Christopher Seseve Haiveta, Governor, Gulf Province v Pondros Kaluwin, Public Prosecutor and Honourable Job Pomat, Speaker, National Parliament and Honourable Davis Steven, Attorney-General and Ombudsman Commission and The Independent State of Papua New Guinea and Honourable Sir Gibbs Salika, Chief Justice (2020) N8430

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 27 July 2020
• Court: National Court
• Citation: (2020) N8430
• Docket Number: OS (HR) NO 3 OF 2020
• Year: 2020
• Judgement Number: N8430

Full Title: OS (HR) NO 3 OF 2020; Christopher Seseve Haiveta, Governor, Gulf Province v Pondros Kaluwin, Public Prosecutor and Honourable Job Pomat, Speaker, National Parliament and Honourable Davis Steven, Attorney-General and Ombudsman Commission and The Independent State of Papua New Guinea and Honourable Sir Gibbs Salika, Chief Justice (2020) N8430

National Court: Cannings J

Judgment Delivered: 27 July 2020

N8430

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (HR) NO 3 OF 2020

CHRISTOPHER SESEVE HAIVETA, GOVERNOR, GULF PROVINCE

Plaintiff

V

PONDROS KALUWIN, PUBLIC PROSECUTOR

First Defendant

HONOURABLE JOB POMAT, SPEAKER, NATIONAL PARLIAMENT

Second Defendant

HONOURABLE DAVIS STEVEN, ATTORNEY-GENERAL

Third Defendant

OMBUDSMAN COMMISSION

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

HONOURABLE SIR GIBBS SALIKA, CHIEF JUSTICE

Sixth Defendant

Waigani: Cannings J

2020: 10th, 17th, 27th July

HUMAN RIGHTS – application for enforcement – Leadership Code proceedings – request by Public Prosecutor to Chief Justice to appoint leadership tribunal – whether Public Prosecutor’s request infringed human rights of leader – lapse of more than 11 years after previous tribunal inquiring into same allegations of misconduct was disbanded – whether Public Prosecutor’s request was harsh, oppressive etc under Constitution, s 41 (proscribed acts) – whether appointment of second tribunal would infringe leader’s right to fair hearing within a reasonable time – Constitution, s 37 (protection of the law) – whether Public Prosecutor’s request entailed breach of the principles of natural justice – Constitution, s 59 (principles of natural justice).

REMEDIES – whether necessary or appropriate to grant: declarations as to breach of human rights, injunction to restrain appointment of another tribunal, permanent stay of leader’s suspension –Constitution, s 57 (enforcement of guaranteed rights and freedoms), s 155(4) (the national judicial system).

The plaintiff, a member of the National Parliament, commenced proceedings by originating summons in the National Court, seeking declarations as to the breach of his human rights and permanent injunctions regarding the proposed appointment in 2020 of a leadership tribunal to inquire into allegations of misconduct in office against him, which were the subject of a matter concerning him referred to a leadership tribunal in February 2007. The plaintiff claimed that a request to appoint a new tribunal to inquire into the same allegations, made by the Public Prosecutor to the Chief Justice in May 2018, was harsh and oppressive for purposes of s 41 of the Constitution, amounted to infringement of his right under ss 37(1), (3) and (11) of the Constitution to a fair hearing within a reasonable time and would deprive him of the right to a fair hearing and protection of the principles of natural justice under s 59 of the Constitution. The defendants were the Public Prosecutor, the Speaker, the Attorney-General, the Ombudsman Commission, the State and the Chief Justice. All apart from the Chief Justice participated in the proceedings, and opposed all relief sought by the plaintiff.

Held:

(1) The Public Prosecutor’s request to the Chief Justice in May 2018 to appoint another leadership tribunal was harsh, oppressive and not warranted by the requirements of the particular circumstances for purposes of s 41 of the Constitution as: (a) the request was made nine months after the plaintiff had become a leader again, after a lapse of ten years; (b) the request was left un-pursued by the Public Prosecutor for one year, 10 months before the Chief Justice indicated his intention in March 2020 to appoint a new tribunal; (c) the request could only result in appointment of a new tribunal (two members of the previous tribunal having died), in 2020, that would have to rehear evidence presented to the previous tribunal 13 years ago; (d) in the 13-year period since the previous tribunal disbanded, it is reasonably expected that some evidence would have been lost or misplaced, and some of the plaintiff’s witnesses had died; (e) the subject matter of the allegations traversed the period from 1993 to 2002, meaning that a tribunal appointed in 2020 would be inquiring into alleged misconduct committed 18 to 27 years ago.

