SC1516

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 2 OF 2016

REFERENCE PURSUANT TO CONSTITUTION, SECTION 18(2), RE INTERPRETATION OF SECTION 169(4) (c) OF THE CONSTITUTION

BETWEEN
THE HONOURABLE BELDEN NAMAH MP,
MEMBER FOR VANIMO GREEN OPEN
Plaintiff

V

A TRIBUNAL COMPRISING 
THE HONOURABLE JUSTICE GOODWIN POOLE, 
SENIOR MAGISTRATE MARK SELEFKARIU AND 
SENIOR MAGISTRATE ERNEST WILMOT
First Defendants

PONDROS KALUWIN, PUBLIC PROSECUTOR
Second Defendant

OMBUDSMAN COMMISSION OF PAPUA NEW GUINEA 
Third Defendant

THE HONOURABLE GRAND CHIEF SIR SALAMO INJIA KT, GCL, CHIEF JUSTICE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Cannings J, David J, Polume-Kiele J
2016: 20 June, 26 July 

CONSTITUTIONAL LAW – reference of question of constitutional interpretation and application to Supreme Court, Constitution, Section 18(2). 
	
CONSTITUTIONAL LAW – certain questions “non-justiciable” – circumstances in which a question of law or fact is non-justiciable. 

CONSTITUTIONAL LAW – appointment by Chief Justice of members of a leadership tribunal – circumstances in which Chief Justice “unable to act”  – whether “unable to act” includes circumstances in which Chief Justice has conflict of interests – whether Chief Justice being alleged victim of misconduct and potential witness gives rise to conflict – Constitution, Section 169(4)(c). 

During the course of National Court proceedings in which a leader challenged various decisions resulting in appointment of a leadership tribunal to inquire into allegations of misconduct in office against him, the National Court referred to the Supreme Court a question of constitutional interpretation and interpretation: was the Chief Justice, in the circumstances of the case “unable to act” to appoint the members of the tribunal. The circumstances were that the Chief Justice was an alleged victim of one of the allegations of misconduct in office and a potential witness in the leadership tribunal proceedings and appointed the members of the tribunal. The Supreme Court heard the reference. The leader, who was the plaintiff in the National Court proceedings, argued the affirmative case: yes, the Chief Justice was unable to act as he was in a conflict of interests and a reasonable apprehension of bias had arisen. The tribunal, the Public Prosecutor and the Ombudsman Commission, who were defendants in the National Court proceedings, argued as preliminary issues that the question referred by the National Court should not be answered as it was “non-justiciable” and trivial and vexatious, and, if it were answered, argued the negative case: no, the Chief Justice was not unable to act, as the term ”unable” referred only to inability arising from physical or mental infirmity and the Chief Justice was not in a conflict of interest and no reasonable apprehension of bias arose.

Held:

(1)	The Supreme Court did not decline to give an opinion. The question referred was not non-justiciable. Nor was it trivial or vexatious.

(2)	The term “unable to act” in Section 169(4) is not restricted to inability due to physical or mental infirmity. If the Chief Justice is in a conflict of interests he will be “unable to act”.

(3)	The appointment by the Chief Justice of members of Leadership Tribunal is an exercise of administrative power, involving discretion as to who to appoint and the timing of the appointment. 

(4)	The fact that the Chief Justice was the alleged victim of one of the allegations of misconduct in office and a potential witness did not put him in a conflict of interests when he appointed the members of the tribunal. Nor did it give rise to a reasonable apprehension of bias. There was no other reason Chief Justice could not appoint the members of the tribunal.

(5)	The answer to the question – was the Chief Justice unable to act? – is no. 

Cases cited

The following cases are cited in the judgment:

Application for Disqualification of Judge in HROI No 1 of 2014 (2014) N5529
Boateng v The State [1990] PNGLR 342
Bona v Kidu [1992] PNGLR 316
Chan v Investigating Authority [1988] PNGLR 43
Namah v Tribunal (2015) N6108
Namah v Tribunal (2015) N6121
Patterson Lowa v Wapula Akipe [1991] PNGLR 265
Re Constitution, Section 169(4) (c) (2016) SC1508
Re Election of Governor-General (No 2) (2004) SC728
Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership Tribunal (2008) SC1011
Reference by the East Sepik Provincial Executive (2011) SC1154
Special Reference by the Morobe Provincial Executive (2010) SC1085
Wari v Ramoi & Sir Kingsford Dibela [1986] PNGLR 112

REFERENCE

This is the determination of a question of constitutional interpretation and application referred to the Supreme Court by the National Court under Section 18(2) of the Constitution.

