SC1645
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 1 OF 2017

SPECIAL REFERENCE
PURSUANT TO CONSTITUTION, SECTION 19

REFERENCE BY THE OMBUDSMAN COMMISSION

IN THE MATTER OF THE CONSTITUTION, SECTION 28(5) AND 
THE ORGANIC LAW ON THE DUTIES AND RESPONSIBILITIES 
OF LEADERSHIP, SECTIONS 27(4) AND 28(1)

Waigani: Injia CJ, Kirriwom J, Kandakasi J, Batari J, Cannings J 
2017: 30 August, 22 December 

CONSTITUTIONAL LAW – Constitution, Division III.2 (leadership code) – Organic Law on the Duties and Responsibilities of Leadership, Part V (enforcement) – Section 27(4) (tribunals) – whether amendment of Section 27(4) requiring leadership tribunals to make due inquiry “with legal formalities and strict compliance with the rules of evidence …” is inconsistent with Constitution, Section 28(5): tribunal proceedings “are not judicial proceedings”. 

CONSTITUTIONAL LAW – Constitution, Division III.2 (leadership code) – Organic Law on the Duties and Responsibilities of Leadership, Part V (enforcement) – Section 28 (suspension) – timing of suspension of a leader whose matter has been referred to a leadership tribunal. 

The Ombudsman Commission filed a Special Reference to the Supreme Court under Section 19 of the Constitution seeking the Court’s opinion on three questions of interpretation and application of the Constitutional Laws regarding enforcement of the Leadership Code. Questions 1 and 2 related to a 2006 amendment to Section 27(4) (tribunals) of the Organic Law on the Duties and Responsibilities of Leadership, by which a Leadership Tribunal is now required to “make due inquiry into the matter referred to it, with legal formalities and strict compliance with the rules of evidence and the provisions of the Evidence Act”. Question 1 asked whether the amendment is inconsistent with Section 28(5) of the Constitution, which states that Leadership Tribunal proceedings “are not judicial proceedings”, and therefore invalid and ineffective. Question 2 asked, if question 1 is answered no, what the phrase “with legal formalities and strict compliance with the rules of evidence …” means. Question 3 related to the timing of suspension from duty of a leader whose matter is referred to a Leadership Tribunal, requiring interpretation of Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership, which states: “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”. The question was whether a leader is suspended: (a) when the Public Prosecutor refers the leader to the appropriate authority; (b) when the appropriate authority appoints a tribunal; (c) when the Public Prosecutor presents the reference to the tribunal; or (d) in circumstances other than the above. The Prime Minister and the Speaker of the National Parliament were granted leave to intervene and designated as first and second interveners respectively. The Ombudsman Commission (the referrer) argued that the questions be answered (1) yes; (2) no change to the standard of proof; (3) (d): when the Ombudsman Commission refers the matter to the Public Prosecutor. The Prime Minister argued that the questions be answered (1) no; (2) the criminal standard of proof should apply if the allegation of misconduct in office is tantamount to a criminal offence; (3)(c): when the Public Prosecutor refers the matter to the tribunal. The Speaker argued that the questions be answered (1) no; (2) the strict rules of evidence shall apply; (3)(d): the moment the Public Prosecutor makes the decision to refer a leader to a leadership tribunal. 

Held: 

(1)	Re question 1: by the Court: the 2006 amendment to Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership requires leadership tribunals to be conducted in the same manner that court proceedings are conducted, the practical effect being to render Leadership Tribunal proceedings “judicial proceedings”. The 2006 amendment is inconsistent with Section 28(5) of the Constitution and is therefore invalid and ineffective. The answer to question 1 is yes. 

(2)	It was unnecessary to answer question 2.  

(3)	Re question 3: by Injia CJ, Batari J & Cannings J: suspension of a leader automatically takes effect by operation of law when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the statement of reasons, to the Leadership Tribunal at a public hearing. The answer to question 3 is the scenario described in paragraph 3(c).

(4)	Re question 3: by Kirriwom J: suspension takes effect when the Chief Justice appoints the tribunal. The answer to question 3 is the scenario described in paragraph 3(b).

