SC1118

PAPUA NEW GUINEA
IN THE SUPREME COURT OF JUSTICE

SCOS NO 02 OF 2011

BETWEEN:

GRAND CHIEF SIR MICHAEL THOMAS SOMARE
Applicant

AND:

CHRONOX MANEK, JOHN NERO and PHEOBE SANGETARI as OMBUDSMAN COMMISSIONERS and the OMBUDSMAN COMMISSION
Respondent

Waigani: Salika DCJ, Kirriwom and Kandakasi, JJ.
2011: 28th April
2011: 1st July

CONSTITUTIONAL LAW – Original Jurisdiction of the Supreme Court under s. 18 (1) of the Constitution – Exclusive jurisdiction on question of interpretation and application of a constitutional law – Subject to the Constitution - Two context giving rise to such question – Factual and statutory - Where factual - Facts must be first established – Authorised persons to bring such questions – Authorised persons – Section 19(3) and s.18(2) of Constitution – Constitutional basis for judgments authorizing others not clear – National Court specifically authorised to enforce the Constitution under s. 22 and s. 23 of the Constitution - Court of first instance – Application of constitutional law jurisdiction vested in National Court.

CONSTITUTIONAL LAW - Effect and meaning of s. 28 (1) of the OLDRL - A leader who is referred to an appropriate tribunal is automatically suspended from duty form the date of referral to a leadership tribunal – Hon Patrick Pruaitch, MP v. Chronox Manek (2010) SC1052 affirmed in part - Hon Patrick Pruaitch, MP v. Chronox Manek (2010) SC1093 not followed.

CONSTITUTIONAL LAW – Section 217 (6) of the Constitution – Ombudsman Commission decisions immune from any challenge except by judicial review only on grounds of excess of jurisdiction – Correct forum for judicial review within the parameters of s. 217 (6) – National Court by reasons of s. 155 (2) and (3) and s. 22 and 23 of the Constitution – Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1093 not followed.

PRACTICE & PROCEDURE – Original jurisdiction of the Supreme Court - Case brought under s. 18(1) of the Constitution – Plaintiff must plead with particularity – Pleadings must specify question (s) of interpretation and application of a constitutional law and the factual circumstances giving rise to the question(s) - Failure may result in denial of claim - Where question is dependent on facts, the facts must be first established in the National Court or a lower tribunal – Premature to bring a question of interpretation and application of a constitutional law to the Supreme Court without establishing facts.

PRACTICE & PROCEDURE – Abuse of Court process – Correct process and forum to challenge decisions of the Ombudsman Commission – Judicial review on grounds of excess of jurisdiction pursuant to s. 217 (6) of the Constitution – Proceedings commenced in any other way is unauthorized and amounts to abuse of process of the Court - Hon Patrick Pruaitch, MP v. Chronox Manek (2010) SC1093 not followed.

PRACTICE & PROCEDURE – Applications for interim injunctions - Application seeking to injuct Ombudsman's investigatory functions under the Constitution and other legally authorised investigations such as police investigations – Nature of such process - Preliminary only with no final determinations of one's rights or interest – Final decisions at leadership tribunal for any leadership breach and the Court in respect of criminal cases and police investigations –Independence of the Ombudsman and other independent investigating authorities such as the Police considered – Against good order, administration and good governance for superior courts to intervene and prevent such process – Application for such reliefs amounts to an abuse of the process of the Court – All such applications should be declined without exception.

Papua New Guinean Cases Cited:

William Powi v Southern Highlands Provincial Government (2006) SC844
SCR No. 3 of 2005: Reference by The Ombudsman Commission of Papua New Guinea (2008) SC1011.
The National Executive Council, the Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea [1993] PNGLR 264 
Anderson Agiru v. Electoral Commission and The State (2002) SC687
Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited (2007) N3144
Telikom PNG limited v. The Independent Consumer and Competition Commission and Digicel (PNG) Limited (2008) SC906.
Hon. Patrick Pruaitch MP v. Chronox Manek, John Nero & Phoebe Sengatari as Ombudsman Commission & Ors (2010) SC1093
NTN v. Board of the Post and Telecommunications Corp [1987] PNGLR 70
Ila Geno & Others v The Independent State of Papua New Guinea [1993] PNGLR 22
Re Raho Hitolo, Member of the Ombudsman Commission (2004) N2745.
Rimbink Pato v. Anthony Manjin [1999] PNGLR 6
Simon Ketan v. Lawyers Statutory Committee & Anor (2001) N2290
Pius Nui v. Tanda (2004) N2765
Bank of Papua New Guinea and Wilson Kamit v. Marshall Cooke QC & Ors (2003) N2369
Bernard Hagoria v. Ombudsman Commission (2003) N2400
Dan Kakaraya v. Ombudsman Commission (2003) N2478 
Tasman Australia Airlines Pty Ltd v. Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea (2004) N2711
Grand Chief Sir Michael Somare v. Ila Geno (2008) N3406.
Zachary Gelu v. Sir Michael Somare MP (2008) N3526
Tkatchenko v. Dessy Magaru (2000) N1956
Jimmy Mostata Maladina v. Posain Poloh (2004) N2568
Sakawar Kasieng v. Andrew Baigry (2004) N2562
State v. Tanedo [1975] PNGLR 395.
Diro v. Ombudsman Commission of Papua New Guinea (1991) N1385
SCR No 2 of 1982; Re Opai Kunangel Amin [1991] PNGLR 1
Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1052
Hon Patrick Pruaitch, MP v Chronox Manek (2010) SC1093
Raz v. Matane [1985] PNGLR 329
Patterson Lowa, Minister for Minerals and Energy and Others v. Wapula Akipe and Others [1991] PNGLR 265.
The Central Bank of PNG v. Gabriel Tugiau (2009) SC1013
Papua New Guinea Banking Corporation v. Jeff Tole (2002) SC694
Kaseng v. Namaliu [1995] PNGLR 481
Momis and Others v. NEC and Others (1999) SC626
MRDC v. Ombudsman Commission (2008) SC931
Steven Charles Pickthall v. Lae Plumbing Pty Ltd [1994] PNGLR 363
Madiu Andrew v. Mineral Resources Development Company Ltd, & Ors (2004) N2601
SC Review No. 5 of 1988:Kasap and Yama [1988-89] PNGLR 197
Malipu Balakau v. Paul Torato [1983] PNGLR 242
Kekedo v. Burns Philip & Ors [1988-89] PNGLR 122
Chan v. Ombudsman Commission [1998] PNGLR 171
 Ombudsman Commission v. Yama (2004) SC747
Ombudsman Commission of Papua New Guinea v. Dennis Donohoe [1985] PNGLR 348
Honourable Patrick Pruaitch MP v. Chronox Manek & Ors (2009) N3903
Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1) [1988] PNGLR 20
John Mua Nilkare v.Ombudsman Commission [1999] PNGLR 333
Julius Chan v. Makena Geno & Anor [1988] PNGLR 43
Gerard Sigulogo v. Leadership Tribunal (1990) N829
 
Overseas Cases Cited:

Ex parte Cousens; Re Blacket and Anor (1947) 47 SR (NSW) 145
Moran v. Lloyds (1981) 1 Lloyds Reports 423
Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd [1982] AC 617

Counsel

Mr.V. Narokobi, for the Applicant/Respondent
Mr. I Molly and Mr. K. Kua, for the Respondent/Applicant 

01st July, 2011

1. BY THE COURT: Introduction: Grand Chief, Sir Michael Thomas Somare (Sir Michael) filed these proceedings seeking to invoke this Court's original jurisdiction on a question of interpretation and application of a constitutional law. 

2. By application filed on 05th March 2011, the Defendant/Applicant (the Ombudsman) is applying to dismiss these proceedings on grounds of abuse of the process of the Court in that:

(1)	The issues raised here were raised or should have been raised in earlier concluded proceedings;

(2)	These issues should have been raised in the leadership tribunal which has since concluded its hearing and determinations;

(3)	No question of interpretation and application of a constitutional law within the meaning of s. 18(1) of the Constitution arises;

(4)	The issues raised here could be sufficiently dealt with by judicial review under O.16 r. 1 of the National Court Rules 1984, (NCR);

(5)	These proceedings serve no utility since the process of referral of a leader to the Public Prosecutor (PP) and the Chief Justice for the appointment of a leadership tribunal and such a tribunal hearing and determining charges of breaches of certain provisions of the Organic Law on Duties Responsibilities of Leadership (OLDRL) has been concluded with no appeal or review being filed and pursed. 

3. On the other hand, Sir Michael through learned counsel argues that, the questions he is raising in these proceedings are purely constitutional questions which fall within the original and exclusive jurisdiction of the Supreme Court under s. 18 of the Constitution. Hence, it is argued for Sir Michael that, none of the earlier proceedings could have sufficiently dealt with the questions either by a judicial review under O.16 of the NCR or in any other way before the National Court originally and any appeal or review therefrom.

Issues before the Court

4. From the arguments of the parties, the issues before us are these:

(a)	Are these proceedings a duplication of previous proceedings or raise issues that should have been raised in proceedings that are now concluded?

(b)	Is Sir Michael effectively raising issues that should be raised in an appeal or review against the decision of the leadership tribunal;

(c)	If the answer to question (b) is in the affirmative, is Sir Michael at any liberty to raise the issues or questions without exhausting his right of appeal or review?

(d)	Do these proceedings raise any question of interpretation and application of a constitutional law within the meaning of s. 18 of the Constitution?

(e)	Could the issues raised here be adequately dealt with by judicial review under O. 16 of the NCR?

5.	Questions (a) to (c) and (e) can be dealt with together in the context of the relevant background facts and steps parties have taken in relation to those issues and the relevant law, in relation to leadership duties and responsibilities and accountability. We will deal with those first. We will then turn to a consideration and determination of the remaining question, of interpretation and application of a constitutional law under issue (d).

Issues (a) to (c) and (e)

(1) Relevant Background and Facts

6.	Turning then to the relevant facts and or background, we note that on 5th May 2008, Sir Michael filed OS No 246 of 2008, and sought interim injunctive orders to prevent the Ombudsman from referring him to the PP for prosecution for possible breaches of the OLDRL as well as a summons for the Ombudsman to produce documents relating to his referral. Both of these applications were refused on 16th and 24th June 2008 on the basis that there were no serious issues to be tried. Sir Michael filed appeals SCA 50 and 51 of 2008 against the decisions.

7.	Meanwhile, on June 26th, 2008 the Ombudsman referred Sir Michael to the PP, pursuant to its powers under Section 27(4) of the OLDRL. On the same day, Sir Michael filed for a stay of the decision of the National Court pending a hearing of his appeal against refusal of his application for an interim injunction. Subsequently, on June 27th, 2008 Sir Michael withdrew his appeals, SCA No 50 and SCA No 51 on July 4th, 2008 because there was no utility in pursuing them in the light of his referral to the PP.

8.	Also, on July 4th, 2008 Sir Michael filed an application in the National Court seeking leave to amend OS 246 of 2008 to join the PP as a party and then restrain him from requesting the Chief Justice to appoint a leadership tribunal to hear charges of leadership breaches. On July 12th, 2008 the Court granted only the application for leave to amend his OS 246 of 2008.

9.	Then on 3rd October, 2008, Sir Michael filed SCR No 9 of 2008 raising the same issues as in these proceedings. In the light of those proceedings the National Court on 27th October 2008, stayed with the consent of the parties OS No 246 of 2008 pending decision in SCR No 9 of 2008. Almost two months later, the then Acting PP, on 13th December 2010, requested the Chief Justice, to appoint a leadership tribunal. Around this time, the Supreme Court stayed SCR No 9 of 2008 pending a decision in another Supreme Court Reference, SCR No 7 of 2008: Reference by Ken Noare Mondiai and Others raising issues of locus standi of individuals to bring constitutional references under s. 18 (1) of the Constitution.