Counsel:

G J Sheppard & G Purvey, for the Plaintiff
E Isaac for, the first Defendant
L P Kandi for, the second Defendant
M Efi for, the third Defendant
E Minimbi, for the fourth Defendant

26th July, 2016

1.	BY THE COURT: A question of constitutional interpretation and application has arisen in proceedings before the National Court and has been referred by the National Court under Section 18(2) of the Constitution to the Supreme Court. The question is:

Was the Chief Justice, in the circumstances of this case, “unable to act” by operation of Section 169(4) (c) of the Constitution to effectively exercise his powers, functions, duties and responsibilities under Section 27(7) (e) of the Organic Law on the Duties and Responsibilities of Leadership?

NATIONAL COURT PROCEEDINGS

2.	In the National Court proceedings, OS (HR) No 8 of 2015, the plaintiff, the Honourable Belden Namah MP, seeks amongst other things declarations and injunctions to permanently restrain the proceedings of a leadership tribunal that has been appointed by the Chief Justice to inquire into allegations of misconduct in office against him. The plaintiff relies on various grounds, including, that:

•	the Chief Justice unlawfully appointed the tribunal under Section 27(7) (tribunals) of the Organic Law on the Duties and Responsibilities of Leadership, contrary to various provisions of the Constitution, including Sections 27 (responsibilities of office), 59 (principles of natural justice) and 169 (appointment etc of the Chief Justice);

•	the manner in which the tribunal has acted (including contesting the originating summons and communicating with the Public Prosecutor without the plaintiff’s knowledge and consent) gives rise to a reasonable apprehension that the tribunal is biased against the plaintiff; 

•	the tribunal breached its duty under Section 18(2) (original interpretive jurisdiction of the Supreme Court) of the Constitution, to refer constitutional questions arising before it, to the Supreme Court;

•	the plaintiff’s right to the full protection of the law under Section 37 (protection of the law) of the Constitution has been breached;

•	the plaintiff’s right to protection against harsh and oppressive and otherwise proscribed acts under Section 41 (proscribed acts) of the Constitution has been breached.

PARTIES 

3.	Mr Namah is the plaintiff in the National Court proceedings. The other parties are:

•	First defendant		:	Leadership Tribunal
•	Second defendant		:	Public Prosecutor
•	Third defendant		: 	Ombudsman Commission
•	Fourth defendant		: 	Chief Justice 

4.	Those parties are also parties to the Supreme Court reference. For the sake of convenience, it has been decided that the parties will continue, in the Supreme Court proceedings, to carry the descriptions ascribed to them in the National Court proceedings. 

REFERENCE 

5.	At the interlocutory stage of the National Court proceedings, Acting Justice Koeget, on 2 February 2016, referred the question stated above, to the Supreme Court, under Section 18(2) of the Constitution. The question relates to interpretation and application of two provisions of the Constitutional Laws: 

•	Section 169(4)(c) of the Constitution; 

•	Section 27(7) (e) of the Organic Law on the Duties and Responsibilities of Leadership. 

6.	Section 18(2) of the Constitution states:

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.

7.	Section 169(4)(c) of the Constitution falls within Section 169, which states:

(1)	An office of Chief Justice of Papua New Guinea is hereby established.

(2)	The Chief Justice shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after consultation with the Minister responsible for the National Justice Administration.

(3)	In addition to his other powers, functions, duties and responsibilities, the Chief Justice, after consultation with the other Judges, is responsible for the organization of the affairs and the administration of the business of the Supreme Court and the National Court (other than, except to the extent allowed by or under an Act of the Parliament, matters relating to the National Public Service).

(4)	Where-

(a)	there is a vacancy in the office of Chief Justice; or
(b)	the Chief Justice is absent from the country or is absent from duty; or
(c)	the Chief Justice is unable or unavailable to act; or
(d)	the Chief Justice so directs,

the powers, functions, duties and responsibilities (other than as acting Governor-General) of the Chief Justice may be exercised and performed by the next most senior Judge who is available.

(5)	The question, whether the occasion for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge under this section has arisen or has ceased, is non-justiciable.  [Section 169(4) (c) underlined.]

8.	Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership is the provision that required in the circumstances of this case the Chief Justice (or the next most senior Judge, if the Chief Justice was unable or unavailable to act), to appoint a Leadership Tribunal consisting of a Judge and two senior magistrates. This is because the plaintiff is the holder of an office subject to the Leadership Code that does not fall within Sections 27(7) (a) to (d) of the Organic Law.  