(5)	Re question 3: by Kandakasi J: suspension takes effect when the Public Prosecutor requests the Chief Justice to appoint the tribunal. The answer to question 3 is the scenario described in paragraph 3(a).

(6)	In summary the answers were:

Question 1: by the Court: yes, the 2006 amendment to Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is invalid, ineffective and unconstitutional.

Question 2: Unnecessary to answer.

Question 3:  by 3:2 majority (Injia CJ, Batari J and Cannings J; Kirriwom J and Kandakasi J dissenting): suspension of a leader takes effect automatically by operation of law when the Public Prosecutor refers the matter (comprising the allegations of misconduct in office and the Ombudsman Commission’s statement of reasons) to the tribunal at a public hearing.  

Cases cited

The following cases are cited in the judgment:

Application by Herman Joseph Leahy (2006) SC855
Application by Sir Makena Geno (No 1) (2015) SC1455
Application by Sir Makena Geno (No 2) (2016) SC1581
Eremas Wartoto v The State (2015) SC1411
Gelu & Paraka v Sheehan (2013) N5498
In the Matter of Grand Chief Sir Michael Somare (2011) N4224
Kamit v Cooke QC (2003) N2369
Peipul v Sheehan (2002) SC706
PLAR No 1 of 1980 [1980] PNGLR 326
Pruaitch v Manek (No 1) (2010) SC1052
Pruaitch v Manek (No 2) (2011) SC1093
Re Gerard Sigulogo [1988-89] PNGLR 384
Re Hon Michael Nali MP (2003) N2399
Re James Eki Mopio [1981] PNGLR 416
Sasau v PNG Harbours Board (2006) N3253
SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
SCR No 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693
SCR No 2 of 1982; Re Opai Kunangel [1991] PNGLR 1
Somare v Manek [2011] 1 PNGLR 220

REFERENCE

This is the determination of three questions of constitutional interpretation and application referred to the Supreme Court by the Ombudsman Commission under Section 19(1) of the Constitution.

Counsel

V L Narokobi, M Efi & P R Koralyo, for the Referrer
H Maliso, for the First Intervener
G M Egan & K R Kawat, for the Second Intervener

22 December, 2017

1.      INJIA CJ: This is a Special Reference brought by the Ombudsman Commission under Section 19 of the Constitution. The reference contains three constitutional questions for this Court’s opinion regarding certain powers and functions of the Ombudsman Commission, the Public Prosecutor and a Leadership Tribunal established under Section 28 of the Constitution and Section 27(7) of the Organic Law on the Duties and Responsibilities of Leadership (OLDRL) as amended by the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 (Amendment Law).

2.     The three questions are: 

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:
(a)	When the Public Prosecutor refers the leader to the appropriate authority?

(b)	When the appropriate authority appoints a tribunal?

(c)	When the Public Prosecutor presents the reference that is the charge and statement of reasons, to the tribunal?

[(d)] In circumstances other than the above?

3.     The first and second questions relate to an amendment to Section 27(4) of the OLDRL. The Amendment Law repealed in part Section 27(4) of the OLDRL by repealing the expression “without regard to legal formalities or the rules of evidence” and substituting it with the expression “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48)”. The question is whether the amendment is consistent with Section 28(5) of the Constitution.

4.     The third question arises from three conflicting decisions of the Supreme Court on a point of law with regard to the time when suspension of a leader under Section 28(1) of the OLDRL takes effect, namely Pruaitch v Manek  (No 1) (2010) SC1052,  Pruaitch v Manek (No 2) (2011) SC1093 and Somare v Manek [2011] 1 PNGLR 220. In those decisions, the Supreme Court constituted by different Judges was of the same view that suspension was automatic by operation of law but differed on when the suspension took effect. In Pruaitch v Manek (No 1) the Supreme Court held that suspension occurred when the Chief Justice appointed the appropriate Leadership Tribunal.  In Somare v Manek, the Supreme Court held that suspension occurred when the Public Prosecutor requested the Chief Justice to appoint the appropriate Leadership Tribunal. In Pruaitch v Manek (No 2), the Supreme Court held that suspension occurred when the Public Prosecutor actually presented the charges of misconduct in office and the statement of reasons to the appropriate Leadership Tribunal when it convened to inquire into the matter. 