(2) The Public Prosecutor’s request to the Chief Justice, in May 2018, to appoint another leadership tribunal, unpursued for one year, ten months, amounted to infringement of the plaintiff’s right under ss 37(1), (3) and (11) of the Constitution to the full protection of the law, in particular to a fair hearing of allegations of misconduct in office before a leadership tribunal within a reasonable time, in that the appointment in 2020 of a new tribunal cannot result in a fair hearing or a hearing within a reasonable time, due to: (a) the subject matter of the allegations traversed the period from 1993 to 2002, meaning that a tribunal appointed in 2020 would be inquiring into alleged misconduct committed 18 to 27 years ago; (b) in the 13-year period since the previous tribunal disbanded, it is reasonably expected that some evidence would have been lost or misplaced, and some of the plaintiff’s witnesses had died; (c) the passage of time between when the Ombudsman Commission referred the plaintiff’s matter to the Public Prosecutor (January 2006) and when a new tribunal could, if its appointment is not restrained, be appointed (say August 2020), is (excluding the period of ten years from August 2007 to August 2017 when the plaintiff was not subject to the Leadership Code)was four years, seven months.

(3) Declarations were made that the plaintiff’s human rights under ss 41(1) and 37(1), (3) and (11) of the Constitution had been and would, if not restrained, be further infringed, and a permanent injunction was granted, enjoining the appointment of a new tribunal to inquire into the allegations referred to the previous tribunal in February 2007, and a permanent stay of the plaintiff’s February 2007 suspension was granted.

Cases Cited

The following cases are cited in the judgment:

Application by Benetius Gehasa (2005) N2817

Application by Roger Bai Nimbituo & 4 Others (2015) N6516

Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007) N5033

Bomai Wati v David Gavera (2013) N5363

Bona v Kidu [1992] PNGLR 316

Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598

Joyce Avosa v Rene Motril (2014) N5732

Leahy v Kaluwin (2014) N5813

Morobe Provincial Government v John Kameku (2012) SC1164

David Simon v Michael Koisen (2018) N7075

Paru v Kotigama & Bmobile-Vodafone (2015) N6089

Petrus & Gawi v Telikom PNG Ltd (2008) N3373

Public Employees Association of PNG v Public Services Commission [1983] PNGLR 206

Re Belden Namah (2020) SC1946

Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership Tribunal (2008) SC1011

Re Ricky Yanepa [1988-89] PNGLR 166

SC Ref No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314

SC Ref No 2 of 1992, Reference by the Public Prosecutor [1992] PNGLR 336

SC Ref No 1 of 2010, Re Constitutional (Amendment) Law 2008 (2013) SC1302

SC Ref No 2 of 2016, Re Namah v Poole (2016) SC1516

SC Ref No 5 of 1980, Re Joseph Auna [1980] PNGLR 500

The State v Peter Kakam Borarae [1984] PNGLR 99

The State v Peter Painke [1976] PNGLR 210

ORIGINATING SUMMONS

This was an application for enforcement of human rights in which the plaintiff sought declarations and permanent injunctions to restrain appointment of a leadership tribunal.

Counsel

P A Lowing & P Andrew, for the Plaintiff

G Geroro, for the First Defendant

E S Geita & H Wangi, for the Second, Third and Fifth Defendants

R P Koralyo, for the Fourth Defendant

27th July, 2020

1. CANNINGS J: The plaintiff, the Honourable Christopher Seseve Haiveta MP, the Member for Gulf Provincial and Governor of Gulf Province, applies by originating summons for enforcement of his human rights. He seeks declarations and permanent injunctions regarding the proposed appointment in 2020 of a leadership tribunal to inquire into allegations of misconduct in office against him, which were the subject of a matter concerning him referred by the Public Prosecutor to a leadership tribunal in February 2007.

2. The plaintiff claims that a request made by the Public Prosecutor to the Chief Justice in May 2018 to appoint a new tribunal to inquire into the same allegations, was and continues increasingly to be:

· harsh and oppressive for the purposes of s 41 of the Constitution;

· an infringement of his right under ss 37(1), (3) and (11) of the Constitution to a fair hearing of such allegations of misconduct in office before a leadership tribunal within a reasonable time; and

· a deprivation of his right to a fair hearing and protection of the principles of natural justice under s 59 of the Constitution.

3. The defendants are:

· the Public Prosecutor, first defendant;

· the Speaker of the National Parliament,...