9.	Section 27(7) (e) falls within Section 27 of the Organic Law, which states:

(1)	If the Ombudsman Commission is satisfied that a person to whom this Law applies is guilty of misconduct in office, it shall refer the matter, together with a statement of its reasons for its opinion—

(a)	to the Public Prosecutor; or
(b)	to the appropriate tribunal referred to in Subsection (7).

(2)	If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter, together with the statement of the Ombudsman Commission, to the appropriate tribunal referred to in Subsection (7).

(3)	Where a matter has been referred to the Public Prosecutor under Subsection (1) and the Public Prosecutor has failed to refer it to the appropriate tribunal or the Ombudsman Commission is of the opinion that the matter has not been properly referred to the appropriate tribunal, the Commission may refer the matter, together with a statement of its reasons for its opinion, to the appropriate tribunal referred to in Subsection (7).

(4)	The tribunal shall make due inquiry into the matter referred to it, with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48), and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

(5)	If the tribunal finds that a person to whom this Law applies is guilty of misconduct in office, it shall recommend to the appropriate authority that—

(a)	he be dismissed from office or position; or
(b)	as permitted by Section 28(1A) (further provisions relating to the Leadership Code) of the Constitution and in the circumstances set out in that subsection—some other penalty provided for by an Act of the Parliament be imposed.

(6)	The tribunal shall announce its decision in public, and shall send a copy of the decision to the Speaker, for presentation to the Parliament, and to the National Executive Council and, in the case of a Judge, a Law Officer or the Chief Magistrate, to the Judicial and Legal Services Tribunal.

(7)	For the purposes of this section—

"the appropriate authority" means, in relation to a person to whom this Law applies, the authority to whom, in accordance with Section 28(1)(g)(ii) or Section 28(1A) of the Constitution, a recommendation under that provision in relation to him should be made;

"the appropriate tribunal" means—

(a)	in the case of alleged misconduct in office by the Chief Justice—the tribunal referred to in Section 179 (removal from office of Chief Justice) of the Constitution; or
(b)	in the case of alleged misconduct in office by a Judge, a Law Officer or the Chief Magistrate—the tribunal referred to in Section 180 (removal from office of other Judges, etc) of the Constitution; or
(c)	in the case of alleged misconduct in office by any other constitutional office-holder—the tribunal established by Section 3 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders; or
(d)	in the case of alleged misconduct in office by the Prime Minister—a tribunal appointed by the Chief Justice, consisting of a Chairman and two other members, all of whom must be—

(i)	Judges or former Judges of the National Court; or
(ii)	former Judges of the pre-Independence Supreme Court of Papua New Guinea; or
(iii)	Judges or former Judges of an equivalent court of a country that has a legal system similar to that of Papua New Guinea;

(e)	in any other case—a tribunal consisting of a Judge (who shall be the Chairman) and two senior magistrates appointed by the Chief Justice.

(8)	The Judicial and Legal Services Commission shall determine the matters referred to in Paragraph (d) (iii) of the definition [of] "the appropriate tribunal". [Section 27(7) (e) underlined.]

CIRCUMSTANCES OF THIS CASE

10.	On 9 April 2015 the Ombudsman Commission notified Mr Namah, in a letter addressed to him, of its intention to refer a matter concerning him, being 15 categories of allegations of misconduct in office, to the Public Prosecutor for prosecution before a leadership tribunal. The 15 categories of allegations were described as:

1.	Interference with administrative process – suspension of District Administrator, Conrad Tilau.
2.	Alleged misapplication of K10 million from Sandaun Free Trade seed money.
3.	Purchase of Samoa properties using seed money.
4.	Non-declaration of property at Section 221, Allotment 5, Boroko, National Capital District.
5.	Providing misleading information to the Ombudsman Commission.
6.	Late submission of annual statement for the period 6 August 2007 to 5 August 2008.
7.	Alleged late submission of annual statement for the reporting period 6 August 2008 to 5 August 2009.
8.	Non-settlement of liability and non-declaration of liability in the annual statement.
9.	Late submission of annual statement for the period 6 August 2009 to 5 August 2010.
10.	Late submission of annual statement for the period 6 August 2010 to 5 August 2011.
11.	Non-submission of annual statement for the reporting period 6 August 2011 to 5 August 2012.
12.	Improper conduct and abuse of power when you stormed the Supreme Court and National Court building.
13.	Failure to lodge financial returns to the Office of Political Parties and Candidates Commission as winning candidates for the 2012 general election.
14.	Outstanding debt of K11, 259.42, Newton Pacific & Associates (PNG) Ltd, trading as Hertz Rent-a-Car.
15.	Failure to submit on time annual statements for the period 6 August 2012- 5 August 2013. 