10.	Eventually on 17th December 2010, the Supreme Court handed down its decision in SCR No 7 of 2008, saying an individual is not entitled to bring a Supreme Court reference but could file an originating process raising a question of interpretation and application of a constitutional law over which the Supreme Court has the original and exclusive jurisdiction. Thereafter on 21st February 2011, the Chief Justice appointed a leadership tribunal consisting of three overseas retired judges.

11.	Shortly after the appointment of the tribunal, Sir Michael on 5th March, 2011 filed SCOS 02 of 2011. Then two days later on 7th March 2011, he withdrew SCR No 9 of 2008. Not long thereafter on March 11th 2011, the Ombudsman filed the application now before us seeking to dismiss the proceedings for abuse of the process of the Court.

12.	Whilst these proceedings were pending, the leadership tribunal on March 18th, 2011 found Sir Michael guilty of 13 out of a total of 25 allegations of misconduct in office or breaches of leadership. That was after the tribunal considered the question of Sir Michael's suspension. Then on April 4th, 2011 the leadership tribunal decided by a majority decision to suspend Sir Michael for two (2) weeks commencing 4 April 2011 as a penalty for the leadership breaches he had been found guilty of.

(2) Inherent Power to Prevent Abuse of the Court's Process
(a) Discussion on the Law

13.	Turning now to the relevant principles of law on abuse of process, we first note that, there is no dispute that this Court has an inherent power to intervene at any stage of any proceedings to prevent any abuse of its process. Section 155(4) of the Constitution has been cited but that provision comes into operation only in cases where one's legal right or interest is infringed and there is no remedy available. The latest Supreme Court decision in William Powi v. Southern Highlands Provincial Government, made this position clear.

14.	In the present case, there is no vacuum. It is trite law that, the Court's power to deal with any possible abuse of its process is inherent in the powers the Court has. The law in that regard is well settled. The five member Supreme Court decision in The National Executive Council, the Attorney-General and Luke Lucas v. Public Employees Association of Papua New Guinea, defined what could amount to an abuse of the processes of the Court in the context of O. 16 r. 2 of the NCR in the following terms:

"An abuse of the process of the court may arise where in an application for a remedy under O 16 r (1) a party can also obtain a declaration or injunction but does not do so and subsequently applies to obtain such an order by ... writ or originating summons in a separate proceeding. That would be an attempt to avoid the requirements under O 16 as well as constitute multiplicity of proceedings. It is not wise to indicate the circumstances that may amount to abuse of the process of the court. This can be developed on a case by case basis."

15.	 Since then, many cases have adopted and applied these principles, which decisions make it clear that, the Court has an inherent power to protect its processes from being abused. The Supreme Court in Anderson Agiru v. Electoral Commission and The State summarized the principles that are to be applied in this way:

"Those principles in essence are that, the court's inherent power is its authority to do all things that are necessary for the proper administration of justice. Such inherent power consists of all powers reasonably required to enable the court to perform efficiently its judicial functions and to protect its dignity and integrity. Essential to these inherent powers is the court's duty to protect itself by ensuring that vexatious litigants do not abuse the court's process by instituting frivolous or vexatious suits. It behoves litigants therefore to carefully choose their causes of action before they commence proceedings in this Court purporting to enforce their rights. The court should summarily dismiss proceedings it considers frivolous, vexatious or is an abuse of process." 

16.	Stating what happened in the Agiru case might make the point clearer. There, Mr. Agiru was then a former Member of Parliament. He was dismissed from office for misconduct in office. He applied for a judicial review of the decision of a leadership tribunal which led to his dismissal but the National Court declined his application. He unsuccessfully sought leave of the Supreme Court to appeal against the refusal of leave. Thereafter, Mr. Agiru, went back to the Supreme Court in separate proceedings seeking to enforce his basic human rights which he claimed were breached by the leadership tribunal. The Supreme Court found this amounting to an abuse of the Court's processes and dismissed them. In so doing the Court said:

"The court must ensure that a multiplicity of proceedings is not commenced by unsuccessful litigants. That is that a litigant having selected one mode of proceeding and having failed to obtain a remedy, cannot generally be entitled to then institute an alternative proceeding seeking the same remedy that was denied in the earlier proceeding."
 (Emphasis supplied)

17.	As was observed by Kandakasi J in Telikom PNG Limited v. Independent Consumer and Competition Commission and Digicel (PNG) Limited and endorsed by the Supreme Court in Telikom PNG limited v. The Independent Consumer and Competition Commission and Digicel (PNG) Limited the Court has that inherent power to:

•	safe guard against an abuse of their processes;

•	avoid dividing or dealing with each cause of action and reliefs on a piece meal basis to avoid multiplicity of proceedings and increased costs to parties and taxpayers who fund the Courts;

•	avoid the unnecessary taking away of the Court's limited time;

•	ensure that no party goes to the Court more than once over the same cause either after having failed or succeeded in an earlier action or at the same time thereby ensuring that there is only one action for each cause of action;

18.	Expressed legislative provisions such as O.13, r. 16 (1) (a) of the Supreme Court Rules as amended, strengthens this inherent power in the Courts. 

19.	Despite this clear legal position, we note that the Supreme Court in its recent decision in Hon. Patrick Pruaitch MP v. Chronox Manek, John Nero & Phoebe Sengatari as Ombudsman Commission & Ors (2010) SC1093 ( Sakora, Lenalia & Manhu JJ.) (Pruaitch Case No. 2) came to a different conclusion. There, Hon. Pruaitch filed for judicial review against a decision of the Ombudsman to have him referred to the PP for prosecution for alleged leadership breaches. His application for leave under those proceedings was dismissed as having no merit. Thereafter, he filed fresh Originating Summons proceedings at the National Court seeking various declaratory orders under sections 23 (2), 155(4) and 217 (6) of the Constitution. Those proceedings went before Kariko J., on an application by the Ombudsman for dismissal on grounds of abuse of process of the Court. Applying the principles, we have set out above, Kariko J. correctly in our respectful view, dismissed the proceedings for abuse of process. 

20.	Hon. Pruaitch, then appealed against Kariko J.'s decision. After having heard the appeal, the Supreme Court decided to uphold the appeal. In arriving at that decision the Court reasoned:

"17. The Appellant [Hon. Pruaitch] made an e parte application for leave to apply for judicial review. The application was refused. This means that substantive matter for review was not heard, could not be heard and determined when leave was refused by Hartshorn, J. The decision to refuse leave, application for which was heard ex parte, was not a final order made after hearing inter partes all the evidence. The refusal of leave did not determine judicially the merits or otherwise of the Appellant's grievance(s).

It would be unfair for the Appellant to be denied his constitutional right to seek redress in a court of law on the basis that his ex parte application for leave for judicial review was refused. Even an appeal against the refusal would not resolve on the merits the substantive matters for judicial review.

In the end result, we find ourselves at odds with the motions judge in respect of his finding that the Appellant had filed proceedings which are substantially similar when the refusal to grant leave was not a decision on the substantive matter for judicial review. Putting it another way, the Appellant's grievances of being denied the right to be heard (before the referral by the Commission to the Public Prosecutor) was never reviewed in the way Order 16 of the Rules envisages. The refusal of leave by Hartshorn J did not permit him to do so."

21.	With the greatest respect, we do not find this as a correct representation of the law for at least four reasons. First, the true purpose of an application for leave is for a party seeking to invoke the review powers of the Court to demonstrate to the satisfaction of the Court, albeit, at a much lesser standard rather than the higher standards of prove beyond reasonable doubt in criminal cases and on the balance of probabilities in civil matters, that he has an arguable case on the merits. This is necessary to ensure that only meritorious cases are allowed to proceed to judicial review. A Court hearing an application for leave considers the evidence presented before it and the relevant and applicable law and comes to a decision on whether there is an arguable case. Hence, the requirement for leave is not merely procedural. It serves the important function of ensuring only meritorious cases proceed to judicial review. For this purposes, a case is considered on its merits.

22.	In the often cited judgment of Lord Diplock in Inland Revenue Commissioners v. National Federation of Self-Employed and Small Businesses Ltd His Lordship correctly describes what happens at the leave stages:

"If, on a quick perusal of the material then available, the court (that is the judge who first considers the application for leave) thinks that it discloses what might on further consideration turn out to be an arguable case in favour of granting to the applicant the relief claimed, it ought, in the exercise of a judicial discretion, to give him leave to apply for the relief. The discretion that the court is exercising is not the same as that which it is called upon to exercise when all the evidence is in and the matter has been fully argued at the hearing of the application". 

23.	These principles were adopted and applied by Wilson J in NTN v. Board of the Post and Telecommunications Corp. Subsequently, this Court in Ila Geno & Others v. The Independent State of Papua New Guinea, approved the principles enunciated by Lord Diplock.

24.	It should follow that, if at the application for leave stage an applicant is not able to persuade the Court that he has an arguable case, it means there is no merit in his claim and a refusal of leave would perfectly be in order.

25.	This then leads us to the second reason. At the leave stage, the Court hears the matter only on the evidence and arguments of the plaintiff applicant. At that stage the plaintiff is under an obligation to put before the Court all of his evidence and relevant considerations before the Court. By reason of that, no evidence, information or relevant and applicable law or authority should be withheld by the plaintiff. In other words, the plaintiff is under an obligation to put before the Court the entirely of his case, including factors that are not favourable to him or her. The Court is then required to make a decision after duly considering the material put before it by the plaintiff to the exclusion of the defendants. Once a decision is made and subject only to an appeal, it is the end of the matter. This ends any further agitation of any of the issues raised or should have been raised in the proceedings. Such issues may be on the facts in which case any findings of fact by the Court refusing the leave would be final. The same would apply to any other issues, legal or any question of mixed fact and law or a purely legal question. This would bring into application the common law doctrine of res judicata subject only to the right of appeal or review of the decision refusing leave.

26.	The third reason which follows on from the above is this. A failure by the Pruaitch Case No.2 to consider and appreciate the effect of the decision of this Court in the Agiru (supra) case and other decisions on abuse of process. The decision in the Agiru (supra) case makes it clear that, if a person fails in any proceeding in any court, the proper way to get around that is by way of an appeal, if a right of appeal is granted, or judicial review and not an issuance of fresh or alternative proceedings. Hence, no person is at any liberty to commence fresh proceedings in the same court or a higher court, claiming he or she still has a cause of action over the same issues that have been determined or could have been determined in the earlier failed proceedings.

27.	The fourth and final reason is very important and will become clearer with its justifications from the discussions, we will have in the context of the case before us. But for now, we briefly state with respect that, the decision in Pruaitch Case No. 2 does not correctly represent the law in so far as it concerns challenges against the Ombudsman's decisions. The Pruaitch Case No. 2 runs against the spirit and intent of s. 217 (6) of the Constitution and the whole scheme of making leaders accountable for the sake of good leadership, good administration and good governance. Section 217 (6) allows for judicial review as the only way to challenge any decisions of the Ombudsman but restricted to the Ombudsman acting in excess of its jurisdiction. Accordingly, once an application for leave is refused that should be the end of the matter. The Court in Pruaitch Case No. 2, with respect, did not have any regard to these before arriving at its decision.

(b) Application of the law to the Facts

(i)	Originating Summons 02 of 2011

28.	Having stated the relevant background facts and the relevant principles of law, we turn now to an application of the law to the facts in this case. The Originating Summons in relevant parts states that Sir Michael is seeking the following orders from this Court:

"1. A declaration that the words "Ombudsman Commission" in Section 19 of the Organic Law on the Duties and Responsibilities of Leadership ("the OLDRL") on their true interpretation have the same meaning as in Constitution Section 217(1), namely, the Chief Ombudsman and the two Ombudsmen.

2. A declaration that the then Chief Ombudsman Ila Geno acted ultra vires when he alone purported to make a decision under Section 19 of the OLDRL refusing the Applicant's request to appoint another constitutional office-holder to carry out an examination or investigation in respect of the Applicant.

