Enforcement Pursuant to Constitution s57; Application by Gabriel Dusava

• Jurisdiction: Papua New Guinea
• Judge: Amet CJ, Los J, Hinchliffe J, Sakora J, Sevua J
• Judgment Date: 27 October 1998
• Citation: (1998) SC581
• Court: Supreme Court
• Year: 1998
• Judgement Number: SC581

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

Judgment Delivered: 27 October 1998

SC 581

In the Supreme Court ) SC Application No 24 of 1997
of Justice at Waigani )
Papua New Guinea
)

ENFORCEMENT PURSUANT TO
CONSTITUTION SECTION 57

APPLICATION BY GABRIEL
DUSAVA

Waigani : Amet CJ, Los, Hinchliffe,

Sakora & Sevua JJ

1998 : 1 May & 27 October

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 —

Constitutional Law — Leadership Code — Misconduct in Office — Purpose of Code discussed-

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

Constitutional Interpretation — Sch 1.5 — Fair and liberal meaning — The purposive and expansive approach — National Goals and Directive Principles and Constitutional Planning Committee Report as aid — Constitution s 25.

Constitutional Law — Interpretative Jurisdiction of Supreme Court — Constitution Ss 18 and 19.

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

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.

Followed and affirmed In re Joseph Auna [1980] PNGLR 500, and SC Reference No 2 of 1992 [1992] PNGLR 336.

G Sheppard, for the Applicant.

C Manek & J Kawi, for the State.

AMET CJ: The factual circumstances of this application are fully recited by Justice Sakora, 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 Ss 26 and 27 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 s 19 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 SC Reference No 2 of 1992 [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 the 1992 Reference 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 section 57 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 sections 26(1) and s 27(2) and 28 of the Constitution and sections 27 and 28 of the Organic Law on the Duties & Responsibilities of Leadership (the Organic Law) in the early decisions. The two mains decisions are Re Joseph Auna (1980) PNGLR 533 and the 1992 SC Reference (1992) PNGLR 336.

Section 26 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

Section 27(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)."

Section 28 (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 Reference No. 2 of 1992 (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 s 100(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.

Re: Joseph Auna (1980) PNGLR 533

This was the first case in which the Supreme Court had to deal with the issue similar to the one raised in this review. It was decided in that case that a leader could be dismissed from the leadership office he currently holds for a misconduct in an office he had previously held.

1992 SC Reference (1992) PNGLR 336.

In this reference the Court by majority adopted the principle in Auna's case. I was in the majority because I was persuaded with the argument that the court must enforce the primary purpose of the leadership code. That is the Leadership Code was intended to protect the people of Papua New Guinea from improper conducts by leaders. When a leader is guilty, he cannot be left to go scot-free in many ways including resignation. Therefore if a leader, who has resigned from his office to avoid an investigation prosecution and penalties, occupies another leadership office later he must be penalized or dismissed from that office for his misconduct in his earlier office. The Leadership Code and the Organic Laws are silent on the issue. The Court therefore applied the intent of the code with a comfort of the provisions of section 25 of the constitution. The Court had referred and relied on a part of the decision in Reference by Simbu Provincial Executive (1987) PNGLR 151 and said (reading from the head note No. 5):

"Section 25 of the Constitution is entirely relevant to 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."

The Court had taken the purposive approach because the leadership code was silent. This type of approaches has been followed in the general statutory interpretation in many early cases like Supreme Court Reference No 6 of 1984 (1985) PNGLR 31 and PLAR of 1980 (1980) PNGLR 326.

Mr Sheppard however submits that the Court in 1992 Reference had stepped out of the line and had stepped into the law making function of the Parliament. I am persuaded that in 1992 Reference, in our zeal to protect the people of Papua New Guinea from the action of any corrupt leader we had breached section 100 of the Constitution. In this respect I adopt what Kapi, DCJ said in his dissenting judgment at page 358-59:

"Applying the most liberal interpretation of these words, one cannot come to the construction that these words prescribe that a leader maybe charged in his current office for misconduct in a previous office ………………………………………………………………...

… In essence, the … proposition is a formulation of a new principle by the Court. This is not a conclusion reached by construction of the...