11.	The Chief Justice is the subject of one of the categories of allegations of misconduct in office. Category No 12, under the heading “Improper conduct and abuse of power when you stormed the Supreme Court and National Court building”, stated:

You are alleged to have stormed into the Supreme Court and National Court premises at Waigani, National Capital District and entered courtroom No. 3 in the company of other members of Parliament with Police and Defence Force personnel on 24 May 2012 while the Supreme Court was in session.

You are alleged to have shouted and ordered for the arrest of Chief Justice of Papua New Guinea, Sir Salamo Injia, Kt. Members of the Police and Defence Force chased the Chief Justice and assaulted his associate and broke down the courtroom door before the Judge’s chambers. The Chief Justice was arrested by police upon your instructions, he was charged and later released on bail on his own recognisance.

You are also alleged to have disturbed the Supreme Court proceedings in SCR 1 of 2012 and SCR 2 of 2012 on the contempt allegations against you.

The members of the Police and Defence Force personnel, who accompanied you, caused extensive damage to properties and assaulted officers of National Judicial Staff Services.

12.	On 13 April 2015 the Ombudsman Commission referred the matter concerning Mr Namah to the Public Prosecutor.

13.	On 14 August 2015 the Public Prosecutor requested the Chief Justice to appoint a leadership tribunal to hear and inquire into the allegations of misconduct in office against Mr Namah.

14.	On 9 October 2015 the Chief Justice appointed the leadership tribunal, constituted by Justice Poole and senior Magistrates Selefkariu and Wilmot, to make due inquiry into the allegations of misconduct in office against Mr Namah. 

15.	On 26 October 2015 the tribunal convened for the first time. The plaintiff put to the tribunal that it should refer the constitutional question that is the subject of the present reference to the Supreme Court. 

16.	On 27 October 2015 the tribunal declined to do so. It adjourned its proceedings to 3 November 2015 to amongst other things receive the referral to it from the Public Prosecutor.

17.	On 28 October 2015 the plaintiff commenced the National Court proceedings, OS (HR) No 8 of 2015, from which the question before us was referred. 

18.	On 5 November and 20 November 2015 the National Court (Cannings J) refused separate applications in OS (HR) No 8 of 2015 by the plaintiff to refer the constitutional question to the Supreme Court (Namah v Tribunal (2015) N6108 and Namah v Tribunal (2015) N6121).

19.	However, on 29 January 2016, after considering a further application by the plaintiff in OS (HR) No 8 of 2015 to refer the constitutional question to the Supreme Court, Koeget AJ ordered that the question would be referred.

20.	On 2 February 2016 Koeget AJ referred the question that is now before the Supreme Court for determination.

POSITIONS OF THE PARTIES

21.	The positions of the parties on the question referred – “Was the Chief Justice, in the circumstances of this case, unable to act ...?” – are:

Hon Belden Namah MP	Leadership Tribunal	Public Prosecutor	Ombudsman Commission	Chief 
Justice	
Yes	No	No	No 	No position 	

THE AFFIRMATIVE CASE

22.	It is contended by Mr Namah that the Chief Justice was unable to act, and therefore the question should be answered yes, for the following reasons:

•	The term “unable to act” includes inability arising for legal, not only factual, reasons.

•	The Chief Justice was in a conflict of interests. On the one hand he was the “victim” in the primary and most serious allegation of misconduct in office (the category 12 allegation), in that it was alleged that Mr Namah stormed into a courtroom in which his Honour was presiding and attempted to assault him and have him arrested; and his Honour is therefore a potential witness to that alleged incident, before the tribunal. On the other hand, the Chief Justice was asked by the Public Prosecutor to, and did in fact; appoint the members of the tribunal to inquire into allegations relating to that very incident.

•	The Chief Justice’s legal inability to act is underscored by Section 27(1) of the Constitution, which requires all persons subject to the Leadership Code, including the Chief Justice, to avoid conflicts of interests. Section 27(1)(a) relevantly provides: 

A person to whom this Division applies [a leader] has a duty to conduct himself in such a way, both in his public or official life and his private life, and in his associations with other persons, as not ... to place himself in a position in which he has or could have a conflict of interests or might be compromised when discharging his public or official duties. 

•	The existence of a conflict of interests gave rise to a reasonable apprehension of bias. According to the principles set out by the Supreme Court in the leading case Boateng v The State [1990] PNGLR 342, a reasonable and fair-minded person knowing all the relevant facts (especially that the Chief Justice was at the centre of the primary allegation and a potential witness, and appointed the members of the tribunal who would inquire into the allegation and determine whether Mr Namah was guilty) would have a reasonable suspicion that the Chief Justice, being a victim of the alleged misconduct, might appoint persons to the tribunal who he thought would be more inclined than others to find Mr Namah guilty and that therefore the Chief Justice was biased and that the tribunal was biased, and not impartial. 

