N2231

PAPUA NEW GUINEA

[In the National Court of Justice]

NC Application 509 of 2002

BETWEEN:

ENFORCEMENT PURSUANT TO
CONSTITUTION SECTION 57

AND:

APPLICATION BY ANDERSON AGIRU

WAIGANI: GAVARA – NANU, J
2002: 11th & 12th June

CONSTITUTION - Whether right of review of conviction and sentence for ‘an offence’ under s.37 (15) is absolute – whether ‘offence’ under s.37 (15) applies to offences under the Leadership Code.

CONSTITUTION - Enforcement of rights under s.57 – circumstances under which such rights may be enforced.

Cases Cited:
Peter Peipul -v- Justice Sheehan & Ors SCM 2 of 2002 – 24th May, 2002.
Avia Aihi -v- The State [1981] PNGLR 81
S.C.R No. 3 of 1982 [1982] PNGLR 405
James Eki Mopio [1981] PNGLR 416

Counsel:
G.J. Sherppard for the Applicant
Dr. Nonggorr & T.Suwae for the Respondent

GAVARA-NANU J: The Applicant comes to this Court by invoking s. 57 of the Constitution for the protection and enforcement of his rights under ss. 37 (15) and 50 (1) of the Constitution. The right which the applicant wants enforced under s. 37 (15) is the right to have his conviction and sentence or penalties recommended and imposed by the Leadership Tribunal on 18th January, 2002, reviewed by a higher court or tribunal and the right he wants enforced under s. 50 (1) is the right to contest the coming National Elections.

The Applicant also seeks a declaration that Order 16 r 3 of the National Court Rules is unconstitutional in so far as that Rule requires leave of the Court to apply for judicial review. The Applicant says he has the absolute right under s.37 (15) of the Constitution to have his conviction and penalties imposed by the Leadership Tribunal reviewed. He says Order 16 r 3 prohibits that right.

To fully appreciate the issues raised by the Applicant, it is necessary to refer to the background facts of this application. 

Factual Background

On 16th January, 2002, the Leadership Tribunal found the Applicant guilty in respect of 11 allegations of misconduct in Office. On 17th January, 2002, the Tribunal heard submissions on penalty and on 18th January, 2002, the Tribunal recommended that the Applicant be dismissed from Office and be fined K 7,000.00.

On 20th January, 2002, the acting Governor-General acting in accordance with the advice of the Tribunal and in pursuance of s.28 (1A) (2) of the Constitution implemented the recommendation made by the Tribunal by dismissing the Applicant from Office of a Member of National Parliament and imposing a fine of K 7,000.00.

On 22nd January, 2002, the Applicant filed a Originate Summons in the National Court seeking leave for judicial review of the decision of the Leadership Tribunal under Order 16 r 3 of the National Court Rules.

The application for leave to apply for judicial review was heard by Mr Justice Sheehan on 14th March, 2002, and his Honour refused to grant leave.

On 25th March, 2002, the Applicant filed an application for two distinct remedies against the decision of the National Court given on 14th March, 2002. First was for judicial review under s. 155 (2) (b) of the Constitution of the refusal by the National Court to grant him leave to apply for judicial review and second, the Applicant sought orders under s. 155 (4) of the Constitution.

On 05th April, 2002, the Applicant filed an application in the Supreme Court for him to be allowed to nominate for the National Elections and on 08th April, 2002, the Applicant’s application was heard by the Chief Justice in which the application was granted and the Applicant was allowed to nominate for the National Elections, but pending the outcome of his application for review under s. 155 (2) (b) of the Constitution.

On 29th April, 2002, the application under s. 155 (2) (b) and s. 155 (4) was heard by the Supreme Court, during which the Court sought clarification on the nature of the application and dealt with preliminary issues. During the preliminary hearing the Applicant’s lawyers amended the Applicant’s application and the application was confined to s. 155 (2) (b) of the Constitution. The application under s. 155 (2) (b) was heard by the Supreme Court on 07th May, 2002, and on 24th May, 2002, the Supreme Court handed down its decision refusing the application.

The decision by His Honour, Mr Justice Sheehan on 14th March, 2002, to refuse the Applicant’s application for leave to apply to judicial review was on the basis that the Applicant failed to establish an arguable case for substantial review of the Tribunal’s findings.

The Supreme Court in its decision on 24th May, 2002, to refuse the Applicant’s application held that the application was incompetent and was a clear abuse of s. 155 (2) (b) of the Constitution in that the Applicant had failed to lodge an appeal as required under s.17 of the Supreme Court Act and Order 10 of the Supreme Court Rules against the decision of the National Court given on 14th March, 2002.

During the substantive hearing of the application under s.155 (2) (b), the Applicant through his lawyers confirmed that the decision not to appeal the decision of the National Court but to apply for judicial review was a deliberate decision made for two reasons, first was so that the Applicant could obtain interim orders to allow him to nominate for the coming National Elections and secondly the review process provided under s.155 (2) (b) was the quicker way to determine all the issues including the substantive review of the decision of the Leadership Tribunal.