5.     The answers to the three questions involve consideration of various provisions of the Constitution, the OLDRL and the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders (OLGRICOH). I have had the benefit of reading the draft judgments of Justice Kirriwom and Justice Cannings. I am indebted to them for saving me a great deal of work in setting out the relevant provisions of the Constitutional Laws, the issues raised in the Reference and the arguments of the parties.  I adopt their exposition on these matters.  

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

6.     I agree with the reasons and conclusions reached by Justice Kirriwom and Justice Cannings on this question with additional remarks of my own. I would also answer the question in the affirmative and declare the Amendment Law unconstitutional and invalid.

7.     The Amendment Law is said to offend Section 28(5) of the Constitution. I reproduce in full Section 28 and Section 29 of the Constitution as those provisions are relevant to this question. They appear in the following terms:

28.	Further provisions.

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

(a)	may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b)	shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and

(c)	shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(d)	may prescribe specific acts that constitute misconduct in office; and

(e)	may create offences (including offences by persons to whom this Division applies and offences by other persons); and

(f)	shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

(g)	shall establish independent tribunals that—

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

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

(h)	may make any other provision that is necessary or convenient for attaining the objects of this Division.

(1A)	An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that—

(a)	there was no serious culpability on the part of a person found guilty of misconduct in office; and

(b)	public policy and the public good do not require dismissal,
it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

(2)	Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

(3)	For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"—

(a)	in relation to—

(i)	a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or

(ii)	a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

means the Head of State; and

(b)	in relation to a person holding any other office to which this Division applies—means the appropriate appointing authority.

(4)	An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5)	Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and—

(a)	no such proceedings are a bar to any other proceedings provided for by law; and

(b)	no other proceedings provided for by law are a bar to proceedings under that paragraph. [Underlining is my emphasis.]

29.	Prosecution of misconduct in office.

(1)	Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).  

(2)	If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead. [Underlining is my emphasis.]

8.     The intention and purpose behind the Amendment Law is found in the speech of the Hon Francis Kunai MP who introduced the bill for debate in Parliament.  He said:

Mr Speaker, you will note my proposed amendment that the thrust of this alternative case to ensure that the tribunal considering the evidence before it must be credible and substantive in nature, as allowed under the Evidence Act Chapter 48.

Currently, we have tribunals considering evidence provided by Ombudsman Commission, which in many cases have not complied with the rules of evidence as stipulated under the Evidence Act Chapter 48. Subsequently we have seen instances where tribunals have been dragging on for months ending up with financial loss by our leaders. This does not imply that we are above the law and therefore should not be prosecuted.

Mr Speaker, that is not my contention. We, whether big or small, we must face the same law and be treated accordingly. However, when we saw the principles of natural justice must be seen to be applied and the tribunal being considered must be in compliance with the Evidence Act Chapter 48. To allow any tribunal to consider evidence without regard to legal formalities or the rules of evidence is to be absolutely biased and a total abuse of principles of justice.

Mr Speaker, members of Parliament would agree with me that with these arrangements, many of us including those already referred to by the Ombudsman Commission will have to face the under bearing consequences.

Mr Speaker, my proposed amendment, I hope would be circulated to the appropriate authorities concerned that before putting our leaders under the microscope, they should be content that evidence exhibited should be very credible, substantive and conclusive within the rules of evidence.

9.     The house was divided during the debates and on the votes. The majority that supported the amendment made brief speeches adopting the reasons given by Mr Kunai. Those who opposed the bill did not speak much except to refer to the position taken by their respective political parties.

10.     The purpose of the amendment then was to bring more fairness to leaders in the proceedings before the tribunal so that leaders were tried and found guilty on substantive and credible evidence that would be admitted applying formal rules of procedure and evidence and the Evidence Act. The application of OLDRL, Section 27(4) by Leadership Tribunals was considered to be “absolutely biased” against leaders and a “total abuse of the principles of natural justice”.