•	To have the members of a tribunal appointed by an authority – the Chief Justice – who is to be so centrally involved in the subject matter of the tribunal’s inquiry (by being a victim and a potential witness) runs afoul of the fundamental principle (recognised and enforced in Boateng, at p 346) that “not only must justice be done but it must be seen to be done”.  

•	The existence of a reasonable apprehension of bias further underscores the legal inability of the Chief Justice to appoint the tribunal. His Honour’s appointment of the tribunal in these circumstances had the effect of denying to Mr Namah:

•	the protection of the principles of natural justice under Section 59 (principles of natural justice) of the Constitution, the minimum requirement of which is, under Section 59(2) “the duty to act fairly and, in principle, to be seen to act fairly”; and

•	the full protection of the law under Section 37 (protection of the law) of the Constitution, especially under Section 37(1): “Every person has the right to the full protection of the law” and Section 37(11): “A determination of the existence or extent of a civil right or obligation shall not be made except by an independent and impartial court or other authority prescribed by law or agreed upon by the parties, and proceedings for such a determination shall be fairly heard within a reasonable time.” 

•	The Chief Justice had a discretion to exercise regarding who should be appointed to constitute the tribunal. His Honour was not a rubber stamp. The existence of such a discretion helped create in the circumstances of this case a scenario in which the reasonable suspicion of bias has arisen. 

•	As the Chief Justice was inevitably to be centrally involved in the subject matter of the tribunal proceedings, his Honour ought not to have been involved in the matter at all. His Honour ought to have, once he received the request from the Public Prosecutor to appoint the tribunal, refrained from all further involvement, including and especially appointing the members of the tribunal. His Honour ought to have taken the same approach that the members of the Ombudsman Commission were required to take in Chan v Investigating Authority [1988] PNGLR 43, a case in which the Commission, upon realising that it was “unable”, under Section 19(1) of the Organic Law on the Duties and Responsibilities of Leadership, to conduct an investigation, due to members of the Commission being in a conflict of interests, appointed under Section 19 of the Organic Law an investigating authority. Once that conflict of interests was identified, the authority was appointed and assumed the powers of the Commission, which ceased all further involvement in the matter. 

•	The doctrine of necessity did not operate to require the Chief Justice to appoint the tribunal. There was an avenue available under Section 169(4) for another Judge to step into the shoes of the Chief Justice, and appoint the tribunal.   

•	The question of whether the Chief Justice was unable to act is not non-justiciable (as contended by the defendants). 

THE NEGATIVE CASE 
23.	It is contended by the first, second and third defendants – the tribunal, the Public Prosecutor and the Ombudsman Commission – (the fourth defendant, the Chief Justice, taking no position) that the Court should decline to give an opinion on the question referred. However, if we decide to give an opinion, the answer to the question – “Was the Chief Justice, in the circumstances of this case, unable to act ...?” – should be no.

Court should decline to give opinion

24.	For two reasons we are urged not to give an opinion. 

Question is non-justiciable

25.	First it is argued that the question is non-justiciable by dint of Section 169(5) of the Constitution, which states:

The question, whether the occasion for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge under this section has arisen or has ceased, is non-justiciable.  

26.	The effect of a question being declared “non-justiciable” is addressed in Schedule 1.7 (“non-justiciable”) of the Constitution:

Where a Constitutional Law declares a question to be non-justiciable, the question may not be heard or determined by any court or tribunal, but nothing in this section limits the jurisdiction of the Ombudsman Commission or of any other tribunal established for the purposes of Division III.2 (leadership code).

27.	The first, second and third defendants argue that the question of whether the Chief Justice was unable to act is a question about whether an occasion arose for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge. The plaintiff is contending that such an occasion did arise, and that the Chief Justice’s powers, functions, duties and responsibilities ought to have been exercised and performed by the next most senior Judge who was available. The first, second and third defendants contend that such an occasion did not arise. 

28.	However the question of whether such an occasion did or did not arise and the question of whether the Chief Justice was or was not unable to act are non-justiciable and cannot be heard or determined by any court. Therefore it is argued the Court ought to refrain from hearing and determining the question and should decline to give an opinion. 

Question is trivial, vexatious and irrelevant 

29.	The first, second and third defendants argue that the Court should invoke Order 4, Rule 18 of the Supreme Court Rules 2012, which states:

The Court may decline to give an opinion on the question the subject of the reference or special reference if in the opinion [of the Court] the question is trivial, vexatious, hypothetical or unlikely to have any immediate relevance to the circumstances of Papua New Guinea.

