Re Opai Kunangel Amin [1991] PNGLR 1; Supreme Court Reference No 2 of 1982; Re Kunangel; In the Matter of a Reference under s18(2) of the Constitution by and Independent Tribunal appointed pursuant to s27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership; and In the Matter of a reference by the Public Prosecutor pursuant to s27(2) of the Organic Law on the Duties and Responsibilities of Leadership in respect of Opai Kunangel Amin

• Jurisdiction: Papua New Guinea
• Judge: Gajewicz J:
• Judgment Date: 06 August 1982
• Citation: [1991] PNGLR 1
• Docket Number: Supreme Court Reference No 2 of 1982
• Court: Supreme Court
• Year: 1991
• Judgement Number: SC231

Full Title: Supreme Court Reference No 2 of 1982; Re Opai Kunangel Amin [1991] PNGLR 1; Supreme Court Reference No 2 of 1982; Re Kunangel; In the Matter of a Reference under s18(2) of the Constitution by and Independent Tribunal appointed pursuant to s27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership; and In the Matter of a reference by the Public Prosecutor pursuant to s27(2) of the Organic Law on the Duties and Responsibilities of Leadership in respect of Opai Kunangel Amin

Supreme Court: Kapi J, Andrew J, Bredmeyer J, Kaputin J, Gajewicz J

Judgment Delivered: 6 August 1982

1 Constitutional law—Organic laws—tribunal—whether tribunal loses jurisdiction when member of Parliament or Minister under investigation resigns from Parliament

2 Constitutional law—reference by Leadership Tribunal under Constitution s18(2) and by Public Prosecutor under Organic Law on the Duties and Responsibilities of Leadership s27(2)

3 CONSTITUTIONAL LAW—Constitution—Leadership Code—Tribunal appointed to hear charges of breaches of Organic Law—Member of Parliament—Automatic suspension from "duty"—Whether resignation from office effective—Jurisdiction of Tribunal ceases on resignation—Constitution, s104(2)(c)—Organic Law on the Duties and Responsibilities of Leadership, s28.

4 PARLIAMENT—Member of Parliament—Resignation from office—How effected—No requirement for Speaker to accept—"Duties" and "office" distinguished—Effect of resignation on suspension under Leadership Code—Constitution, s104(2)(c)—Organic Law on the Duties and Responsibilities of Leadership, s28.

5 PRECEDENT—Supreme Court decisions—Rearguing—Five judge decision—Not to be questioned in short term unless clearly wrong.

The Constitution of the Independent State of Papua New Guinea, s28(1)(g), provides:

"(1) For the purposes of this Division, an Organic Law—

. . .

(g) shall establish independent tribunals that—

(i) shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and

(ii) are required, subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and . . . "

The Organic Law on the Duties and Responsibilities of Leadership, s28, provides that when a matter is referred to such a tribunal the leader to whom the Organic Law applies, shall be "suspended from duty".

S104(2)(c) of the Constitution provides:

"(2) The seat of a member of the Parliament becomes vacant—

. . .

(c) if he resigned his seat by notice in writing to the Speaker, or in the case of the Speaker to the Clerk of the Parliament; or . . . "

Held:

(1) (Kaputin J dissenting) A Member of Parliament may "resign his seat" under s104(2)(c) of the Constitution whilst under suspension from duty under s28 of the Organic Law on the Duties and Responsibilities of Leadership.

(2) The Member of Parliament ceases to be a member upon tendering his resignation independently of the Speaker's acceptance thereof.

(3) (Kaputin J dissenting) A Tribunal appointed under s27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership ceases to have jurisdiction to hear and determine a reference in respect of a Member of Parliament or Minister of State who, whilst under suspension, resigns his seat under s104(2)(c) of the Constitution.

SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500, followed and applied.

(Per Kapi DCJ with whom Andrew J, Bredmeyer J and Gajewicz J agreed) The meaning of the word "duty" in s28 of the Organic Law on the Duties and Responsibilities of Leadership is narrower than the meaning of the word "office" as used in s104 of the Constitution.

Discussion of the distinction between suspension from "duty" and occupation of an "office".

(By the Court) As a matter of practice decisions of the Supreme Court (particularly a five member court) should not be questioned before another Court composed of different judges within a short period of time. Where, however the principles of law enunciated are clearly wrong, the Court is not bound by its own decisions.

Bank of England v Vagliano Bros [1891] AC 107, Bird v British Celanese Ltd [1945] KB 336, Browne v Commissioner for Railways (1935) 36 SR (NSW) 21, Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1, Cooper v Wilson [1937] 2 KB 309, Cory Lighterage v Transport and General Workers' Union [1973] 1 WLR 792; [1973] 2 All ER 558, Dunn v R [1896] 1 QB 116, Edwards (Inspector of Taxes) v Clinch [1980] 3 WLR 521; [1980] 3 All ER 278, Hanley v Pease & Partners Ltd [1915] 1 KB 698, Hunkin v Siebert (1934) 51 CLR 538, Inland Revenue Commissioner v Hambrook [1956] 2 QB 641, SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500, Kilgour v Cummings [1941] NZLR 972, Marks v Commonwealth (1964) 111 CLR 549, Marshall v English Electric Co Ltd [1945] 1 All ER 653, Morris v M'Cullock (1763) Amb 432; 27 ER 289, Parker v Lord Clive (1769) 4 Burr 2419; 98 ER 267, The State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491, Vertue v Lord Clive (1769) 4 Burr 2472; 98 ER 296, Waleford Borough case (1870) 2 O'M & H 24 and Wallwork v Fielding [1922] 2 KB 66 referred to

Constitutional Reference

This was a reference to the Supreme Court pursuant to s18(2) of the Constitution, which provides that where any question relating to the interpretation or application of any constitutional law arises in any court or tribunal other than the Supreme Court, the court or tribunal may refer the matter to the Supreme Court. The questions which were referred by a tribunal established pursuant to s27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership are set out at the beginning of the reasons for judgment of Kapi DCJ.

___________________________

Kapi DCJ:

This is a reference under s18 of the Constitution. The matter has been referred to the Court by a tribunal appointed under the provisions of the Organic Law on the Duties and Responsibilities of Leadership. I shall simply refer to this as the Organic Law. The tribunal was established to hear a reference made by the Public Prosecutor on charges of 11 counts of breaches of the provisions of the Organic Law. The tribunal referred the following questions to the Supreme Court for its decision:

1. Does the tribunal have jurisdiction to hear and determine a reference in respect of a Member of Parliament or Minister of State who whilst under suspension following the application of s28 of the Organic Law on the Duties and Responsibilities of Leadership tenders his resignation to the Speaker of the National Parliament under s104(2)(c) of the Constitution?

2. Does such Member cease to be a leader on tendering his resignation in writing to the Speaker under such section independently of the Speaker's acceptance thereof?

At the hearing, Mr Roddenby, the counsel appearing for the Public Prosecutor, made an application to amend the questions in the reference to add a further question as follows:

"Does a Leadership Tribunal have jurisdiction to investigate a reference in respect of a Member of Parliament or Minister of State if that Member or Minister tenders his resignation to the Speaker after the Ombudsman Commission has referred allegations of misconduct in office to the Public Prosecutor under s29 of the Constitution?"

Mr Kara who appeared for Mr Kunangel in this reference objected to this application.

I would not grant the application on the basis that this particular question was not raised before the tribunal which referred the questions. Questions under s18(2) of the Constitution are referred by a court or tribunal, and all questions to be referred under this provision must be brought before such tribunal. It is the tribunal which determines or sets forth the questions to be referred and in addition such tribunal may have to make...