11.     Section 28(5) of the Constitution makes it clear that proceedings before a Leadership Tribunal “are not judicial proceedings” and a leader who is the subject of such proceedings is not immune from other proceedings for the same matter under any other law or that proceedings against the leaders under any other law are not a bar to proceedings over the same matter before the tribunal. It is necessary to understand proceedings that are “not judicial proceedings” and its exact opposite, proceedings that are “judicial proceedings”.  A Leadership Tribunal is a form of statutory tribunal that is charged by law with performing administrative functions. Its proceedings are, as Constitution, Section 28(5) says, not judicial proceedings. The term judicial proceedings describes the proceedings before a Court of Law. Those expressions describe the distinctive nature of the proceedings conducted by a statutory tribunal (tribunals) and those conducted by a Court of Law (Court). 

12.     The Constitution and the OLDRL do not define the expression “judicial proceedings” and “proceedings that are not judicial”. Recourse to the general law is necessary to understand what these expressions mean, even though they are well known concepts and generally understood by legislators, courts and lawyers.   

13.     The creation, powers and functions of a tribunal are the subject of administrative law and Constitutional law. Legal literature and case law on administrative law in common law jurisdictions have struggled with drawing fine distinctions along the different types of tribunals with regard to the nature and character of an inquiry or investigation conducted by them. This has led to some confusion as to the characteristics of administrative tribunals over time and that confusion continues to this day. The confusion is compounded by the evolution of a special type of tribunal known as “quasi-judicial tribunal” that brings a tribunal within the reach of the Court.  The confusion is further compounded by some statutes that confer the “quasi-judicial” function of tribunals in the Courts; and, in some instances, the quasi-judicial tribunals are regarded as “judicial” and they conduct “judicial proceedings”. 

14.     For purposes of answering the question posed in the Reference, I make some general observations regarding the essential characteristics of two common types of tribunals and the Courts. Those two types are “administrative tribunals” and “quasi-judicial tribunals”. 

15.     I commence my observations with an overarching statement on the difference between statutory tribunals and the Courts.  A tribunal and a Court are creatures of statute. A tribunal is not a Court, a Court is not a tribunal either.  Their difference is evident from the distinctive names: “Tribunal” and “Court”. Tribunals fall into two main categories: an ordinary tribunal (“administrative tribunal”) and a “quasi-judicial tribunal”. A tribunal is part of the Executive and is answerable to the Executive as to how it exercises its jurisdiction. The Court is independent of the Executive. A decision reached by a tribunal is not final until it is effected by the Executive whereas a decision of the Court is final and self-executing. A proceeding before a statutory tribunal is not a judicial proceeding; it is an “administrative inquiry” or “quasi-judicial proceeding”. A proceeding before a Court is a “judicial proceeding”. The function of a tribunal is to “inquire into” and “investigate” the facts pertaining to an allegation of wrongdoing and establish if those facts have been established and the law breached and to make the appropriate report and recommendation to the Executive who will take the appropriate action on the report. The Court sits to “hear” and “determine” the charge or complaint brought by a person and if the complaint is proved, grant the appropriate remedy that is available under law.

16.     The function of an administrative tribunal is largely investigative. It is given no power to make any conclusive findings. It has no power to make a decision on anything. It makes findings of fact to enable a decision to be made by the Executive. An administrative tribunal is constituted by persons in positions of authority and possess special knowledge and skill on the subject matter of the investigation or inquiry. The law imposes no obligation on administrative tribunals to observe the principles of natural justice in conducting its inquiry or investigation unless the tribunal is given power to make findings that will lead to a decision to be made by the Executive that will determine a person’s legal rights or obligations. The fact that the administrative tribunal is constituted by judicial officers or former judicial officers does not alter its true character as an investigative body (Gelu & Paraka v Sheehan (2013) N5498, Kamit v Cooke QC (2003) N2369, Sasau v PNG Harbours Board (2006) N3253). No further appeal or review lies to a higher executive authority or a Court from the report, recommendation or decision of an administrative tribunal.  