30.	It is argued that the question referred is trivial and vexatious and unlikely to have any immediate relevance as:

•	The National Court proceedings in which the question was referred are an abuse of process. The plaintiff had engaged in a multiplicity of National Court proceedings calculated to delay the Leadership Tribunal’s inquiry. He filed the proceedings on the Human Rights track despite them not falling within the definition of “human rights proceedings” in Order 23 (human rights) of the National Court Rules.   

•	The plaintiff is attempting to use Section 18(2) of the Constitution as the basis for pleading a cause of action contrary to the principles developed by the Supreme Court in Patterson Lowa v Wapula Akipe [1991] PNGLR 265. 

Answer should be no

31.	If we are unpersuaded by the above two preliminary arguments to decline to give an opinion, the first, second and third defendants contend that the opinion we ought to provide is that:

•	the Chief Justice was not in the circumstances of this case unable to act;

•	his Honour was able to act, and appoint the members the tribunal; and therefore 

•	the question should be answered no. 

32.	The first, second and third defendants argue the following propositions:

•	The term “unable to act” in Section 169(4) of the Constitution has a restricted meaning. It is confined to inability arising from physical or mental infirmity or other similar condition. The notion of inability to act relates to the notion of inability as a ground for removal from office of a Judge, set out in Section 178 (grounds of removal) of the Constitution, which states:

A Judge, the Public Prosecutor, the Public Solicitor or the Chief Magistrate may, during his term of office, be removed from office only—

(a)	for inability (whether arising from physical or mental infirmity or otherwise) to perform the functions and duties of his office; or
(b)	for misbehaviour; or
(c)	in accordance with Division III.2 (leadership code), for misconduct in office. [Emphasis added.]

33.	It is argued that inability to act referred to in Section 164(4) (c) is not intended to and does not include inability to act due to some legal reason such as the Judge being in a conflict of interests.

•	If the term “unable to act” in Section 169(4) does not have such a restricted meaning, it still does not apply to the circumstances of this case as the Chief Justice was not in fact or law in a conflict of interests and there was no other legal reason for his Honour being unable to act. There is no conflict in his Honour appointing the members of the tribunal and being ‘involved’ in the tribunal proceedings as a ‘victim’ or a potential witness. 

•	The Chief Justice did not act contrary to Section 27(1) of the Constitution. 

•	There was no breach of the fundamental principle that “not only must justice be done but it must be seen to be done”.  

•	There was no reasonable apprehension of bias arising from the circumstances of this case.

•	Any appearance of a conflict of interests or an apprehension of bias is diluted considerably and is insignificant due to the Chief Justice being ‘involved’ in only one of the 15 categories of alleged misconduct of office. 

•	The exercise by the Chief Justice of the power to appoint the members of the tribunal is an administrative act. His Honour had no discretion to refuse to appoint them. He was obliged to appoint them. 

•	The circumstances of this case are to be sharply distinguished from those in Chan v Investigating Authority, the case that the plaintiff relies on to argue that the Chief Justice should have had no involvement in the plaintiff’s matter. In Chan the members of the Ombudsman Commission were in an obvious conflict of interests. They could not investigate allegations of misconduct against leaders who had purchased shares in the Placer Pacific Company as two of the members themselves purchased shares in the company; therefore they properly appointed an investigating authority to inquire into the allegations. But in the present case, the Chief Justice was not in a position of conflict of interests, so there was no prohibition against his involvement in the matter by appointing the members of the tribunal. 

APPROACH

34.	We now embark on the task of answering the question referred. Our approach will be first to determine the two preliminary issues raised by the first, second and third defendants. Secondly we set out a number of propositions of law advanced by the parties that we uphold. Finally we answer the question referred. 

PRELIMINARY ISSUES 

Is the question non-justiciable?

35.	We reject the argument that the question referred is non-justiciable. We uphold the submission of Mr Sheppard for the plaintiff that the question of whether an occasion arose for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge is not before us. We have not been asked such a question. We are only asked whether the Chief Justice was “unable to act”. In the circumstances of this case, the powers, functions, duties and responsibilities of the Chief Justice were not in fact exercised or performed by another Judge, so the question of whether an occasion arose for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge has not arisen. That question has not been asked or heard and it is not necessary to determine it. 

36.	We reiterate that the only question before us is a simple and straightforward one: was the Chief Justice unable to act? It does not fall into the type of question that is under Section 169(5) of the Constitution non-justiciable. 