3. A declaration that on their true interpretation the words in section 19 of the OLDRL which refer to the Ombudsman Commission being "unable for any reason to conduct an examination or investigation referred to in Section 17 (of the OLDRL)" include, or alternatively are capable of including, circumstances in which the Ombudsman Commission is biased or there is a reasonable apprehension of bias.

4. A declaration that the purported decision of the then Chief Ombudsman Ila Geno declining to appoint another constitutional office-holder under Section 19 of the OLDRL was made ultra vires, and therefore is void and of no effect – for failure to take into account a relevant consideration, namely, an allegation of apprehended bias; and/or for mistake of law as to the circumstances in which the Ombudsman Commission may be "unable to act". 

5. A declaration that the Applicant's rights and protections under the Constitution, in particular – 

i. section 37 (protection of the law); and

ii. section 59 (natural justice)

have been contravened in consequence of the matters referred to in paragraphs 1 to 4 above.

6. A declaration that the Ombudsman Commission's examination and investigation in respect of the Applicant, and subsequent referral to the Public Prosecutor, were unlawful, null and void by reason of the matters referred to above.

7. Such further or other orders as the Court considers appropriate.

8. Costs of and incidental to the application."

(ii) Consideration

29.	Obviously, Sir Michael issued a number of different proceedings. They stemmed out of a decision by the Ombudsman to have him referred to the PP for possible prosecution for prima facie misconduct in office. Some of those have since been proven and penalty determined. 

30.	A careful consideration of the steps Sir Michael through his lawyers took makes it very clear as to what his intention was behind all of these. He wanted to prevent the whole process of referral from the Ombudsman through to the appointment of a leadership tribunal to inquire into allegations of misconduct in office and imposition of penalties if found guilty. The processes employed to hold leaders accountable commences with the Ombudsman carrying out investigations into possible misconduct in office by a leader.

31.	As has been noted elsewhere already on many occasions, Division – 2 (Leadership Code) of the Constitution, provides for a code of conduct for public leaders for good governance which needs to be adhered to by various identified leaders starting with Sir Michael. The OLDRL provides for the implementation of this part of the Constitution. Section 218 (d) of the Constitution vests the Ombudsman with the powers to supervise and enforce the Leadership Code. Section 27 of the Constitution provides for the process to deal with a leader whom the Ombudsman through its investigations finds guilty of misconduct in office. This was recently authoritatively clarified and elaborated by the decision of the five members Supreme Court in SCR No. 3 of 2005; Reference by The Ombudsman Commission of Papua New Guinea.

32.	Correctly, there is no dispute that Sir Michael is subject to investigatory powers of the Ombudsman for any misconduct in office both under the Leadership Code and the OLDRL. The only issue Sir Michael is there is a need for interpretation of s.19 of the OLDRL. Subject to a determination of that issue, there is no dispute that, where the Ombudsman finds a prima facie case of a leader guilty of misconduct in office and decides to refer the leader to the PP as in this case, the PP independently considers the matter and comes to a decision whether or not to proceed. The decision of this Court in SC Ref No. 3 of 2005 (supra) re-affirms that position.
 
33.	We add that, the phrase "[i]f the Public Prosecutor considers that the matter should be proceeded with..." in s. 27 (2) of the OLDRL, clearly suggests that the PP has to consider the referral from the Ombudsman on its merits and decide whether or not to proceed to prosecute a leader for misconduct in office. This involves looking at both the alleged misconduct and the strength of the evidence presented by the Ombudsman to successfully prosecute. The position is akin to police hand up briefs in committal proceedings under the criminal justice system and the choice the PP has to make under s. 525 (1) of the Criminal Code. 

34.	If the PP is thus independently satisfied that there is a prima facie case of misconduct in office and hence there is merit in the referral, he wound then request the Chief Justice to appoint a leadership tribunal to hear allegations of misconduct in office by the leader concerned. However, as this Court held in SC Ref No. 3 of 2005, if the leader concerned is the Chief Justice, a Judge, the PP, the Public Solicitor (PS) or other law officers and Constitutional Office Holders (COH) like the Auditor General, the referral must be to their respective appointing authorities. Those authorities will independently consider the matter on its merits including, carrying out their own investigations and if the subject matter gives rise to a question of possible removal from office, it would appoint a tribunal or refer the matter to the Chief Justice to appoint a tribunal. 

35.	In the case of COHs and other leaders, once the Chief Justice receives referrals from the relevant appointing authority or from the PP as the case might be, the Chief Justice appoints a tribunal as per the request as a matter of course. This is clear from the decision of this Court in SC Ref No. 3 of 2005. We are of the view that, the position taken by the Court in that case is correct. 

36.	There are no permanently appointed or established tribunals to deal with the various leaders in the way provided for in the Constitution and the relevant Organic Laws. Thus, someone independent of the investigatory process and assessment of the strength and weakness of a case of alleged misconduct in office, without getting into the merits or demerits of the case, has to actually appoint independent individuals who will constitute the relevant and appropriate tribunal. The investigations and assessments are already taken care of at two levels, the Ombudsman's investigation and the PP considering and deciding whether or not to proceed with a prosecution. If the allegations concern the conduct of the Chief Justice, Deputy Chief Justice, Judges and other law officers and COHs, it is at three levels with the matter coming initially from the Ombudsman to the PP and the leader concerned to the appointing authority.

37.	 Once a tribunal is appointed, it inquires into the allegations and decides on both the verdict and if guilt is established, the appropriate penalty. It also has the necessary jurisdiction to hear and determine all issues concerning the process of referral and the eventual appointment of the tribunal. This was one of the issues in SC Ref No. 3 of 2005 and this Court said: 
 
"142. In our view, the tribunal has inherent power to determine its own procedure where there is lack of provision. This power is partly derived from s 181(2) of the Constitution and s 27(4) of OLDRL, both of which empowers the tribunal to conduct due enquiry into the matter "without regard to legal formalities or the rules of evidence and may inform itself in such manner as it thinks proper". Issues pertaining to its own jurisdiction such as issues concerning the appointment of members of a tribunal by a person authorized to make the appointment and the tribunal's constitution by persons who are authorized by law to sit in the tribunal are two of several important threshold jurisdictional issues which the tribunal itself has jurisdiction to consider and determine. Other jurisdictional issues include whether the tribunal has jurisdiction in the subject matter of the inquiry and whether proper procedures prescribed by law have been followed in referring the matter to the tribunal. 
...
143. These matters are fundamental to the tribunal's very existence and terms of its inquiry and they should be raised and dealt with by the tribunal at an early stage of the proceedings as preliminary threshold issues before the tribunal embarks on the actual inquiry. It would be wrong in law and unfair to the parties appearing before the tribunal and the interested public, to allow the proceedings to commence, continue and be completed by a tribunal which lacks jurisdiction to deal with the matter in the first place, only to be quashed by a Court on judicial review. If the tribunal finds in the negative as to any one of these questions, it should decline to exercise jurisdiction on the matter, stop the inquiry and request the tribunal's appointing authority to either rectify or cause to be rectified the error or in an appropriate case, disband the tribunal. The tribunal should simply decline to exercise jurisdiction and refer the matter back to the tribunal's appointing authority."

38.	 Clearly, we have a system of ensuring that only meritorious allegations of misconduct in office go before a leadership tribunal. That system involves the independent exercise of powers and functions which are different from each other from investigations into an allegation of misconduct in office, to a decision to prosecute, the establishment of a tribunal and the tribunal ultimately coming to a decision on the allegations. There is also the further process of review of a decision of the tribunal and finally if a leader remains aggrieved, he or she still has a right of appeal against the decision on judicial review. This process is necessary to ensure that leaders are not subjected to baseless accusations given the importance of the offices they respectively occupy and in the case of all law officers, including the Chief Justice, the Deputy Chief Justice, and the Judges and other COHs, the independence of their respective offices. Additionally, the system also provides for a way of ensuring that the proper processes and or steps are taken to properly prosecute a leader for any misconduct in office.

39.	It is trite law that, a later process or a higher authority such as the National or the Supreme Court cannot easily and readily interfere with the earlier parts of the justice process from being properly completed. The decision of this Court in Rimbink Pato v. Anthony Manjin, makes this point very clear in the context of Mr. Pato trying to get the National Court for an injunction to prevent Police officers from arresting him over an alleged criminal conduct. Speaking against it, the Court said:

"Nevertheless, the most important consideration of all, in our view is whether a civil Court should restrain a criminal investigation by police exercising their constitutional functions to investigate, charge and prosecute a person suspected of having committed a crime or criminal offence. That to us is the most fundamental issue here……

We hold the view that the balance of convenience did not favour the applicant therefore the granting of the interlocutory injunction should not be sustained and extended. Our view is fortified by two considerations. Firstly, the applicant has protection under the Constitution. His rights, whatsoever they may be, in respect of a criminal prosecution are protected by the Constitution. 
 
If he claims such rights are violated, he has recourse pursuant to s. 57 Constitution. We can't see how he can suppress and prevent, by injunction, a criminal investigation by police, which is a constitutional function. 

Secondly, if the applicant claims that his reputation as a lawyer and a politician have been injured and his character defamed by what he asserted to be a conspiracy by the two Engan Members of Parliament with the three police officers, he has the right to sue and issue proceedings for defamation under the Defamation Act….

With respect, the applicant's case in a nutshell, is simply that he does not want to be investigated and arrested for whatever reasons the Police might have, and just because he does not want that to happen to him, he cannot be justified in continuing the interlocutory injunction against the respondents. It is analogous to a Judge being restrained from dealing with a person's case because that person does not like to be dealt with by the Judge.

It is our view that the restraining order against the police, is not only outrageous and spurious, but an interference with the constitutional function of the police."

40.	A growing line of National Court decisions support the principles enunciated in Pato's case (supra), which have all demonstrated great restraint in intervening and refusing to prevent such lawful processes from taking their proper course. One of the first cases on point is the decision of Kandakasi J. in Simon Ketan v. Lawyers Statutory Committee & Anor. This case involved the Lawyers Statutory Committee investigating a lawyer for professional misconduct. There the Court said:

"[The plaintiff] is seeking to prevent the Committee from investigating into the alleged misconduct. This brings Mr. Ketan's case almost on all fours with Rimbink Pato v. Anthony Manjin (supra). The only difference between that case and the present is that, Mr Pato's case concerned criminal investigations while Mr Ketan's case concerns professional misconduct, which is insignificant, in so far as the principles are concerned.

In my view, as the Supreme Court said in Rimbink Pato v. Anthony Manjin (supra) neither the Police Force nor any other public institution charged with a statutory duty to investigate into alleged professional or other misconducts, should be restrained from carrying out their constitutional or statutory obligations. The reason is simple. Persons concerned with such investigations have the right to defend themselves once a formal charge has been laid. If there is say an allegation of defamation of one's character, separate proceedings could be issued for defamation. But it is no reason to prevent ... lawful authorities from carrying out their lawful investigations. If the courts were to readily come into the sphere of investigations and make orders effectively preventing such authorities from carrying out their investigations, it would interfere in the process of proper investigations and bringing those responsible for any criminal or other misconduct, to the appropriate authorities to be dealt with according to law. In my view, nothing drastic happens at the investigations stage against persons covered by such investigations and none of their rights get suppressed even to the point of being charged and being brought before a court of law. The Constitution provides safeguards for persons charged with criminal offences so as to ensure that they are fairly and properly dealt with according to law. Similarly disciplinary process and procedures are in place to deal with people who are charged with administrative or disciplinary processes."

41.	Similar views were expressed by Canning J., in Pius Nui v. Tanda. There, Cannings J., said:

"I agree with the principles stated by Kandakasi J. Those principles should be conscientiously considered whenever any person who is under investigation by the Police or any other investigating authority applies to the Court to put a halt to an investigation. Each case must be considered on its merits. However, it is only in a very clear case that the Court should consider ordering a halt to an investigation that is being conducted by a proper authority and the laws of Papua New Guinea."