The ‘Application’ and the law

The Applicant has framed or stated his case in the following manner:-

1.	Under the provisions of s. 37 (15) of the Constitution, he is entitled to have his conviction and sentence or penalties recommended and imposed by the Leadership Tribunal reviewed by a higher court or tribunal as of right. Therefore the requirement under Order 16 r 3 of the National Court Rules requiring the Applicant to obtain leave to seek what is constitutionally guaranteed right is contrary to s.37 (15) of the Constitution, the Applicant should thus be granted review under s. 37 (15). For the same reason, his Honour Mr Justice Sheehan ought to have permitted the Applicant to have his conviction and sentence reviewed by a higher court or tribunal.

2.	The Applicant seeks a declaration that the requirement for leave to apply for judicial review of his convictions and sentence by the Leadership Tribunal under Order 16 r 3 of the National Court Rules is unconstitutional. This challenges the constitutionality of Order 16 r 3.

3.	To stay the dismissal of the Applicant pending the hearing and the determination of his application for review and that he be permitted to contest the National Elections for the seat of Southern Highlands Province

Section 37 (15) is in following terms:– 

"Every person convicted of an offence is entitled to have his conviction and sentence reviewed by a higher court or tribunal according to law".

The Applicant submitted that under the provisions of s. 37 (15), the Applicant is entitled to have his conviction and sentence reviewed by a higher court or tribunal because the offences for which he was convicted are: -

(a)	criminal in nature, or 

(b)	alternatively, the protection of s.37 (15) extends in any case to Constitutional offences for example under s. 27 of the Constitution.

The Applicant also submitted that Order 16, r 3 of the National Court Rules is prohibitory in nature and not regulatory, and that the refusal by the National Court to have his sentence and conviction reviewed was a breach of his Constitutional right to review under s. 37 (15). 

It was also submitted that because this application involves interpretation of certain Constitutional provisions, in particular s.37 (15), it maybe appropriate for this Court to refer the issues raised, to the Supreme Court for its interpretation, and that interim orders be given to stay the penalties given by the Leadership Tribunal and allow the Applicant to stand for the coming National Elections. 

Dr Nonggorr for the State and the Electoral Commission on the other hand submitted that no issues arise under s. 37 (15) because, the ‘offence’ referred to in that provision refers to criminal offences and not offences under the Leadership Code. He submitted that the Supreme Court in the recent case of Peter Peipul -v- Justice Sheehan and Ors SCM 2/02, held that s. 37 (15) does not apply to leadership offences. I am therefore bound by that decision. He further submitted that this application is an abuse of process because the Applicant has failed to invoke the provisions in the Supreme Court relating to appeals which he should have used to appeal against the decision by National Court refusing him leave to apply for judicial review. Dr Nonggorr also submitted that a reference to the Supreme Court is unnecessary because the Applicant has already been dismissed and there is nothing to stay and review.

Ms Suwae from the Public Prosecutor agreed with the submissions made by Dr Nonggorr.

I have to determine two issues : -

1.	Whether the offences under the Leadership Code for which the Applicant was convicted and penalised by the Leadership Tribunal are criminal in nature, and

2.	Whether, even if the offences for which he has been convicted are not criminal in nature, s. 37 (15) of the Constitution still covers such offences. 

As to the first issue, I start by citing the observations made by Kapi DCJ, in the case of Peter Peipul -v- Honourable Justice Sheehan and Ors (supra), where his Honour at page 50 of the Supreme Court judgement said:– 

"The final ground of appeal on penalty relied upon by the counsel for the appellant alleges that the trial judge erred in law in holding that the argument under s. 37 (15) of the constitution is not relevant. There is no merit in this ground. Section 37 (15) is applicable to criminal offences and has no application to leadership code offences. Even if this section was applicable ( which is not) any such penalty would be reviewed in accordance with the law. I have just considered the applicable principles of law and find no error".

Dr Nonggorr relied on this passage and submitted that because this was a Supreme Court decision I am bound by the decision and cannot go outside of what the Supreme Court decided. The counsel for the Applicant on the other hand submitted that it is not binding on me, because the comments by Kapi DCJ, were an obiter dictum.

I am of the opinion that the observations were not obiter dictum because they relate to the final ground of appeal or review, it was therefore a substantive issue which the Supreme Court had to consider and determine. The observations therefore have a binding effect on this Court.

In any case, the observations by Kapi, DCJ was an affirmation or reiteration of the view long held by the Courts of s.37 (15) of the Constitution, see for instance Avia Aihi -v- The State [1981] PNGLR 81 at page 90, see also S.C.R. No. 3 of 1982 [1982] PNGLR 405 at page 406.

When considering s. 37 of the Constitution in its totality, one can see that it refers to offences which are criminal in nature or criminal offences. This is a proper approach in determining the provisions of s. 37 (15), which has to be interpreted fairly and liberally as required under Schedule 1.5 of the Constitution, which reads: -

"(1) Each constitutional Law is intended to be read as a whole, and

(2) All provisions of and all words, expressions and propositions in a Constitutional Law shall be given their fair and liberal meaning".