37.	If we were persuaded that the question before us was in fact whether an occasion arose for the exercise or performance of the powers, functions, duties and responsibilities of the Chief Justice by another Judge, we would still hear and determine it. Such a question would be a question of law. The Court is permitted, despite a question being labelled non-justiciable, to hear argument that the power, function, duty or responsibility was exercised or performed unlawfully (Wari v Ramoi & Sir Kingsford Dibela [1986] PNGLR 112, Re Election of Governor-General (No 2) (2004) SC728, Special Reference by the Morobe Provincial Executive (2010) SC1085).

Is the question trivial, vexatious or irrelevant? 

38.	We reject the argument that the question referred to us is trivial, vexatious or irrelevant. Mr Kandi, counsel for the Public Prosecutor, regurgitated the arguments put to us in support of a recent application by the Public Prosecutor to summarily determine the Reference. 

39.	We dismissed that application as it was incompetent and it failed to disclose good grounds for the question referred to us being regarded as trivial, vexatious, hypothetical or irrelevant (Re Constitution, Section 169(4)(c) (2016) SC1508). We were satisfied that the Reference was properly before us and that we were obliged to determine it. Nothing in Mr Kandi’s submissions at the hearing of the Reference persuades us otherwise. We remain so satisfied. We will not decline to give an opinion. We are obliged to answer the question. 

PROPOSITIONS UPHELD 

40.	Before answering the question, we set out a number of propositions advanced by the parties with which we agree. 

Meaning of “unable to act”

41.	We uphold the plaintiff’s argument that the term “unable to act” in Section 169(4) (c) of the Constitution includes inability arising for legal, not only factual, reasons. We see no justification for restricting the meaning of the term in the way contended for by the defendants. 

42.	The term “unable to act” in Section 169(4) (c) is not restricted to inability due to physical or mental infirmity. If the Chief Justice is in a conflict of interests he will be “unable to act”.

Nature of power exercised by Chief Justice 

43.	We agree with the contention of the first, second and third defendants that the appointment of members of a Leadership Tribunal by the Chief Justice is the exercise of an administrative, not a judicial power. 

44.	However, we disagree with the suggestion that the Chief Justice has no discretion to exercise. Though he cannot refuse to appoint the members of a tribunal, he has a discretion under Section 27(7)(e) of the Organic Law as to who he appoints, provided that the Chairman is a Judge and the two other members are senior magistrates (Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership Tribunal (2008) SC1011). He also has discretion as to the timing of the appointments (Bona v Kidu [1992] PNGLR 316). 

45.	Like any administrative discretion the power to appoint the members of the tribunal must be exercised lawfully and, unless there is some effective statutory prohibition, is susceptible to judicial review.

Doctrine of necessity 

46.	We agree with the plaintiff’s proposition that in the circumstances of this case the doctrine of necessity could not apply. We note that the first, second and third defendants did not strongly argue that it did apply, however it was tacitly part of their case that the Chief Justice was obliged by necessity to make the appointment. 

47.	The doctrine of necessity is a common law principle: an act that is otherwise not lawful is deemed lawful through necessity (see the discussion of its application in a constitutional context in Sakora J’s judgment in Reference by the East Sepik Provincial Executive (2011) SC1154). It clearly has no application in the present case. If the Chief Justice is unable to act to appoint the members of the tribunal, or if there is a vacancy in the office of Chief Justice, or if the Chief Justice is absent from the country or is absent from duty or is unavailable to act, or if he so directs, there is a clear alternative course of action available: the next most senior Judge who is available can, under Section 169(4), appoint the members. 

Conflict of interests

48.	We agree with the plaintiff’s proposition that when the Chief Justice appoints the members of a tribunal he must not place himself in a position in which he has or could have a conflict of interests. The duty of a leader to avoid a conflict of interests is a fundamental tenet of the Leadership Code.  It applies to all leaders, including the Chief Justice, under Section 27(1) (a) of the Constitution. 

49.	We agree that if the Chief Justice were to place himself in a position in which he has or could have a conflict of interests regarding the appointment of the members of a Leadership Tribunal he would indeed be “unable to act”. He would not be able to lawfully appoint them. If he proceeded to appoint them in such circumstances it is likely that a reasonable apprehension of bias would arise. It is also likely that the rights of the leader concerned to the full protection of the law and other similar rights and protections available under the Constitution, especially Sections 37 (protection of the law) and 59 (principles of natural justice) would be infringed. 

DETERMINATION OF THE QUESTION 

50.	We have decided that the answer to the question – was the Chief Justice unable to act? – is no, for several reasons. First, we are not convinced that the Chief Justice was in a conflict of interests. Secondly, we are not convinced that the Chief Justice’s involvement in the subject matter of the tribunal’s proceedings creates any reasonable apprehension of bias. Thirdly, the facts of this case are distinguishable from those in Chan v Investigating Authority [1988] PNGLR 43. Fourthly, the appointment of the members of the tribunal by the Chief Justice does not mean that justice will not be seen to be done. 