42.	Cannings J., also referred to Kandakasi J.'s decisions in Bank of Papua New Guinea and Wilson Kamit v. Marshall Cooke QC & Ors; Bernard Hagoria v. Ombudsman Commission; Dan Kakaraya v. Ombudsman Commission. In the first case, the plaintiff sought to prevent a Commission of Inquiry from carrying out its powers and functions. In the second and third cases, the plaintiffs sought to prevent the Ombudsman from carrying out its investigatory functions as against them, a member of Parliament and the then managing director of a public corporation. In each of these cases, the Court refused to grant orders that could have prevented the Ombudsman from carrying out its investigatory functions.

43.	Other National Court judgments arriving at a similar result include Kandakasi J.'s decision in Tasman Australia Airlines Pty Ltd v. Andrew Ogil, Director of Civil Aviation Authority of Papua New Guinea and Hartshorn J.'s decision in Grand Chief Sir Michael Somare v. Ila Geno; and Canning J.'s decision in Zachary Gelu v. Sir Michael Somare MP.

44.	In the first case, Kandakasi J. followed all the foregoing authorities. He then decided to refuse an application for injunctive orders seeking to prevent the Civil Aviation Authority from carrying out investigations into possible breaches of the Civil Aviation Act and the regulations thereunder. The second case, is the decision in OS 246 of 2008, one of the proceedings taken out by Sir Michael in these proceedings as we have earlier noted. There Hartshorn J., said:

"I am of the view that the principles enunciated in Pato's case (supra) and Ketan's case (supra) and supported in the Pius Nui case (supra), apply here. It is not in the interests of justice or the public interest that lawful authorities should be prevented from carrying out their lawful investigations. Any such prevention should only occur in very clear cases of abuse. I am not satisfied on the evidence presently before the court that there is a clear case of abuse here. The balance of convenience to my mind is not in favour of granting the injunctive relief sought."

45.	In the third case, Cannings J., noted that the plaintiff's application was to prevent a lawful commission of inquiry in its tracks. Accordingly, he declined the application save only to injunct any publication of its report except with the approval of the Court. 

46.	Canning J., and Hartshorn J.'s decisions suggest that, there can be exceptions to the no interference position taken by the Supreme Court and followed by the various other National Court decisions. Hartshorn J speaks of a clear case of abuse while Canning J., speaks of grounds of judicial review being strongly arguable and clear. Three other decisions of the National Court seem to add other possible basis for the Courts to intervene. 

47.	The first case is Sevua J.'s decision in Tkatchenko v. Dessy Magaru. There, the plaintiff demonstrated that his right to be heard provided for under the criminal law committal process was not accorded. As a remedy, the plaintiff asked for a dismissal of the charges against him. The Court however, noted that the matter before it was a judicial review matter and remitted the matter back to the District Court for fresh committal hearings before a different magistrate. 

48.	A similar result was arrived at in the second case of Jimmy Mostata Maladina v. Posain Poloh. There, Injia DCJ (as he then was) found that the Committal Court did not fully accord the plaintiff his right to be heard before arriving at a decision to have him committed to stand trial in the National Court. So a fresh committal hearing was ordered.

49.	The third case is the decision of Kandakasi J in Sakawar Kasieng v. Andrew Baigry. There,the defendant conducted a coronial inquest some three years after the death of a person well outside the time period stipulated in the Coroners Act. That in turn required the Attorney General's approval which was not sought and obtained. Further, the first defendant did not conduct a proper and complete coroner's inquest in accordance with the requirements of the Act following the death of a person. Furthermore, the defendant did not formally have the plaintiff charged in accordance with the findings of the inquest or at all. In these circumstances, the Court granted the plaintiff leave for judicial review.

50.	The practice in England, Australia and other jurisdictions which have a similar legal system to that of ours, speak in terms similar to what the Supreme Court said in Pato's case (supra) without talking about any exceptions. This was referred to and discussed in State v. Tanedo where this Court refers to Ex parte Cousens; Re Blacket and Anor. There, Sir Frederick Jordan speaking for the court concluded in the context of and in respect of the nature of committal proceedings and the attitude of superior courts regarding review of committal decisions said:

"This is essentially an executive and not a judicial function; and although magistrates have been exercising this authority for nearly 400 years no instance can be found of a superior court having interfered with a magistrate by certiorari or prohibition in his exercise of this function: Cox v Coleridge (1882) 1 B & C 37".

51.	The refusal by the superior courts to intervene in the administrative and investigative processes that lead to criminal or other charges is for very good reasons. Lord Denning whilst acknowledging that never in the past would the superior courts intervene or interfere with such processes, ably spoke of some of the risks of any intervention or interference in Moran v. Lloyds. There his Lordship said:

"Today we have to deal with a modern phenomenon. We often find that a man (who fears the worst) turns around and accuses those – who hold the preliminary inquiry – of misconduct or unfairness or bias or want of natural justice. He seeks to stop the impending charge against him. It is easy enough for him to make such an accusation. Once made it has to be answered. So he says there is a tribal issue: and that it must go to trial. He knows that it will take months and months. So he gets that which he most wants – time – time to make his dispositions – time to put in his money in a safe place – time to head of the day when he has to meet the charges. And who knows? If he can stop the preliminary inquiry in its tracks, it may never start up again."

52.	What Lord Dennings said found its way into our shores per the judgment of Sheehan J. In Diro v. Ombudsman Commission of Papua New Guinea, who cited this passage with approval. Canning J.'s decision in Zachary Gelu v. Sir Michael Somare MP (supra) put this in another way in these terms: 

"However, it is only in a very clear case that the court should consider ordering a halt to an investigation that is being conducted by a proper authority under the laws of Papua New Guinea. If we do not insist on the rather strict test ... the court will create the environment in which any person who is fearful of exposure by a commission of inquiry or another investigatory agency will come to the court, knowing that they only have to establish an arguable case. The investigation will be stopped in its tracks. Time will be bought. Perhaps time to hide evidence. The courts may unwittingly be protecting those with something to hide rather than protecting the more legitimate interests of those with a right to know: the People of Papua New Guinea."

53.	Added to this, is the often repeated accepted position that all these processes, be it Police investigating into a criminal matter or the Ombudsman carrying out its investigations under the OLDRL; or committal courts and the PP or the various appointing authorities in the case of the law officers and COHs, considering whether there is prima facie case of misconduct in office; or a commission of inquiry inquiring into certain facts, are only preliminary steps. They do not make final decisions on guilt or innocence and or penalties. Those are matters that are left to the ultimate decision making authorities like the courts in indictable criminal offences and a leadership tribunal for leadership breaches once appointed.

54.	It is in the court or a final decision making authority like leadership tribunal, where the evidence gathered through the investigations gets tried and tested. It is there in these forums that an accused has all his constitutional and other rights, protection and appeal or review procedures that the justice system provides which an accused can avail him or herself of. These rights are not extinguished upon a decision to investigate, charge, commit an accused to stand trial or refer a leader to the PP and a request from him to appoint a leadership tribunal and such a tribunal being appointed. They remain intact until at the trial or hearing level and a final decision is arrived at.

55.	This has to be weighed against the risks or dangers highlighted in Lord Dennings judgment and that of Canning J. These are two competing interests. An intervention by a superior court for whatever reason comes with the serious risk of what Lord Denning and Canning J. said actually materializing. If that occurs, the people through the State or the relevant authority charged with a duty to bring to account leaders and others who are guilty of misconduct in office or any other person of any criminal conduct, will lose the opportunity to have such people properly brought to justice according to law. As a result, the offender will escape any consequences for his or her misconduct in office or criminal conduct. In that regard, the offender gains twice, first from his misconduct and secondly through avoiding the consequences of his misconduct or misbehaviour. 

56.	On the other hand, what this Court said in Pato's case would apply as one's remedy for anything that might be a cause for concern or harm or damage to those affected by such processes taking place against them at the preliminary stages. A refusal to intervene would enable the preliminary process to be completed without unnecessary stopping and starting with the superior Court's intervention. This will safeguard against the risks highlighted by Lord Denning and Canning J. Not only that, this would more importantly allow for the investigations to be completed and prosecutions expedited whist the trail of evidence or memories of witness are still fresh and evidence has not lost their cogency with the will and desire to prosecute still intact. 

57.	As noted, intervention by superior courts into process of investigation and eventual prosecution for criminal or other misconducts is unheard of in England, Australia and other countries which have legal systems similar to ours. In PNG, earlier decisions of the National and Supreme Courts followed their English and Australian counter parts. Recently, a small number of National Court judgements have tried to craft into this long established tradition, some exceptions. This has given more opportunities to those who seek out to defeat the systems and process established by law some sense of standing and foundation for their actions. That is counterproductive to the proper administration of justice and the rule of law when there is no compelling reason for it particularly when, rights and interests of the accused or the implicated remain intact until proper hearing and determination by the appropriate court or tribunal. In very recent times, there have been a number of interventions by the National Court but none of them have been published so we do not know of their reasoning.

58.	Carefully weighing the two sides and all of the cases cited above, we are of the firm view that, the interest of justice and the need to allow for the due process of the law to take its proper course for the greater good of society will be better served by the superior courts, that is the National Court and or the Supreme Court as the case might be, maintaining the age old tradition of not intervening. This should be without any exception because as this Court said in SC Ref No. 3 of 2005, all issues concerning both the process and the substance can be taken up as a preliminary point when the proper court or the tribunal assumes jurisdiction and is seized of the matter. If after that process, the court or the tribunal finds for the accused or the alleged offender that could in appropriate cases, form the foundation for appropriate remedial actions as highlighted by this Court in Pato's case. 

59.	An intervention by the superior courts allows for instances, stopping the process only to restart it again. By then, the freshness of the evidence, availability of witnesses and interest in seeing justice being done gets lost and ultimately justice is not served. Justice can only be done without much delay and all steps that need to be taken being taken in a timely and orderly fashion. Otherwise, the converse of that is true. Justice delayed is justice denied with those who seek out to delay justice end up gaining. If those who are accused or implicated have nothing to hide they would readily allow the process to take its proper course. Good leadership requires a ready acceptance of responsibility for one's actions and try to minimize any harm or damage that can be done to themselves, interest of the institutions they are part of and that of the nation, by allowing the process to take its course. Most of the harm and damage is caused by people who chose to take all sorts of unnecessary issues with the process without merit most of the time, which results in unnecessary costs and delay. Usually such steps are taken to divert attention from the real issues. 

60.	In developed democracies as in the case of England, Australia, New Zealand, the United States and elsewhere, people who hold public offices who become the subject of allegations and investigations for any misconduct in office, often almost readily either resign or step aside to allow for the investigations and the due process of the law to take its proper course. This they do out of respect for themselves and their own integrity and the integrity of the office they hold and the institutions they are part of as well as respect for the due process of the law. This is most noble, respectful and a demonstration of true leadership in difficult times for the sake of good administration, governance and the greater interest of the nation.

61.	The tradition of voluntary stepping down in the light of allegations and accusations of misconduct in office or criminal conduct of a public office holder became part of PNG's democracies and tradition. At least two leaders as far as we are aware respectively resigned and stood down from office in such circumstances. The first leader was Opai Kunangel. What he did is recorded in the decision of this Court cited as SCR No 2 of 1982; Re Opai Kunangel Amin. The leader was the subject of Ombudsman investigations and a decision in favour of a prima facie case of guilty of misconduct in office. That resulted in the leader being referred to the PP for prosecution under the OLDRL. After a consideration of the material provided to him, the PP decided to refer the matter to a leadership tribunal for prosecution, for which purpose, he requested the Chief Justice to appoint a leadership tribunal. A leadership tribunal was appointed but before the tribunal could deliberate on the matter, the leader resigned from his position as a Minister of the State and as Member of Parliament. Apart from the purpose of his resignation which was the subject of discussions in the Supreme Court judgment, the fact of the matter is that, he resigned voluntarily amidst allegations of misconduct in office.

