Hon Belden Norman Namah v Leadership Tribunal Comprising The Honourable Justice Terence Higgins and Senior Magistrates Patricia Tivese and Alex Kalandi, Public Prosecutor, Ombudsman Commission, Chief Justice, The Independent State Of Papua New Guinea (2020) N8407

• Jurisdiction: Papua New Guinea
• Judge: Cannings J
• Judgment Date: 07 July 2020
• Court: National Court
• Citation: (2020) N8407
• Docket Number: OS (JR) NO 299 OF 2018
• Year: 2020
• Judgement Number: N8407

Full Title: OS (JR) NO 299 OF 2018; Hon Belden Norman Namah v Leadership Tribunal Comprising The Honourable Justice Terence Higgins and Senior Magistrates Patricia Tivese and Alex Kalandi, Public Prosecutor, Ombudsman Commission, Chief Justice, The Independent State Of Papua New Guinea (2020) N8407

National Court: Cannings J

Judgment Delivered: 7 July 2020

N8407

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO 299 OF 2018

HON BELDEN NORMAN NAMAH

Plaintiff

V

LEADERSHIP TRIBUNAL COMPRISING

THE HONOURABLE JUSTICE TERENCE HIGGINS AND

SENIOR MAGISTRATES PATRICIA TIVESE AND ALEX KALANDI

First Defendant

PUBLIC PROSECUTOR

Second Defendant

OMBUDSMAN COMMISSION

Third Defendant

CHIEF JUSTICE

Fourth Defendant

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Fifth Defendant

Waigani: Cannings J

2020: 24th, 30th June, 1st, 7th July

JUDICIAL REVIEW – review of decision of leadership tribunal to find leader guilty of misconduct in office and recommend dismissal from office – whether Public Prosecutor functus officio after a first tribunal to which the matter was referred was permanently restrained from dealing with it – whether Public Prosecutor obliged to obtain fresh referral of matter from the Ombudsman Commission – whether Chief Justice obliged to revoke appointment of first tribunal before appointing second tribunal – whether Public Prosecutor, Chief Justice and/or leadership tribunal exceeded jurisdiction.

NATURAL JUSTICE – leadership tribunals –whether a leader found guilty of misconduct in office has a right to be heard at a separate hearing on the question of penalty – tribunal proceedings subject to the principles of natural justice – Constitution, ss 28(1)(g), 28(5), 59 – Organic Law on the Duties and Responsibilities of Leadership, s 27(4).

The Ombudsman Commission referred a matter of alleged misconduct in office regarding the plaintiff to the Public Prosecutor for prosecution before a leadership tribunal. The Public Prosecutor requested the Chief Justice to appoint a tribunal, which he did, and the Public Prosecutor referred the matter to the tribunal. However, that tribunal was, on application by the plaintiff, permanently restrained by the National Court from conducting any further hearing of the plaintiff’s matter on the ground of apprehended bias. The Public Prosecutor then requested the Chief Justice to appoint a second tribunal, which he did, and the Public Prosecutor then referred the same matter to the second tribunal. Upon appearing before the second tribunal, the plaintiff questioned its jurisdiction and requested it to refer constitutional questions to the Supreme Court, his contention being that it lacked jurisdiction, as the Public Prosecutor was functus officio and the tribunal had been unlawfully appointed. The tribunal declined the request and proceeded to inquire into the matter. After receiving the evidence and hearing submissions from counsel for the Public Prosecutor and the plaintiff, the tribunal reserved its decision. It found that the plaintiff was guilty of misconduct in office and recommended that he be dismissed from office. The plaintiff then, before the recommendation for dismissal was implemented, applied to the National Court and was granted leave for judicial review of the tribunal’s decision and a stay of its decision. At the trial of the application for judicial review the plaintiff raised two principal arguments in support of his grounds of review: (1) that the Public Prosecutor’s request to the Chief Justice to appoint a second tribunal and subsequent decisions, including the tribunal’s final decision were unconstitutional and invalid, in that: (a) the Public Prosecutor was functus officio as he had discharged his functions in relation to the matter referred to him by the Ombudsman Commission; and (b) the appointment of the first tribunal was not revoked prior to appointment of the second tribunal; and (2) the second tribunal failed to afford natural justice to the plaintiff, in that it failed to give him an opportunity to be heard before deciding to recommend that he be dismissed from office.