17.     A “quasi-judicial tribunal” is usually comprised of serving or former judicial officers, or by persons with special knowledge and expertise in the applicable law and in the field of concern to the tribunal. A “quasi-judicial tribunal” is usually empowered to “inquire into” and “investigate” a matter and apply the law to facts to reach a finding or recommendation or a decision in some cases. As those decisions may determine the legal rights or obligations of the person under investigation, the tribunal is required to observe the principles of justice throughout inquiry. The enabling statute usually gives finality to the decision of quasi-judicial tribunals and prohibits any further appeal or review to a higher Executive authority or the Courts. In some situations, an appeal or review by the Courts may be permitted, however the appeal or review hearing before the Court proceeds by way of a de novo hearing that allows the Court to maintain the “quasi-judicial” character of its hearing.      

18.     A common feature of administrative tribunals and quasi-judicial tribunals is that both are part of the Executive bodies, whose decisions are subject to the approval of the Executive. As the definition of the term “quasi-judicial proceeding” in the Oxford Dictionary of Law states: 

Adj. Describing a function that resembles the judicial function in that it involves deciding a dispute and ascertaining the facts and any relevant law, but differs in that it depends ultimately on the exercise of an executive discretion rather than the application of the law.

19.     A Leadership Tribunal is no doubt a “quasi-judicial tribunal”. It is constituted by judicial officers (or former judicial officers). Its composition makes a Leadership Tribunal a quasi-judicial tribunal that conducts proceedings as such, that is, proceedings that are not judicial proceedings.  The key words or expressions to look for in a statute are the likes of the expressions  “inquiry” “inquire into”, “investigate” or “make due inquiry into the matter”, and  “without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper”. Most of these expressions are found in in the language of the OLDRL, Section 27(4).

20.     The real difference between a quasi-judicial tribunal and a Court is found in the rules of procedure and evidence that attend to the non-judicial proceedings of a tribunal and the judicial proceedings of a Court. For instance, in the case of a Leadership Tribunal, its function is to conduct an “inquiry”, to “inquire” or “investigative”. Its proceedings are “inquisitive” in nature.  The term “inquisitive” is derived from the term “inquiry” and the term “investigative” is descriptive of the “inquiry” that is conducted by the tribunal to establish the facts concerning the allegation or complaint of misconduct. The procedure and rules under which the tribunal conducts the inquiry are matters for the tribunal to determine and apply but they are subject to the principles of natural justice being observed throughout the inquiry. There are no fixed rules of practice, procedure and evidence prescribed by law for the tribunal.  There is always a standard statutory provision in every statute that establishes a quasi-judicial tribunal, that permits  the tribunal to determine its own procedures and conduct its own proceedings in the manner it sees fit “without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper”. The pre-amended Section 27(4) of the OLDRL is a standard provision: 

The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. [My emphasis.]

21.     The findings and recommendations of the Leadership Tribunal are submitted to the Head of the Executive or the appointing authority of the leaders (which is an executive body), to give effect to the recommendation or decision. The decision of the Head of the Executive is final.     

22.     Then there are those cases in this country where the law vests the Courts with the jurisdiction of a “quasi-judicial” tribunal. The proceedings may appear to be “judicial”, however the “quasi-judicial” character of a tribunal is maintained. The decision reached by the Court is given finality and further appeal or review is prohibited. The statute law ensures that the hearing takes place in an inquisitive and investigative setting without regard to legal forms and rules of evidence. An example is the National Court which is given the jurisdiction of a Court of Disputed Returns. The name “Court” signifies the vesting of special jurisdiction on deciding election disputes in the Courts, however the real inquisitive and investigative character of this quasi-judicial jurisdiction is not altered. This is made clear in Section 217 of the Organic Law on National and Local-Level Governments when it states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. [Emphasis is mine.]