“Conflict of interests” 

51.	None of the parties referred us to a legal definition of this term. Though it is a key term in the context of the Leadership Code it is not expressly defined anywhere. So, when is a person in a conflict of interests? We proffer this description: where a person, in exercising or performing a power, function, duty or responsibility, has:

•	a personal interest in the subject matter; or 

•	an obligation to advance or protect the interests of more than one person, in circumstances where those interests are in conflict.

52.	We do not consider that the fact that the Chief Justice was a victim of the alleged misconduct of the plaintiff gave him a personal or vested interest in the subject matter of the tribunal’s proceedings. 

53.	We do not agree that the Chief Justice is conflicted by on the one hand being an alleged victim and a potential witness and on the other hand being the appointing authority for the tribunal. 

Involvement   

54.	We are not persuaded that the Chief Justice’s involvement in the subject matter of the tribunal’s proceedings would give rise to an apprehension, in the mind of a reasonable person, of bias against the plaintiff by the Chief Justice or by the members of the tribunal. A reasonable person, with knowledge of the background of the matter and an appreciation of how courts and tribunals operate in Papua New Guinea, would, we suggest, understand and appreciate, that:

•	leadership tribunals are established under Section 28(1)(g) of the Constitution as “independent” tribunals

•	a tribunal is not subject to direction or control by any person or authority, including the Chief Justice;

•	the fact that the Chief Justice was, on the one hand, an alleged victim of the plaintiff’s misconduct and a potential witness and, on the other hand, the appointing authority will not have any effect on how the case is decided by the tribunal;

•	the judiciary in Papua New Guinea is held in high esteem: Judges are widely regarded persons of integrity and inherently capable of acting independently and impartially (Application for Disqualification of Judge in HROI No 1 of 2014 (2014) N5529);

•	the fact that an unusual or unprecedented situation existed (the Chief Justice being an alleged victim and a potential witness) does not mean that the Chief Justice is conflicted or that a procedure other than the normal procedure for appointment of a tribunal was necessary.

Distinguishing Chan v Investigating Authority 

55.	We agree with the first, second and third defendants’ argument that the facts of the present case are in contrast to those in Chan v Investigating Authority [1988] PNGLR 43.

56.	In Chan the members of the Ombudsman Commission were in an obvious conflict of interests and it was necessary for them not to be involved further in the investigation of misconduct in office. In the present case, the Chief Justice’s involvement comes about by his being an alleged victim of the plaintiff’s misconduct and a potential witness. No one alleges misconduct against the Chief Justice, so there is nothing to prevent him discharging his powers, functions, duties and responsibilities regarding the appointment of members of the tribunal. 

Justice seen to be done 

57.	It follows, from our conclusion that there was no conflict of interests and no reasonable apprehension of bias and the distinguishing of this case from Chan v Investigating Authority, that there was nothing that, as a matter of law, made it necessary for the Chief Justice to refrain from appointing the tribunal. There was no reasonable prospect of the fundamental principle, that “not only must justice be done but it must be seen to be done”, being breached.  

CONCLUSION  

58.	The answer to the question – was the Chief Justice unable to act? – is no. The Chief Justice was able to appoint the members of the leadership tribunal. Formally, our opinion on the question of constitutional interpretation referred under Section 18(2) of the Constitution is summarised in the following table.

ANSWER TO QUESTION REFERRED
Question	Answer	
Was the Chief Justice, in the circumstances of this case, “unable to act” by operation of Section 169(4)(c) of the Constitution to effectively exercise his powers, functions, duties and responsibilities under Section 27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership?	No 	

ORDER

59.	We make the following order to give effect to the above reasons for decision:

1.	The question referred to the Supreme Court is answered in the negative.

2.	The Registrar shall forthwith convey this Order and a copy of the Judgment of this Court, to the referring Judge and to the Judge Administrator of the National Court track from which proceedings the question was referred.

3.	Subject to any specific costs order made in the course of these proceedings, the parties shall bear their own costs of the proceedings. 

4.	The file is closed. 

Judgment accordingly,

________________________________________________________________
Young & Williams Lawyers	: Lawyers for the plaintiff			 	
Bradshaw Lawyers			: Lawyers for the first defendant	
M S Wagambie Lawyers		: Lawyers for the second defendant			
Counsel to the Commission	: Lawyers for the third defendant		
Ashurst Lawyers			: Lawyers for the fourth defendant