The Final Report of the Constitutional Planning Committee at page 5/1/10 at paragraph 48 which deals with ‘protection of the law’ also refers to, those convicted of criminal offences. Section 37 (15) is rooted on this paragraph.

Section 37 (15) in my opinion is very clear in its terms, when it refers to conviction and sentence, it must necessarily mean criminal offence or conviction and the sentence imposed therefor.

The issues raised before this Court arise out of the interpretation of the word ‘offence’ in s. 37 (15) of the Constitution. The Applicant has argued that the word covers offences under the Leadership Code and therefore, the Organic Law on Duties and Responsibilities of Leadership (OLDRL).

The offences under the Leadership Code and the OLDRL are not the same as the offence or offences referred to in s. 37 (15) of the Constitution.

The offences under the Leadership Code and the OLDRL relate to misconduct in office, this is clear from the relevant provisions of the OLDRL. In this regard, s. 27 of the Constitution does not create offences, it merely spells out the responsibilities of leaders. Section 27 of the Constitution is under Division 2 which deals with Leadership Code. The Division covers ss. 26 to 31. This Division has to be read together with PART III of the OLDRL.

When s. 27 of the Constitution is read in that way, it becomes clear that the word ‘offence’ used in the constitutional provisions refer to misconduct in office or conducts of leaders which are in breach of the responsibilities of a leader in Office.

This is reinforced by s. 28 (5) of the Constitution which provides that the proceedings before a Leadership Tribunal are not judicial proceedings but are subject to the principles of natural justice and are no bar to any other proceedings which in my opinion includes criminal proceedings under the Criminal Code Act, Chapter No. 262. See James Eki Mopio [1981] PNGLR 416 at page 419, where the Supreme Court said:-

"The Leadership Tribunal is charged with inquiring into allegations of misconduct in office by those who are subject to Leadership Code, which is an offence both under the Constitution and the Organic Law on Duties and Responsibilities of Leadership…… Misconduct in office is not itself a criminal offence but if found carries adverse consequences of the most serious kind". (my underlining).

This point was in my respectful opinion made by the Supreme Court in the recent case of Peter Peipul -v- Justice Sheehan and Ors – (supra), see comments by his Honour the Chief Justice at page 23 and by his Honour the Deputy Chief Justice at page 36 of the judgment.

As to the second issue or question I have to determine, I say this, the right of review under s. 37 (15) is not absolute because it is regulated by other laws. This is clear from the phrase according to law in that provision. It has been held in this jurisdiction that ‘laws’ referred to in s.37 (15) relate to all the laws referred to by s. 9 of the Constitution. Such laws include the processes provided under the National Court Rules, including Order 16, r 3. Order 16 r 3 of the National Court Rules regulates the review process which a person aggrieved by a decision of a tribunal may invoke. The ‘law’ also relates to the appeal processes under the Supreme Court Act, in particular s. 17 and Order 10 of the Supreme Court Rules which provides for the appeal process against orders made under Order 16 and 17 of the National Court Rules which are relevant in this case. Order 16 r 3 therefore does not prohibit the right of review, it regulates the review process.

The review process under Order 16 r 3 of the National Court Rules cannot be equated with the process invoked under s.155 (2) (b) of the Constitution. They are two separate processes which are invoked and apply separately.

The Applicant’s case is unfortunate in that it was by his deliberate decision that he chose not to avail himself to the appeal process provided for under the Supreme Court Act and the Supreme Court Rules. I think that was a tragic error made by the Applicant. I note that the decision by the National Court dismissing his application for leave to apply for review was made in March, 2002, in my opinion, that was ample time for him to lodge an appeal against the decision. 

As to the enforcement of rights under s.57 of the Constitution, in my opinion, that provision can only be invoked when an application is made according to law. See Avia Aihi’s (supra), at page 106, where the Supreme Court said, the right under s.57 of the Constitution could only be enforced within the appeal period allowed by the statute.

The other matter which I think is worth commenting on is that the Applicant had invoked Order 16, r 3 to review the decision of the Leadership Tribunal therefore the Applicant had already subjected himself to the jurisdiction of the Court and its powers under that Rule. It is therefore an abuse of process to now question the validity of the law which he had invoked in the first place. The tragic error made by the Applicant in not invoking the appeal process was acknowledged by his lawyer in this hearing. It was also unfortunate that the Applicant invoked the discretionary review powers of the Supreme Court under s. 155 (2) (b) when the appeal process was open for him to use, that resulted in the Supreme Court dismissing his application for abuse of process. 

For these reasons, it is my unfortunate task that I must dismiss the application by the Applicant.

In the light of the decision I have made, I do not consider it necessary to refer the questions raised regarding s. 37 (15) of the Constitution to the Supreme Court. The Applicant of course has the right to have my decision reviewed in the Supreme Court through normal process, if he so desires.

The Applicant will pay the Respondents’ costs of the application.
__________________________________________________________________________
Lawyer for the Applicant		-	Maladina Lawyers
Lawyer for the Respondent		-	Nonggorr & Associates Lawyers
-	The Public Prosecutor