62.	The other leader was Sir Julius Chan who decided to step down as Prime Minister during the Sandline crisis. That was a public and national event. It attracted both national and international interest and attention through all forms of the media. Hence it is capable of judicial notice and we do take such notice. The fact of Sir Julius Chan's stepping aside, at least calmed down a lot of anger, frustration and public anxiety. 

63.	Since then up to this point in time, it is unfortunately fast becoming the norm for most leaders in PNG who are the subject of allegations and investigations for misconduct in office and or criminal offences to continuing to occupy their respective offices and continue to function and are readily applying for stay or injunctive orders. Some of them are even interfering into the proper conduct of investigations and proper conclusions of such investigations. Others are doing everything they possibly can to remain in office, continue to function and in most instances are either committing more misconduct in office from tempering with evidence, interfering with witnesses, swindling of funds or otherwise seriously abusing their powers knowing that, they may not last long in those offices. In this regard, this Court in Hon Patrick Pruaitch, MP v. Chronox Manek (Pruaitch Case No. 1) correctly observed in our respectful view that, when that happens for instances: 

"... [D]uly appointed tribunals will be left frustrated and unable to perform the tasks for which they are appointed, i.e. inquiring into matters of alleged misconduct in office against the people referred. The leaders meanwhile will continue to perform their official duties by taking out stay orders at will, against the tribunals from inquiring into their alleged misconduct. This will make a mockery of the Leadership Code, more particularly the work of the Ombudsman Commission in enforcing the Leadership Code. The inquiries will continue to be stalled and the leaders whose integrities are already called into question will continue to discharge leadership responsibilities. This will also make a mockery of the Constitution and the leaders will continue to act in contempt and defiance of the Constitution." 

64.	 For the detailed reasons this Court gave in Pruaitch Case No.1, and what we have alluded to earlier, it correctly arrived at the view that, a leader who is referred to a leadership tribunal is automatically suspended from office. To that we add that, this should be the case, if the leader has not already stood down or resigned from office voluntary. The Supreme Court comprising of 5 members in Kunangels case (supra) were unanimously of the view that once a leader is referred to a leadership tribunal the leader is automatically suspended from office. The three Judges in Pruaitch Case No.1 were also of the same view. However, the decision in Pruaitch Case No.2, with respect did not refer to any authorities in the way the decision in Pruaitch Case No. 1 did and arrived at the view that, the question of suspension does not arise until the charges and statement of reasons are presented to a leadership tribunal appointed to inquire into and determine the charges. 

65.	Pruaitch Case No. 2 with respect did not refer, discuss and demonstrate how the various authorities and various provisions of the Constitution and the OLDRL the first decision referred to and relied upon were wrong and therefore not good law for them to follow. Not only that, the second decision did not acknowledge and have any regard to the established tradition in other countries which have a legal system similar to that of ours and we have at least followed through Sir Julius Chan and Opai Kunangel cases and the good purpose that tradition serves. Further, in so doing, the second decision failed to note that the founding fathers of our Constitution and our nation foresaw in their wisdom that people in public offices in PNG may not readily follow the established tradition. They therefore made expressed provision in the Constitution for suspension of certain officers, for instance s.94 in case of the Governor General, 142 (6) in the case of the Prime Minister and s.182 in the case of the Chief Justice and others who are appointed by the Judicial and Legal Services Commission such as Judges and other law officers. 

66.	Furthermore, the second decision failed to note that, in that scheme of things, that the Constitution per s. 28 of the OLDRL in particular provides for suspension when one becomes the subject of investigations and a referral to a leadership tribunal. The provision reads:

"28. SUSPENSION.

(1) Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty." (Emphasis supplied)

67.	As can easily be seen, the part on suspension is in the present tense. Hence suspension is not something that may have to happen at a later time. Instead that is what happens immediately on referral by the PP to a leadership tribunal if the leader concerned had not earlier voluntarily stood down or resigned from office. For reasons we have given in the foregoing, this provision correctly does not require any body to do anything about the question of suspension unlike in the case of a suspension under ss. 94, 142 (6) and 182 of the Constitution for instance. Hence, with the exception of the leaders covered under specific provisions like, ss. 94, 142(6) and 182 given the importance of the offices they occupy, suspension is something that occurs automatically for all other leaders. Section 28 (1) merely states that is what happens without any further ado. 

68.	This particular provision has been the subject of specific and detailed consideration in Pruaitch Case No. 1 and before that in Opai Kunagel case. We agree with those views in so far as they stand for the proposition that, suspension is automatic where a leader is referred to a leadership tribunal for prosecution for prima facie misconduct in office. This is subject to specific provisions such as ss. 94, 142(6) and 182 of the Constitution or the OLDRL. However, with the greatest respect we have difficulty following that decision on the question of when does that automatic suspension occur or expressed differently, what triggers the automatic suspension. 

69.	In our considered view, although the process of referral to a leadership tribunal starts with Ombudsman investigations, the actual referral to a leadership tribunal does not commence until the PP decides or, in the case of a Judge or a COH or the PP or the PS, the relevant appointing authority decides to appoint or requests the Chief Justice to appoint a tribunal. As the Pruaitch Case No. 1 and the decision in SCR No. 3 of 2005: Reference by the Ombudsman Commission (supra) correctly observed, the appointment of a tribunal is only a matter of course. The presentation of the allegations or charges and the information or material in support is the commencement of prosecution, the hearing or inquiry at the tribunal after a decision to refer to a tribunal had already been made. Without a decision to refer there can be no referral and without a referral there can be no leadership tribunal. An appointment of a tribunal is thus only to deal with the referral already made and the presentation of the charges and statements in support is the basis for the referral which needs to be inquired into and a decision arrived at. Hence, in our view therefore, the suspension under s. 28 (1) of the OLDRL takes place the moment a decision is made to refer a leader to a leadership tribunal. 

70.	If suspension was to take place either on the appointment of a leadership tribunal or on the presentation of the charges and the statement in support, Parliament would have said so by using phrases like "upon appointment of a leadership tribunal" or "on presentation of the charges and statements in support". Also if the suspension was to be triggered by any other event in the process, Parliament could have used the appropriate language to indicate that. The fact of the matter however, is that Parliament indeed made a choice and used the words as we find then now in s. 28 (1) of the OLDRL. It says "[w]here a matter has been referred to a tribunal". For these reasons, we regrettably do not agree that there is a vacuum or uncertainty as to when suspension under s. 28 (1) of the OLDRL occurs. For avoidance of any doubt, we reiterate that suspension is triggered or takes effect from the moment a decision is made to refer a leader to a leadership tribunal by the PP and in special cases, as elaborated by the decision in Pruaitch Case No. 1 and SCR No. 3 of 2005: Reference by the Ombudsman Commission (supra), the Ombudsman or an appointing authority is made and announce. Again for clarity, we stated for the reasons we have given, the process from start of investigations to a leadership tribunal being appointed and its assums jurisdiction cannot be injuncted or otherwise interfered with by a superior Court.

(ii)	Applying the Law to the Present Case

71.	In the present case, the Ombudsman arrived at a decision to refer Sir Michael to the PP after having come to a decision that there was a prima facie case of Sir Michael being guilty of misconduct in office. Rather than taking the most noble and respectable approach of stepping aside or resigning, Sir Michael took a number of steps which were inappropriate and amounting to an abuse of the process of the Court and against the spirit of good leadership and leadership duties and responsibilities as set out in the Leadership Code under the Constitution and the OLDRL and an abuse of the due process and the rule of law. 

72.	Firstly, before the Ombudsman could refer him to the PP, Sir Michael through his lawyers filed OS 246 of 2008, under which, he unsuccessfully sought orders for a summons for the Ombudsman to produce documents and for injunctive orders to prevent the Ombudsman from actually referring him to the PP. 

73.	Secondly, following his above two failed attempts, the Ombudsman on 26th June 2008 made its actual referral of Sir Michael to the PP for prosecution for misconduct in office. On the same day Sir Michael, through his lawyer, reacted with the filing of appeals against the decisions of the National Court and sought a stay of the decision of the National Court particularly the one which declined his application for injunction. However, he did not pursue that application and subsequently withdrew his appeals. Then on 4th July, he filed a motion in the National Court in OS 246 of 2008 seeking leave to join the PP and thereafter have the PP restrained from referring him to the Chief Justice for an appointment of a leadership tribunal to deal with allegations of misconduct in office. On 12th July 2008, the National Court granted only the application seeking to join the PP as a party to the proceedings. 

74.	 Thirdly, on 3rd October 2008, Sir Michael filed again through his lawyers, SC Ref 9 of 2008, claiming there were constitutional issues. On account of those proceedings, he secured the Ombudsman and the PP's consent with which the National Court stayed OS 246 of 2008 pending a hearing and determination of SC Ref. 9 of 2008.

75.	Fourthly, Sir Michael did not promptly prosecute SCR No. 9 of 2008 or before that, his application seeking to injunct the PP which proceedings were subsequently stayed pending a decision on SCR No. 7 of 2008: Reference by Ken Noare Mondiai & Ors (supra). This meant no restraint on the PP considering the referral from the Ombudsman. Accordingly, after considering the referral, the PP made a decision to proceed to prosecute Sir Michael. Hence, on 13th December 2010, the then Acting PP, Mr. Jimmy Wala Tamate requested the Chief Justice under s. 27 of the Organic Law on Leadership to appoint leadership tribunal to inquire into the allegations of misconduct in office by Sir Michael. 

76.	Fifthly, on 17th December 2008, the Supreme Court handed down its decision in SCR No. 7 of 2008. In that decision, the Court said no individual in his or her own personal capacity can file a constitutional reference under s. 18 of the Constitution. They can however; file originating summons claiming a question of constitutional interpretation and application.

77.	Sir Michael and his lawyers did not do anything soon after the decision of the Supreme Court in SCR No.7 of 2008, save only to have his constitutional reference SCR No. 9 of 2008 withdrawn with the consent of all parties on 7th March 2011, leaving only the question of costs of the withdrawn proceedings to be dealt with. Meanwhile, on February 21st, 2011 the Chief Justice appointed a leadership tribunal, pursuant to Section 27 (7)(d)(iii) of the OLDRL. That tribunal proceeded to conduct its inquiry and arrived at a decision on 18th March 2011, finding Sir Michael guilty on some of the charges and not guilty in others. Before doing so, the tribunal also considered the provisions of s. 142(6) of the Constitution and decided not to suspend Sir Michael. On 4th April 2011, the Tribunal handed down its decision suspending Sir Michael from office for two weeks commencing from the date of the decision as a penalty for the misconducts he was found guilty of. 

78.	 Finally, whilst the leadership tribunal was dealing with the charges against him, Sir Michael filed these proceedings. As will become apparent, this step Sir Michael has taken without having any merit and in clear abuse of the process of the Court. 

79.	Consistent with what we said on the basis of the authorities, we have set out above, we are of the view that, Sir Michael through his lawyers abused the process of not only this Court but also the process of the National Court. As we said, what the Ombudsman did was only a start of an investigatory process which did not finally determine Sir Michael's innocence or guilt. That position was reached when the leadership tribunal handed down its decision on 18th of March and 4th April 2011, respectively on his guilt and penalty. The various steps Sir Michael took through his legal counsel or advisors were nothing short of an attempt at preventing a process ordained by law taking its proper course. That process as we have noted, has its checks and balances to ensure that only meritorious cases get to the final level of a leadership tribunal being established which conducts an inquiry into the allegations and arrives at a final decision subject to a right of review, on a leader's guilt or innocence and if found guilty an appropriate penalty. Had Sir Michael allowed the process to take its proper course, a leadership tribunal could have been established and the matter could have been completed long before rather than in 2011. If Sir Michael took such an approach this would have resulted in an avoidance of all the unnecessary delay, costs, inconveniences and anxiety this has caused to the Ombudsman, the PP, the National Court and more importantly keeping the nation in suspense for an unnecessarily long period of time. 

