applicant. The main one is that the tribunal could not conduct any inquiry and dismiss the applicant from his current office for any misconduct in his former office. This submission squarely attacks the the Supreme Courts interpretation and application of s26(1) and s27(2) and s28 of the Constitution and s27 and s28 of the Organic Law on the Duties and Responsibilities of Leadership (the Organic Law) in the early decisions. The two mains decisions are SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 and the SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336.

S26 applies to:

"1. (a) . . . "other ministers"

(b) . . .

(c) all other members of the Parliament

(d) . . .

(e) . . .

(f) all heads of Departments of the National Public Service

S27(2) says:

"In particular, a person to whom this Division applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by subsection (1)."

S28 (1)(a) says:

". . . an Organic Law may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law."

It seems these arguments were raised before the Tribunal but the tribunal ruled that it was bound by the Supreme Court decision in SCR No 2 of 1992; Reference by the Public Prosecutor [1992] PNGLR 336. It is submitted that the 1992 Reference is invalid because (a) it purports to follow a case which is not authority for the proposition for which it was cited, and (b) the decision is in breach of s100(3) of the Constitution. That is the 1992 decision violated the doctrine of the separation of powers in the constitution. In other words is it is the duty of the Legislature to legislate not the Courts.

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

This was the first case in which the Supreme Court had to deal...