23.     By contrast, the Court conducts “judicial proceedings” in accordance with legal formalities or technicalities and rules of evidence in an adversarial and adjudicative setting. The proceedings before a Court are pitched in an adversarial setting and proceedings are strictly “accusatorial”. Only judicial officers with a current judicial commission sit in the Court and sit as a neutral referees, to “hear” the case brought before it by the parties to reach its decision, the Court guiding and directing the proceedings conducted by the parties in accordance with established procedures and rules of evidence that ensure fair play, and a decision is reached by applying the established burden and standard of proof. In criminal proceedings, the prosecution bears the onus of proving the case beyond reasonable doubt and in civil cases, the plaintiff bears the onus of proving the case on the balance of probabilities. An appeal or review lies to a higher Court from the decision of a Court of first instance. 

24.     The Amendment Law has removed the most essential characteristics of a Leadership Tribunal as a quasi-judicial tribunal and transplanted into OLDRL, Section 27(4) the rules of procedure and evidence that pertain to judicial proceedings of a Court and converted the proceedings before the Leadership Tribunal into a judicial proceeding. The amended Section 27(4) states:   

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. [Emphasis is mine.]

25.     It is to be noted that the equivalent of OLDRL, Section 27(4) in respect of appropriate tribunals appointed under Section 27(7)(a)-(c) are not affected by the Amendment Law: see Constitution, Section 181 and OLGRICOH, Section 6. There is a serious inconsistency in the nature of a hearing between leadership tribunals covered under OLDRL, Section 27(7).  

26.     I do not see how this radical transformation of a “quasi-judicial proceeding” into a “judicial proceeding” can be justified under any circumstance. The amendment obviously gives preferential treatment to leaders, the bulk of whom are elected leaders, more protection from prosecution for their misconduct as if they already do not enjoy enough protection under the law as it has been applied by Leadership Tribunals to this day. The way the proceedings before Leadership Tribunals have been conducted since Independence by applying OLDRL, Section 27(4) has been by far very fair to leaders, and arguably, favourable to leaders. Leadership Tribunals very well understand the Public Prosecutor’s “prosecution” function before it with which comes an adversarial undertone: Constitution, Section 29(1) (see SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011). 

27.     Proceedings have been conducted before judicial officers, serving or retired. There are signs that Leadership Tribunal proceedings have become procedurally cumbersome and technical, due mainly to the insistence from leaders who appear before the tribunal, on strict adherence to technical rules of procedure and evidence. Further judicial review by the National Court and the Supreme Court is within easy reach and many leaders have challenged the referral process and proceedings of the tribunal.  Leaders should get great comfort from the fact that they already enjoy a system of justice in the tribunals that in practice have been shaped to become adversarial and adjudicative and to a point that the proceedings are almost “a judicial proceeding”. They do not need more procedural safeguards that provide them more protection. The Amendment Law is an unnecessary interference in the proceedings of a Leadership Tribunal, it is clearly inconsistent with Section 28(5) of the Constitution and it must be struck down.     

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

28.     I also agree with Justice Kirriwom and Justice Cannings that given my answer to question 1, it is unnecessary to answer question 2.

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:

(a)	When the Public Prosecutor refers the leader to the appropriate authority?

(b)	When the appropriate authority appoints a tribunal?

(c)	When the Public Prosecutor presents the reference, that is the charge and statement of reasons, to the tribunal?

[(d)] In circumstances other than the above?

29.     The pivotal question is:  When does suspension of a leader referred under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? 

30.     The OLDRL, Section 28(1) is in the following terms:

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.

31.     Section 27 (tribunals) of the OLDRL 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 "the appropriate tribunal".

32.     There is no question that the leader is automatically suspended by operation of law “when the matter has been referred to a tribunal”. Pruaitch v Manek (No 1), Pruaitch v Manek (No 2) and Somare v Manek reached the same conclusion and that is the correct statement of the law under OLDRL, Section 28(1).  The only issue is over the occurrence of the event that triggers the suspension under any one of the four scenarios set out in question 3.

33.     Question 3 asks a generic question that is not specific as to the different categories of leaders in respect whom appropriate tribunals are appointed under OLDRL, Section 27(7). Likewise the general reference in Section 28(1) to Section 27 lacks specific reference to the different categories of leaders and appropriate tribunals appointed under separate Constitutional Laws. The ambiguity in the question and OLDRL, Section 28(1) needs to be resolved first.

