Pondros Kaluwin and Others v Honourable Christopher Seseve Haiveta and Others

• Jurisdiction: Papua New Guinea
• Judge: Kandakasi DCJ,Geita,Miviri, JJ.
• Judgment Date: 28 April 2023
• Neutral Citation: SC2384
• Counsel: E. Geroro, for the Appellants.,P. Lowing, for the First Respondent.
• Docket Number: SCA 80 OF 2020
• Hearing Date: 14 December 2022,28 April 2023
• Court: Supreme Court

SC2384

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA 80 OF 2020

Pondros Kaluwin, Public Prosecutor

First Appellant

and

The Independent State of Papua New Guinea

Second Appellant

and

Honourable Davis Steven, Attorney General

Third Appellant

and

Honourable Job Pomat, Speaker, National Parliament

Fourth Appellant

v.

Honourable Christopher Seseve Haiveta, Governor, Gulf Province

First Respondent

and

Ombudsman Commission

Second Respondent

and

Sir Gibbs Salika, Chief Justice

Third Respondent

Waigani: Kandakasi DCJ, Geita and Miviri, JJ.

2022: 14^th December

2023: 28^th April

JURISDICTION — Whether National Court has jurisdiction to terminate leadership tribunal proceeding using separate civil proceedings — Appropriateness of — Claim of breach of rights under ss 37(1) (3) and (11) and 41 of the Constitution — Use of s 57 of the Constitution — Appropriateness of — Whether the provisions of ss 37 and 41 apply to leadership tribunal proceedings? — Relevant Supreme Court decisions — National Court obliged follow — Failure to — No specific legislative foundation for — Invoking s.155 (4) of Constitution — Appropriateness of — — Against good order and due administration of justice for civil courts to intervene in leadership tribunal cases — Public interest dictates due process and procedure under the Leadership Code and leadership tribunal proceedings to take their normal course.

Facts

In January 2006, the First Respondent (Leader) was referred to the Public Prosecutor (PP) by the Ombudsman Commission for allegations of misconduct in office in his then position as a Regional Member of the Parliament for the Gulf Province. At the request of the PP, a tribunal was appointed by the then Chief Justice on or about 6^th October 2006. The tribunal comprised of a justice of the National Court who was the chairman, now deceased and two senior magistrates, one of whom is also deceased now. On 20^th February 2007, a reference was presented to the Tribunal by the then PP containing 28 allegations of misconduct in office. A hearing commenced before the Tribunal and the Leader's suspension under section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) took effect from that date. The prosecution completed its case, a no case submission was made by the Leader which submission was rejected by the Tribunal. Thereafter the Leader went into evidence together with another witness. He was then to call 3 more witnesses. But before he could do so, the 2007 National General Elections came up. That caused the Tribunal to adjourn pending conclusion of the elections and return of writs. The Leader failed to be re-elected in that election and the next in 2012. In 2011 the Leader was appointed as the Acting Secretary to the National Executive Council which was a leadership position but was not clear how long was that for. For reasons that are not clear, the PP did not take any step for a tribunal to be reappointed to complete the tribunal process. Then came the 2017 National General Elections which saw the Leader re-elected as the Regional Member of Parliament for the Gulf Province. Following that, the PP requested the current Chief Justice to appoint a leadership tribunal. Before the Chief Justice could appoint a tribunal, the Leader issued civil proceedings in the National claiming breach of his rights under s. 41 and s. 37 (1) (3) and (11) and sought permanent injunctions pursuant to s. 57 (1) and s.155 (4) of the Constitution. That application was upheld, and the leadership tribunal process was terminated purportedly pursuant to s. 41, 57 (1) and 155 (4) of the Constitution. In arriving at that view, the learned trial judge relied on several National Court decisions which included a string of judgments of the learned trial judge himself. The Appellants appealed against that decision claiming the National Court erred in assuming jurisdiction and granting the reliefs sought because the Supreme Court had already interpreted and held that s. 41 does not grant any right that is enforceable under s. 57 (1) of the Constitution and that s. 37 (1) (3) (11) apply only to criminal proceedings and not to administrative proceedings like leadership tribunals. The Leader argued to the contrary and supported the National Court's decision.