80.	If Sir Michael had any serious concern and wanted to have that dealt with promptly, he should have pursued his appeal against the decision by Hartshorn J., in OS 246 of 2008 and pressed on with the substantive issues under those proceedings. He instead filed appeals which he later chose not to pursue and filed a constitutional reference which he was not entitled to do and only to have it withdrawn also. Almost at the end of all those unnecessary and improper actions, Sir Michael finally submitted to the jurisdiction of the leadership tribunal which tribunal has now concluded its task and has disbanded which has demonstrated that there was some merit in Sir Michael's referral to the leadership tribunal. Again if Sir Michael had a serious issue or concern and was wrongly not granted the remedies he was chasing, he should have raised those issues and concerns at the tribunal and if he was still aggrieved by the decision of the tribunal, he should have immediately filed for a judicial review of the tribunal's decision. The fact of the matter now is that, Sir Michael has accepted the decision of the leadership tribunal evidenced by the lack of any direct challenge against that decision.

81.	The kinds of reliefs Sir Michael is seeking, under these proceedings (SCOS 2 of 2011) are the very kinds of reliefs he could have sought from the leadership tribunal and failing that, under a proper judicial review against the decision of the leadership tribunal. It is rather mischievous through his legal advisors and counsel for Sir Michael to seek such reliefs through a process other than a direct and proper challenge against the decision of the leadership tribunal. Further, we note that, Sir Michael did take out earlier proceedings which raised the very same issues and in one matter a decision was arrived at against him after having heard him. The only proper way to get around the decision against him was to appeal which he did but subsequently withdrew, by reason of which the findings remain established against him.

82.	Subject only to a determination of the question of whether these proceedings raise a question of interpretation and application of a constitutional law, we are of the firm view that, what Sir Michael has done and is doing through his lawyers is a serious abuse of the process of the Court at the highest and offends one of the very basics in matters of practice and procedure before the courts, which is this. Where there is a decision that adversely affects a person, that person is bound by that decision unless he challenges that decision and gets a reversal through the proper process of appeal where there is one available or through judicial review which meets all of the relevant and applying requirements for a successful appeal or review. In this case, there are two decisions, the decision by Hartshorn J. and the leadership tribunal decisions against Sir Michael. These decisions preclude him from taking any other step except through an appeal or review. Having made deliberate decisions not to take such steps, he cannot and is not at any liberty to issue alternative or other proceeding. He is in the same boat as the plaintiff was in the Agiru case.

83.	Further, we are firmly of the view that, what Sir Michael has done is contrary to spirit of the Constitution, the OLDRL and the rule of law. Not only that, what he did was against the spirit of good leadership, good administration and good governance. His actions also went against established good tradition in legal systems similar to ours and adopted and applied at least in two instances in our country in terms of voluntarily stepping aside or resigning.

Issue (d)

Whether a question of interpretation and application of a constitutional law has arisen?

(a)	Discussion on Law

84.	We now turn to the remaining issue of whether a question of interpretation and application of a constitutional law has arisen. In respect of that issue, the starting point is s. 18 of the Constitution. That provision reads:

"18. Original interpretative jurisdiction of the Supreme Court

(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.

(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate. 
(Underlining supplied)

85.	We accept the learned counsel for the Ombudsman, Mr. Narokobi's submission that, there are two important elements in this provision. These are:

(1)	Subject to the Constitution; and

(2)	The Supreme Court has exclusion jurisdiction on a question of interpretation and application of a constitutional law.

86.	This means in our view that, whilst the Supreme Court has the exclusive jurisdiction in a case where a question of interpretation and application of a constitutional law arises, that is however, subject to any other provision in the Constitution that might provide otherwise. Put it another way, if any other provision in the Constitution vests power in another Court or tribunal to deal with a question of interpretation and application of a constitutional law, that Court or tribunal can deal with that question.

87.	In this respect, we note there is a long established line of authorities which have interpreted the phrase "Subject to the Constitution..." to mean where the Constitution gives jurisdiction to the National Court to apply certain provisions of the Constitution, the National Court can interpret and apply those provisions in a particular case. An example of a case on point is Raz v. Matane. 

88.	The second element has been the subject of a number of decisions of this Court already. Kapi DCJ (as he then was) in the case of Patterson Lowa, Minister for Minerals and Energy and Others v. Wapula Akipe and Others referred to some of the cases on point and said:

The constitutional issue, that is to say, the interpretation and application of a constitutional law, must arise and the court must be asked to determine the issue. A constitutional issue can arise in this sense in one of two ways.

The first is that there must be a set of circumstances which gives rise to a constitutional issue. That is to say, there must be findings of facts which give rise to this issue. This, of course, is the general rule applicable to any issue which may arise in a proceeding. Whether a constitutional issue arises depends on the findings of fact. One set of findings of fact may give rise to the issue and on the other hand, another finding of facts may not give rise to the constitutional issue. All the Supreme Court cases which I have referred to on this issue make this point. It follows from this reasoning that the court must deal with the facts in order to determine whether or not the constitutional issue may arise for consideration. If this is not done, then the constitutional law issue is raised prematurely. 
....

Secondly, a constitutional issue may not necessarily be raised by the facts but may be raised by application of another law. For example, a statute may be interpreted in such a way that it may or may not give rise to a constitutional issue." 
(Emphasis added)

89.	We agree that, it is now well settled law that, a question of interpretation and application of a constitutional law may arise in either of two ways as highlight by Kapi DCJ. The first is in cases where factual circumstances giving rise to a question of a constitutional law interpretation and application arises. The second is where a provision of a statute appears to be in conflict with a constitutional law in its interpretation and application. In either case, there must be an argument over two things: (1) interpretation of a constitutional law provision; (2) its application. Both must arise in order to qualify for a case of an issue arising in relation to the interpretation and application of a constitutional law.

90.	In relation to the question of how the jurisdiction of the Supreme Court can be invoked, it has been the subject of a number of decisions of the Supreme Court with the latest one being the decision in the Ken Noare Mondiai reference (supra) which has considered all of the earlier decisions on point. From all these decisions there is no dispute that, s. 19 of the Constitution is a key provision in determining how the jurisdiction of the Supreme Court under s. 18 can be invoked and by whom. All of the authorities on point are agreed that the first way to invoke the Supreme Court's jurisdiction is by the filing of a constitutional reference by any of the persons who are specified and or authorised by s. 19 (3). The earlier decisions are also agreed that an individual can file an Originating Summons pleading a cause of action.

91.	However a close examination of the precise wordings in sections 18 and 19 of the Constitution makes it clear that s. 18 (1) makes a declaration as to which Court has the original jurisdiction on a question of interpretation and application of a constitutional law without specifying how that jurisdiction can be invoked. The next subsection addresses the question of how the jurisdiction vested in the Supreme Court can be invoked. This is particularly in a case where, a question of constitutional law interpretation and application arises in any other Court or tribunal. Where that happens s. 18 (2) requires the Court or the tribunal in which the question arises to refer the question to the Supreme Court. Before it does so however, the Court or the tribunal must first be satisfied that the question is not trivial, vexatious and or irrelevant. Implicit in there is the fact that proceedings have already been commenced in courts or tribunals other than the Supreme Court. 

92.	Accordingly, we are of the view that the exclusive jurisdiction vested in the Supreme Court does not necessarily exclude where one can commence his or her proceedings which raises a question of constitutional law interpretation and application. Strictly speaking therefore, in our view, this provision is not saying all matters in which there arises a question of interpretation and application of a constitutional law must only be filed in the Supreme Court. Instead, the provision envisages and does not prohibit the commencement of proceedings in lower courts or tribunals in which raises a question of interpretation and application of a constitutional law. Where such is the case, this provision requires the lower courts or tribunals to refer the matter to the Supreme Court, provided the lower court or tribunal is satisfied that the question is not trivial, vexatious or irrelevant. 

93.	Section 19 of the Constitution then specifically addresses the question of process and procedure. That provision reads in relevant parts:

"19. Special references to the Supreme Court.

(1) Subject to Subsection (4), the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.

........

 (4) Subject to any Act of the Parliament, the Rules of Court of the Supreme Court may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section, and in particular as to—

(a) the form and contents of questions to be decided by the Court; and

(b) the provision of counsel adequate to enable full argument before the Court of any question; and

(c) cases and circumstances in which the Court may decline to give an opinion.." 
 (Emphasis supplied)

94.	Clearly, this provision only authorises the persons or authorities specified in subsection (3) to invoke the original jurisdiction of the Supreme Court on a question of constitutional law interpretation and application. Then subject to any Act of Parliament, subsection (4) allows for the Supreme Court to promulgate rules which "may make provision in respect of matters relating to the jurisdiction of the Supreme Court under this section", that is s.19. In other words, subject to what an Act of Parliament might say, the Supreme Court can promulgate rules only in relation to references under s. 19 by the persons authorized under that provision. The only relevant Act here is the Supreme Court Act. There is no provision there that specifically concerns the Supreme Court's original jurisdiction under s. 18 of the Constitution. The Act is mainly dedicated to appeals in both criminal and civil matters from the National Court. Thus, all we have is section 18 and 19 of the Constitution.

95.	Hence, it appears clear to us that, there are only two processes or procedures that can be employed to raise a question of interpretation and application of a constitutional law. The first is by reference under s.19 by any of the persons authorized by s. 19(3). The second is under s. 18 (2) by way of a referral from a lower court or tribunal of a matter that is before it that raises a question of interpretation and application of a constitutional law. Independent of these two, according to the past decisions of this Court as reviewed by the decision in the Ken Noare Mondiai (supra) reference and reaffirmed in that decision, there appears to be a third process, which is the filing of an originating summons at the Supreme Court by other individuals.

96.	The soundness or otherwise of the third process is not an issue before us. This may be for another day in another proceeding. For the matter before us, there is no issue that, Sir Michael could directly come to this Court by way of an originating summons. Accordingly, we proceed on the basis that there is no issue in Sir Michael directly coming to this Court. The only challenge from the Ombudsman is that, Sir Michael has not properly and appropriately pleaded his case to invoke the jurisdiction of the Supreme Court under s. 18 of the Constitution and that the proceedings do not raise any question of interpretation and application of a constitutional law. 
 
97.	The Ombudsman's challenges stems from the decision in the Ken Noare Mondiai reference (supra) and all earlier decisions before it that, one must properly plead a cause of action before the Supreme Court. There is no specific case on how a matter seeking to invoke the Supreme Court's original jurisdiction must be pleaded. In the absence of any specific legislative or case law on point, we are of the view that, the general rules of pleading a cause of action in any court equally applies here with the relevant and necessary modification to reflect that it is a matter before the Supreme Court in its original jurisdiction under s. 18 of the Constitution. 

98.	The general rules of proper pleading as they apply in the National Court with the endorsement of the Supreme Court in the context of appeals from the National Court say that, the relevant facts disclosing a reasonable cause of action must be pleaded with the relevant and necessary particulars without necessarily pleading the evidence. A failure to do so may result in a denial of the remedy that may be sought. What this means in the case of someone filing an originating process in the Supreme Court seeking to invoke the original jurisdiction of the Supreme Court must, properly plead the basis for his claim that a question of interpretation and application of a constitutional law arises or has arisen. If it arises out of a factual setting, the relevant facts must be succinctly pleaded with the relevant question sufficiently and clearly identified and set out in such a way that a quick perusal of the pleadings will immediately and clearly reveal the relevant question of constitutional law interpretation and application and the basis on which that arises. The plaintiff has the onus to ensure that is done. 

99.	Pleading in the way we just described is necessary to ensure that, there is indeed a question of interpretation and application of a constitutional law which is in the exclusive jurisdiction of the Supreme Court and is one that cannot be heard and determined in the National Court or any other court or tribunal. This will enable the Court and the parties to appreciate what is raised at once and thus avoid unnecessary wastage of everyone's time trying to work out what is it that is being claimed. In this way as already noted, a number of cases have already invoked the original jurisdiction of the Supreme Court as in the cases of Kaseng v. Namaliu; Momis and Others v. NEC and Others; and MRDC v. Ombudsman Commission. The Supreme Court dealt with these cases because they did raise issues of constitutional law interpretation and application and were not matters that could be dealt with in any other way.