Held:

(1) The Public Prosecutor was not functus officio as there was no law expressly or impliedly requiring him to obtain a fresh referral of a matter from the Ombudsman Commission in circumstances where the tribunal to which the first referral had been referred was restrained from further dealing with it, and the terms of the injunction restraining the first tribunal did not restrain the Public Prosecutor from using the matter he had referred to the first tribunal as the basis for his request to the Chief Justice to appoint a new tribunal or from referring the same matter to and prosecuting it before the second tribunal.

(2) Though it might be desirable for the appointment of members of a leadership tribunal that has been permanently restrained from dealing with a matter, to be expressly revoked before appointment of a replacement tribunal, it is constitutionally unnecessary where, as in this case, the jurisdiction of the first tribunal was dissolved by operation of the order of the National Court, resulting in the appointment of the members of the first tribunal being by necessary implication dissolved.

(3) The Public Prosecutor’s request to the Chief Justice to appoint a second tribunal, the appointment of the second tribunal by the Chief Justice, the referral of the matter to the second tribunal, the prosecution before the second tribunal and the proceedings of the second tribunal did not involve errors of jurisdiction arising from the Public Prosecutor’s failure to obtain a fresh referral from the Ombudsman Commission or the Chief Justice’s failure to formally revoke the appointment of members of the first tribunal.

(4) A leadership tribunal is bound by ss 28(1)(g), 28(5) and 59 of the Constitutionand s 27(4) of the Organic Law on the Duties and Responsibilities of Leadership to conduct its proceedings in accordance with the principles of natural justice, the minimum requirements of which are to act fairly and be seen to act fairly.

(5) If a tribunal decides that the leader is guilty of misconduct in office, it must, in order to act fairly and be seen to act fairly (because of the discretion available to it as to whether to recommend dismissal from office or imposition of an alternative penalty) conduct a separate hearing and provide the leader with the opportunity to be heard on the question of penalty.

(6) Here, the tribunal failed to afford natural justice to the plaintiff, as it failed to give him the opportunity to be heard before recommending that he be dismissed from office.

(7) Declared: that there were no errors of jurisdiction arising from the alleged errors of the Public Prosecutor not obtaining a fresh referral from the Ombudsman Commission and the Chief Justice not revoking the appointment of members of the first tribunal, but there was an error of jurisdiction in the second tribunal’s recommendation that the plaintiff be dismissed from office, arising from its failure to afford natural justice to the plaintiff.

(8) Ordered: that there be a further hearing on the question of what further orders, declarations or other remedies, if any, ought to be granted.

Cases Cited

The following cases are cited in the judgment:

Application by Hon Belden Norman Namah MP in his capacity as Leader of the Opposition (2020) SC1946

Dale Christopher Smith v Minister for Lands (2009) SC973

Demetrio v Independent Police Complaints Commission [2015] EWHC 593

Gabriel Laku v The State [1981] PNGLR 350

GR Logging Ltd v David Dotaona (2018) SC1690

Iambakey Okuk v Gerald Sidney Fallscheer [1980] PNGLR 274

Isaac Lupari v Sir Michael Somare (2008) N3476

Konivaro v Constitutional Office-holders Rights Tribunal, OS (JR) No 901 of 2016, 13.04.18 unreported

Leonard Sabadi v The Police (2002) N2164

Moses Aikaba v Tami [1971-1972] PNGLR 155

Namah v Poole (2016) N6397

Namah v Tribunal (2015) N6121

Namah v Leadership Tribunal (2018) N7351

Philip Kamo v Commissioner of Police (2001) N2084

Re Belden Namah (2018) N7194 (LT) N7351

Saperus Yalibakut v The State[2006] 1PNGLR 357

SC Ref No 1 of 2017, Special Reference by the Ombudsman Commission re Constitution, Section 28(5) and Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645

SC Ref No 2 of 2016, Re Section 169(4)(c) of the Constitution (2016) SC1508

SC Ref No 2 of 2016, Re Section 169(4)(c) of the Constitution (2016) SC1516

SC Ref No 3 of 2005, Re the Public Prosecutor’s Power to Request Chief Justice to Appoint a Leadership Tribunal (2008) SC1011

SC Ref No 7 of 2014 & SC Ref Nos 1 & 2 of 2015 Re the Powers, Functions, Duties & Responsibilities of the Public Prosecutor & Leadership Tribunals (2016) SC1534

South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761

Steven Kongi Dami v The State (2009) N3628

The State v Bafe Quati [1990] PNGLR 57

Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329

Tom Longman Yaul v The State (2005) SC803

JUDICIAL REVIEW

This was an application for judicial review of the...