Held:

1. Pursuant to s. 18 of the Constitution, only the Supreme Court has the exclusive jurisdiction to interpret provisions of the Constitution except in only two cases namely: (1) the constitutional interpretation question is trivial, vexations or irrelevant; and (2) where the Constitution specifically authorises the National Court, other courts and tribunals to enforce certain parts of the Constitution and to discharge that duty, they necessarily have the power to interpret and apply the relevant and applicable constitutional law provision:

Cited Haiveta v. Wingti & Anor [1994] PNGLR 160; Namah v. Poole (2016) SC1516; Lowa, & Ors v. Akipe & Ors [1991] PNGLR 522; [1992] PNGLR 399 and Raz v. Matane [1985] PNGLR 329.

2. Section 41 of the Constitution does not grant any right that is capable of enforcement under s. 57 (1) of the Constitution.

Approved, adopted, and applied Raz v. Matane [1985] PNGLR 329 (Raz v. Matane) and Premdas v. Independent State of Papua New Guinea [1979] PNGLR 329 (the Premdas case).

3. Section 37 (1) (3) (11) of the Constitution, apply only to criminal proceedings and not administrative proceedings such as Leadership Code breaches and leadership tribunal processes are administrative in nature and not criminal:

Adopted and applied Special Reference by the Ombudsman Commission in the matter of the 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. 5 of 1980, Joseph Auna, Re Leadership Tribunal appointed under The Organic Law on the Duties and Responsibilities of Leadership [1980] PNGLR 500 and SCR No 2 of 1992; Re The Leadership Code [1992] PNGLR 336.

4. There is sufficient process procedure and safeguards within the criminal justice process or the leadership tribunal and other process and as such the civil process in the National Court cannot be used to interfere and intervene in matters that are pending at whatever stage they might be, in the criminal or leadership tribunal and other processes, until those process have been completed and a matter comes before the National Court by way of judicial review or appeal:

Adopted and applied Eremas Wartoto v. The State (2015) SC141 (the Eremas Wartoto case), Somare v. Manek (2011) SC1118, Pato v. Manjin [1999] PNGLR 6, Pius Pundi v. Chris Rupen (2015) SC1430.

5. Section155 (4) of the Constitution has been abused more than its proper use and as the Court has gone on to clarify that, although grants an inherent power to the courts, it is not a grant of jurisdiction to cover all and every other situation and for the creation and grant of new rights. Instead, it is a general grant of power to the Court to develop and grant such remedies as are appropriate for the protection of rights already existing and granted by other law, including the Constitution. Where remedies are already provided for under other law, the provision does not apply. A person seeking to benefit from that provision has an obligation to demonstrate a case of his rights or interest being affected or that he stands to suffer much damage or prejudice and he has no remedy available under any other law:

Adopted and applied William Powi & Ors v. Southern Highlands Provincial Government & Ors (2006) SC844, Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1156 and Barrick (Niugini) Ltd v. Nekitel & Ors (2021) SC2092.

6. Section 57 (1) of the Constitution cannot be invoked to interfere and intervene in criminal and other proceedings that are authorised by law. Instead, any issue of a breach of one's right or freedom must at the first instance be raised in the relevant proceedings, the Court or authority before whom the matter is at:

Approved and applied The State v. Tamate (2021) SC2132, The State v. Kenneth Kunda Siune (2021) SC2070 and Commander of Beon Correctional Institution v. Mal (2022) SC2186

7. Pursuant to Sch. 2.9 (1) of the Constitution all decisions of the Supreme Court are binding on the National Court, other courts, and tribunals and are therefore obliged to follow them. At the same time, it is trite law that the Supreme Court is not bound by its own earlier decisions but in the interest of providing certainty and consistency in the law for the society's guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart from its earlier decisions and as such, departures within a short space of time are undesirable and should not be encouraged. However, departures are permissible only in exceptional circumstances where, earlier decisions clearly misinterpreted, misconceived, mistook or misunderstood the law which requires correction, the law pronounced or stated in the earlier decisions are no longer appropriate and applicable to the current prevailing circumstances and needs of the country and as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision:

Adopted and applied Aihi v Isoaimo (2013) SC1276 at para 27.

8. In this case, the learned trial judge clearly fell into serious and clearly identifiable errors in:

(a) assuming a jurisdiction he did not have under s. 57 (1) and s. 155 (4) of the Constitution, allowing the Leader's claim and granting the reliefs he granted;

(b) choosing to follow National Court decisions, most of which were that of the learned trial judge and not the decisions of this Court for the learned trial judge's decision concerning the provisions of s. 41 of the Constitution. The decisions in Re Ricky Yanepa [1988–89] PNGLR 166; Nowra No 8 Pty Ltd v. Kala Swokin [1993] PNGLR 498; Okona-Meten...