100.	A way to properly frame for instances questions of constitutional law interpretation and application is the way in which questions were framed in SCR No. 3 of 2005. We quote the first two questions to demonstrate this. 

"(a) Do the provisions of Part III – Division 2 (Leadership Code) of the Constitution and the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) provide a distinct and complete process for investigating and prosecuting alleged misconduct in office arising from breaches of the provisions of those Constitutional Laws?

(b) Do Sections 179, 180 and 181 of the Constitution provide a process distinct from the Leadership Code and the OLDRL to investigate the issue of removal from office of the Chief Justice, a Judge (other than the Chief Justice) a Law Officer and the Chief Magistrate?

101.	A close examination of Sir Michael's originating summons and the pleadings therein contained, fails in our respectful view to bring out clearly both the questions of constitutional law interpretation and application, he claims that arise here. In this case, since, it arises out of the Ombudsman carrying out investigations under the Leadership Code and OLDRL on the basis of which it decided to refer Sir Michael to the PP for prosecution, it was also necessary to plead succinctly the relevant facts with the necessary particulars to clearly demonstrate at once the basis for the constitutional questions so as to ensure that this Court is the only forum for his concerns to be raised and resolved. 

102.	One might say these are matters for submission and evidence. Such an argument however, ignores the vital role pleadings play in proceedings. As has been noted in many decisions of the Supreme and National Courts, pleadings lay the foundation for a claim and determine the relevance and kinds of evidence the parties my call and the kinds of relief the Court could grant if proven. Given that, the law requires parties in particular, plaintiffs to properly plead and then establish by appropriate evidence their alleged loss or damages. Where plaintiffs have failed to do that, both this and the National Courts have correctly denied them of their claims. This is the case, because without the necessary foundation in the pleadings, there can be nothing on which the Court can be properly seized of a matter and proceed to properly and legally exercise its jurisdiction.

103.	In the case before us, Sir Michael has failed in his pleadings in two respects. First, he has failed to plead succinctly the facts giving rise to what he claims are questions of interpretation and application of a constitutional law. Secondly, he has failed to plead with clarity the particular questions of interpretation and application of constitutional laws that arise here. Accordingly, he cannot be allowed to proceed any further.

104.	The need to properly and clearly plead with particularity is necessary to see what is different and could not have been resolved in the leadership tribunal that has since heard and concluded its task. As we said before, all issues concerning the Ombudsman's conduct of investigations, decision as to the existence of a prima facie case, a decision to refer the matter to the PP for prosecution, who in the Ombudsman made those decisions, whether by one or two or three members of the Ombudsman, whether the person who actually carried out the investigations and or made the decisions finding a prima facie case of misconduct in office and deciding to refer Sir Michael to the PP was biased, the decision to request the Chief Justice to appoint a leadership tribunal, the appointment of the leadership tribunal and the tribunal's decision and authority were all matters open for Sir Michael to take up as preliminary points before the leadership tribunal. Of course, as the Kapi DCJ said in Patterson Lowa & Ors v. Wapula Akipe & Ors (supra) Sir Michael had the obligation to establish to the satisfaction of the tribunal the factual basis on which he says a question of interpretation and application of a constitutional law has arisen. Without that being done, it would be too premature for one to claim a question of interpretation and application of a constitutional law has arisen. This is necessary because, once the facts are established in that way, there may be no need for interpretation and may only be an application of a clear constitutional law provision. If that were the case, that would be a matter well within the powers of the tribunal to apply the relevant and applicable constitutional law.

105.	If Sir Michael did that and if indeed he was able to demonstrate to the satisfaction of the tribunal that there were questions of interpretation and application of a constitutional law, the tribunal could have had the matter referred to the Supreme Court under s. 18(2) of the Constitution. That would have been possible after having establishing the relevant facts giving rise to the questions of constitutional law interpretation and application. This the tribunal could have done had Sir Michael also persuaded the tribunal that the questions he was raising were not trivial, not vexatious and not irrelevant. If however, the tribunal declined to make such a referral, Sir Michael could have taken this up by judicial review to the National Court and from there, if still not satisfied, to this Court provided he had good grounds.

(b)	 Applying the Law to the Present Case

106.	Having discussed the question of proper pleadings, we now consider it appropriate that we should examine each of the matters Sir Michael raises in his Originating Summons. We have already set out in earlier parts of this judgment the material parts of Sir Michael's Originating Summons .

107.	The first observation we make is this. Except for the last usual catch all phrase and issue of costs which are the last two reliefs, the substantive reliefs sought are in the form of declaratory orders. We accept the Ombudsman's submissions that, the true nature of the orders sought are in the nature of a certiorari. Relieves (1) to (5) appear to be merely declaratory orders. But on closer examination, it is obvious it has been set out that way to make it look like only declaratory orders are being sought. However, we note also that, they ultimately lead to the relief sought in term (6), which seeks to effectively bring into this Court the proceedings and decisions of the Ombudsman and quash them.

108.	The law is settled as reaffirmed and clarified by the decision of this Court in Telikom PNG Ltd v. ICCC & Digicel (PNG) Limited (supra) . Where a party is aggrieved by a decision of a public authority and wishes to have that decision brought into Court and quashed the correct process is by judicial review under O.16 of the NCR. However, if a party only wants a declaration and injunctions; it can proceed by a simple originating summons under Order 4 or Order 16. 

109.	It should follow therefore that, Sir Michael should have proceeded by judicial review under O.16. This is important from a more constitutional foundation as well. Section 217 (5) and (6) the Constitution clear stated that:

"(5) In the performance of its functions under Section 219 (functions of the Commission) the Commission is not subject to direction or control by any person or authority.

(6) The proceedings of the Commission are not subject to review in any way, except by the Supreme Court or the National Court on the ground that it has exceeded its jurisdiction."
 (Underlying ours)

110.	It is plainly clear that, the founding fathers of our Constitution intended that, the Ombudsman should be an independent authority not subject to the direction or control of anybody including, in our respectful view, any appeals or reviews by any court or tribunal except as provided for in s. 217 (6). This provision we note is unlike for instance s. 220 of the Organic Law on Organic Law on National and Local-level Government Elections which reads:

"A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way."

111.	In the case of the latter provision, it is now well settled law that, this, provision does not preclude the Supreme Court's supervisory review powers under s. 155 (2) of the Constitution. This is the case because it is now well accepted that, the word "appeal" as it appears in this provision does not include review so as to exclude the Supreme Court's inherent power to review under s. 155(2). It is also well accepted law that, a right of appeal is not automatic or comes under the inherent review powers. Such a right can only be created and granted by statute, which must be exercised in accordance with the law creating and giving that right.

112.	Here in the case of decision of the Ombudsman there is no creating of a right of appeal or a granting of a cause of action against any decision of the Ombudsman. The only recourse is under s. 217 (6) of the Constitution which is review. But such review is not an open door for one to go for on all or any of the established grounds for review. It is restricted to only cases of the Ombudsman acting in access of its jurisdiction. This is very important and necessary for the proper administration, leadership and accountability of and by leaders. Appeals and reviews result in unnecessary delays which lead to a build up in frustration, anxiety and ultimately a lack of trust and confidence in the system of government and leadership thereby laying the foundation for an erosion of our system of government which would in turn lead to anarchy and chaos. This is possible because for instance, delays allow for the sort of things we observed in the earlier parts of this judgment regarding unnecessary interventions by the Court in an investigation and administrative process occurring.

113.	Hence it is that important and given that importance, if anyone wishes to challenge the decision of the Ombudsman, such a person needs to come within the four corners of s. 217 (6) by judicial review only. 

114.	The nature of judicial review has been the subject of a number of decisions, as in Kekedo v. Burns Philip & Ors; Chan v. Ombudsman Commission; Ombudsman Commission v. Peter Yama. In the Kekedo matter, Kapi DCJ as he then was stated: 

 "The circumstances under which judicial review may be available are where the decision making authority exceeds its powers, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached or abuse its powers. The purpose of judicial review is not to examine the reasoning of the subordinate authority with a view to substituting its own opinion. Judicial review is concerned not with the decision but the decision making process".

115.	Subsequently, this Court in its decision in Ombudsman Commission v. Yama (supra) the Court held:

"Proper matters subject of judicial review are illegality, procedural impropriety and irrationality or unreasonableness. The plaintiff must come to the Court promptly if he or she is genuinely aggrieved. 'The right person must apply for an appropriate remedy against the right person at the right time and the Court must be persuaded to grant the remedy… 

116.	The Ombudsman is an administrative decision making body. It is an institution set up by law to operate within its specific constitutional jurisdiction and is a public body tasked with a specific duty and or responsibility. Accordingly, as was held in Ombudsman Commission of Papua New Guinea v. Dennis Donohoe, it is bound to observe the principles of natural justice and ensure that it functions within its powers and functions. Its decisions are subject to judicial review within the parameters of s. 217(6) of the Constitution, which restricts the ground for review to only cases of the Ombudsman exceeding its jurisdiction or acting beyond its powers. 

117.	This Court emphasised this limited way in which one can challenge the decision of the Ombudsman in Ombudsman Commission v. Peter Yama (supra), where the Court said: "Under Constitution, Section 217(6), the Commission's decision is reviewable solely on the ground that it exceeded its jurisdiction." The Court then cited its earlier decision in Ombudsman Commission v. Dennis Donohoe (supra) where Amet J (as he then was) said:

"I accept that s 217(6) vests in the Ombudsman Commission a privilege or an immunity from review by the Courts except on grounds of excess of jurisdiction…"

118.	In Bernard Hagoria v. The Ombudsman Comimssion (supra), and Dan Kakaraya v. The Ombudsman Commission (supra), Kandakasi J referred to s 155(3)(b) of the Constitution and O.16 of the NCR as conferring upon the National Court power to judicially review and supervise the exercise of all administrative decisions. His Honour further noted that s. 155(3)(b) is subject to s 155(3)(e) of the Constitution which says "except where the power of review is removed or restricted by a Constitutional Law or an Act of the Parliament."

119.	Hartshorn J. in Honourable Patrick Pruaitch MP v. Chronox Manek & Ors added that:

"Consequently, a combined reading of s 155(3)(e), s217(6) Constitution and s 24 OLOC results in the power of the National Court to review the proceedings of the Commission being restricted to cases where the Commission exceeds its jurisdiction. Kandakasi J further notes that s 155(3)(e) was not considered in Donohoe's case (supra). I further note that it does not appear that s. 155(3)(e) was considered in Yama's case (supra)."

.....

I respectfully agree with the reasoning and conclusions of Kandakasi J. in Hagoria (supra) and Kakayara (supra). I note however that s 155(5) Constitution provides that:

'In a case referred to in Subsection (3)(e), the National Court has nevertheless an inherent power of review where, in its opinion, there are overriding considerations of public policy in the special circumstances of a particular case.'"

120.	Hence the most important and relevant question to ask when a review is sought against any decision of the Ombudsman is as Hartshorn J., puts it in the Patrick Pruaitch case (supra), whether the applicant has demonstrated that he has an arguable case that the Ombudsman has exceeded its jurisdiction? 

121.	There can be no argument therefore that, according to section 217 (6) both the Supreme and the National Courts have the power to review the decisions of the Ombudsman only on the specified ground of the Ombudsman exceeding its jurisdiction. This is understandable because the decisions of the Ombudsman are not final. Someone else makes the final decision. In the case of a leader being charged for misconduct in office, a leadership tribunal is the body that makes the final decision, which is itself subject to judicial review and the right of an appeal to the Supreme Court from there. As we already observed, the restriction on review or appeal is necessary to allow for prompt investigations, hearings and disposal of allegations of misconduct in office by leaders, which is necessary for good administration and governance.

122.	In terms of where should a person affected by a decision of the Ombudsman go for a review, s. 217 (6) appears to give concurrent jurisdictions to both the National Court and this Court. Section 155 provides for the respective judicial powers or jurisdictions of both the Supreme and National Courts. 

123.	There are already judicial pronouncements in our jurisdiction in a case of concurrency of jurisdiction in a higher and lower authority. Those authorities suggest that, it would be preferable and does make sense to start with the lower authority. In that way, a plaintiff would retain a right of further review or appeal or commencement of fresh proceedings as the case might be. This was highlighted by Amet J. (as he then was) in Graham Rundle v Motor Vehicles Insurance (PNG) Trust (No 1). 

124.	In this regard we observe that, s. 155 (2) and (3) make specific reference in relation to both the Supreme and National Courts' judicial review powers. In the case of the Supreme Court, subsection (2) (b) says the Supreme Court "has an inherent power to review all judicial acts of the National Court". Then in the case of the National Court subsection (3) says the National Court "has an inherent power to review any exercise of judicial authority" (Emphasis added). It is obvious that, the power of judicial review vested in the Supreme Court is limited only to review of the decisions of the National Court. On the other hand, the power of judicial review vested in the National Court is far wider in that it is authorized to review "any exercise of judicial authority" subject only to the exceptions noted under paragraphs (c), (d) and (e). 

125.	It would thus logically follow that the limited power of judicial review under s. 217 (6) of the Constitution is a power which the National Court should exercise at the first instance. This view makes a reading of s. 155(2) (b) and s. 217(6) harmonious rather than rendering or confirming what appears to be an inconsistency in these provisions. 

126.	Accordingly, we are of the view that, it would be more appropriate for a person who is aggrieved by a decision of the Ombudsman to commence his proceedings at the National Court. As we noted earlier, the exclusive jurisdiction of the Supreme Court under s. 18 of the Constitution is subject to the Constitution itself. In this instance, it means the exclusive jurisdiction under s. 18 (1) is subject to s. 155 (2) (b) and (3) (a) as well as s. 217 (6) of the Constitution. This means, in so far as it concerns a review of the decision of the Ombudsman, it can only be on grounds of the Ombudsman exceeding its powers. The forum to seek that review would be the National Court which is given expressly the power to review all exercise of any judicial authority such as that of the Ombudsman as opposed to the Supreme Court which is restricted to reviewing the judicial acts of the National Court. 

127.	Indeed, for the reasons we have just given above, it would be more preferable if the proceedings are first commenced in the National Court. To that we add that, administratively and more substantively, it would make much sense to commence proceedings out of the National Court because, it is the Court of first instance. It can help determine the relevant facts if a question of constitutional law interpretation and application arise out of a factual setting. This would avoid the empanelling of a full Supreme Court and then arrange and allow for a single judge of the Supreme Court to inquire into the relevant facts arrive at a decision on the facts, which may be subject of an appeal or a review before the matter reverts to the full court or this might result in a final decision that there is no question of interpretation and application of a constitutional law. Obviously, going directly via the Supreme Court way would be a long drawn out process resulting in much delay and costs and might even result in mistrials associated with empanelling of a full Supreme Court due to say deaths or otherwise a member of the full Court ceasing to be a judge. 

128.	We note the practice to date is that, all challenges against the Ombudsman decision has been by way of judicial review with most of them initiated out of the National Court. In the case of John Mua Nilkare v .Ombudsman Commission, for example when the issue of right to be heard under the Organic Law on the Ombudsman Commission and the OLDRL arose, it proceeded as an ordinary judicial review proceeding. Similarly, the challenges in Raho Hitolo v. Ila Geno (supra) and Julius Chan v. Makena Geno & Anor, which dealt with issues under s.19 of the OLDRL, proceeded as ordinary judicial review proceedings.

(c)	Decision on the Constitutional Law Question

129.	The end result of all of these is that Sir Michael is precluded by s.217 (6) of the Constitution from bringing any challenges against the decision of the Ombudsman. The only remedy he has is by way of the limited right of review under s. 217 (6). Under the prevailing practice but until this decision, there was nothing preventing Sir Michael from proceeding by way of a judicial review under that provision. 

130.	Now turning specifically to the orders Sir Michael seeks, we note in respect of each of them as follows:

Paragraph 1
We first note that, there is no statement of a question of interpretation and application of a constitutional law as such. The second thing we note is that, the relief is premised on there being a conflict in s.217 (1) of the Constitution and s. 19 of the OLDRL. These provisions read:

Section 217 (1)

"...There shall be an Ombudsman Commission, consisting of a Chief Ombudsman and two Ombudsmen."

Section 19 of the Organic Law on Leadership

"19. Appointment of investigating authorities.

(1) The Ombudsman Commission may, where it is itself unable for any reason to conduct an examination or investigation referred to in Section 17, appoint one or more constitutional office-holders to carry out the examination or conduct the investigation and to report to it on the results of the examination or investigation.

(2) An examining or investigating authority appointed under Subsection (1) has, for the purposes of carrying out any examination or investigation in respect of which it is appointed, all the powers of the Commission necessary to enable it to carry out the examination or conduct the investigation including in the case of an investigation the powers referred to in Sections 20, 21, and 22." 

These provisions are very clear. Section 217 (1) says the Ombudsman consists of the Chief Ombudsman and two other ombudsmen. Section 19 of the OLDRL does not provide to the contrary but it provides as to what the Ombudsman can do in the exercise of its powers and functions. There is no apparent conflict that requires an interpretation and application of a constitutional law. As the Ombudsman says through counsel, there is no issue on who constitutes the Ombudsman. If there is an issue, it must be on the facts which Sir Michael is required to establish to the satisfaction of the Court whereupon it will be only a matter of application of these provisions without requiring any interpretation. This therefore does not raise any question of interpretation and application of a constitutional law. 

Further, until the factual circumstances in which any question of interpretation and application of a constitutional law arises are clearly established, no questions of interpretation and application of a constitutional law exists here.

Paragraph 2
Firstly, we note there is no statement of a question of interpretation and application of a constitutional law. Secondly we note it is making a factual allegation that, the then Chief Ombudsman, Mr, Ila Geno acted alone and thus acted ultra vires when he made a decision to refer Sir Michael to the PP. Noting what we said above, this is a matter that will turn on the facts and a straight forward application of provisions of s. 217 (1) of the Constitution. Thirdly, we note that this issue was before Hartshorn J., who found against Sir Michael. The question is therefore, res judicata save only to revisit that on proper appeal. Sir Michael did lodge an appeal which he subsequently withdrew. He has thus accepted the findings of fact by Hartshon J. Therefore, this is no longer an open issue. In any case, ultra vires actions usually form a ground for judicial review which could easily be taken up under s. 217 (6) of the Constitution and Sir Michael should have proceeded by way of judicial review and not by any other means. 

Paragraph 3
As with the first two paragraphs, we first note that there is no statement of a question of interpretation and application of a constitutional law as such is stated. Secondly, we note that there is no clear statement of the need for an interpretation of sections 17 and 19 of the OLDRL. However, the context in which this allegation is made is a follow on from paragraph 2. Those facts need to be established and once established it will only be a matter of application of the law in s. 217(1) of the Constitution and sections 17 and 19 of the OLDRL, which requires no art of interpretation. Hence, this paragraph does not raise or disclose questions of interpretation and application of a constitutional law.

Paragraph 4
We make the same observations we made in respect of the earlier paragraphs but more specifically paragraph 2. 

Paragraph 5
We make the same observations as we made in the earlier paragraphs but more particularly, paragraph 2. Additionally, we note here that, Sir Michael is pleading a breach of sections 37 and 58 of the Constitution. In respect of that, he first needs to establish the factual foundation. Secondly, s, 37 applies to persons charged with a criminal offence which are not the same for charges under the Leadership Code as determined by the decision in Anderson Agiru v. Electoral Commission and The State (supra); Gerard Sigulogo v. Leadership Tribunal. However, the Ombudsman is bound by the provisions of s. 58 of the Constitution to accord all persons it is dealing with their natural justice before it arrives at a decision especially if it is to decide against a person. The decision in Nilkare v. Ombudsman Commission and Ombudsman Commission v. Donohoe (supra) are on point. Thirdly we note that, if indeed the Ombudsman breached these provisions, then it appropriately calls for an enforcement under sections 22 and 23 of the Constitution in the National Court and not here in the Supreme Court. This is so because these provisions specifically empower the National Court and not the Supreme Court to enforce the Constitution. There is no concurrency of jurisdiction on that.

Paragraph 6
As with all the earlier paragraphs, we note firstly that, there is no statement of a question of interpretation and application of a constitutional law as such here. Secondly, also as we noted earlier, this relief is available to Sir Michael under a judicial review proceedings properly brought under s. 217(6) of the Constitution. Thirdly, we note that this relief could be granted if the factual matters mentioned in the earlier paragraphs are established, which do not require any interpretation and application of a constitutional law.

131.	Ultimately, we find that, these proceedings do not raise any question of an interpretation and application of a constitutional law to invoke the jurisdiction of the Supreme Court under s. 18 of the Constitution. Instead, we have found that these proceedings are entirely dependent on facts. Hence, the matter thus turns only on the facts. Those facts concern two questions. The first is, whether it was one, two or all three members of the Ombudsman who considered Sir Michael's case and arrived at the decision that there was a prima facie case of Sir Michael being guilty of misconduct in office and for him to be referred to the PP for prosecution? The second is, whether the Chief Ombudsman then, Mr, Ila Geno was actuated by bias when he decided to refer Sir Michael to the PP? 

132.	The Ombudsman maintains the position that the decision in question was correctly arrived at in accordance with the relevant and applying law. However, if the Court finds otherwise, it would then only be a case of applying but not interpreting the provisions of sections, 18, 19 and 217 (1) of the Constitution, sections 17 and 19 of the OLDRL and other constitutional law provisions as mentioned and referred to in these proceedings to the facts. The correct forum where this should be happening as we have already observed is the National Court which is specifically empowered by sections 22 and 23 of the Constitution to enforce the Constitution.

Decision on the whole case

133.	Going by the overall purpose and scheme of the provisions on leadership under the Constitution as well as the OLDRL as discussed above, it was proper and appropriate for Sir Michael to raise all questions concerning the Ombudsman investigations into possible breaches of the Leadership Code, through to the appointment of the leadership tribunal, only at the tribunal as clarified and reaffirmed by this Court's decision in SCR No. 3 of 2005: Reference by The Ombudsman Commission of Papua New Guinea (supra). If he did not succeed at the leadership tribunal level, it was open to him to challenge that through a judicial review to the National Court and if still not satisfied, to the Supreme Court on appeal. That was the appropriate and correct forum and processes available to him. The leadership tribunal has completed its task and since disbanded with no formal reviews filed and sought against it. Outside a proper judicial review application against the tribunals decision Sir Michael is thus at no liberty to challenge effectively what was concluded with the leadership tribunal.
 
134.	 All the other steps Sir Michael took through his lawyers and or legal counsel were all improper and were needless attempts at preventing a necessary and proper legal process from taking its proper course. The process albeit with much delay, has now been concluded with no direct challenge against its conclusion by Sir Michael. These proceedings therefore have no utility and hence been a total waste of the Court's time. Besides, we find that, these proceedings are a culmination of a history of unnecessary, improper and inappropriate steps being taken by Sir Michael through his lawyers without having any factual and or legal foundation and merit. Clearly, all the steps Sir Michael has taken in these proceedings through his lawyers amount to an abuse of the process of both this Court and the National Court. Not only that, his conduct through his lawyers goes against good administration and good governance. 

135.	For these reasons, we have no hesitation in ordering a dismissal of these proceedings with costs to the Respondents. Those costs are to be agreed if not taxed.

___________________________
Vergil Narokobi, in House Lawyers: Lawyer for Applicants/Respondents
Posman Kua Aisi Lawyers: Lawyers for the Respondent/Plaintiff