34.     In my view, the question over the application of Section 28(1) of the OLDRL should be restricted to the suspension of a leader who is the subject of an investigation by an appropriate tribunal appointed by the Chief Justice under Section 27(7)(e). Section 28(1) does not concern itself with Leadership Tribunals that are appointed under Sections 27(7)(a) to (d), because they have their own suspension provisions under the Constitution and OLGRICOH. Suspension of a leader by an appropriate tribunal appointed under Section 27(7)(e) is automatic by operation of law. Suspension of other leaders appearing under Sections 27(7)(a) to (d) inclusive is in the discretion of the tribunal or the appointing authority of the leader, which is also the appropriate authority that appoints the tribunal. 

35.     In the case of the Prime Minister, the tribunal suspends the Prime Minister (Constitution, Section 142(5) and (6)). In the case of the Chief Justice, the Head of State acting in accordance with the advice of the National Executive Council suspends the Chief Justice: Constitution, Section 182(1)(a). In the case of Judges, Chief Magistrate and the Law officers, the Judicial and Legal Services Commission suspends the leader after appointing the tribunal:   Constitution, Section 182(1)(b). In the case of the Clerk of Parliament and the Auditor-General, the National Executive Council suspends them after appointing the tribunal: OLGRICOH, Section 9. 

36.     I have read the judgments of the Supreme Court in Pruaitch v Manek (No 1), Pruaitch v Manek (No 2) and Somare v Manek, which were constituted by different Judges, with interest with regard to how the relevant provisions of the Constitutional Laws relating to suspension of a Leader have been construed and accorded conclusive constructions without the benefit of full argument on the point by the parties. In those cases, the primary question was not over suspension under Section 28(1) of the OLDRL. As a result, some of the reasoning in those cases is not reflective of the intention and purpose of those provisions. Some of the reasoning has gone beyond those argued by the parties and directed their focus away from the specific issues in the case.  

37.     The primary legal foundations of the proceedings in the three cases were not about suspension (and its coming into effect) of the leaders in question. The first case that started the debate was Pruaitch v Manek (No 1). It was an appeal from an interlocutory ruling of the National Court refusing an interim injunction to restrain further action on the referral made by Ombudsman Commission to the Public Prosecutor. The Court went on to make what appears to be a substantive determination on issues concerning referral of the leader and when suspension comes into effect. All that the Court had to be satisfied with was that there was an arguable case that there occurred errors on the face of the decision. The Court determined issues concerning when the leader was suspended from office under Section 28(1) of the OLDRL. The Court decided that a leader was suspended when the Chief Justice appointed the tribunal upon receiving a request from the Public Prosecutor. The Court held that a tribunal already having been appointed, Pruaitch remained suspended by operation of law.  

38.     In the next case, Somare v Manek, Somare  brought a Constitutional Claim under Section 18(1) of the Constitution (invoking the original jurisdiction of the Supreme Court) seeking an interpretation and application of certain Constitutional provisions relating to his referral by the Ombudsman Commission to the Public Prosecutor. An application was made by the Ombudsman Commission to dismiss the Constitutional Claim for abuse of process on the ground that the Leadership Tribunal proceedings had already been concluded. The Court made substantive determinations on when Somare was suspended from office under the OLDRL. The Court held that suspension occurred when the Public Prosecutor requested the Chief Justice to appoint a Leadership Tribunal. The Court did not consider Section 142(6) the Constitution, subject to which Section 28(1) of the OLDRL is to be read, which provides that suspension is in the discretion of the Leadership Tribunal. 

39.     The Court overlooked Section 142(6) of the Constitution because the lawyers who appeared in the case did not bring this provision to the Court’s attention. The failure of the lawyers to bring this provision to the Court’s attention was inexcusable given that there was some public debate in the media a few months earlier in 2011 over that very same issue and their minds would have been alerted to this important provision. I recall that after I (as Chief Justice) appointed the Leadership Tribunal in that matter, I came under criticism from certain partisan elements.  I had deferred the question of suspension to the Leadership Tribunal in the light of Section 142(6) of the Constitution.  The critics’ minds were no doubt clouded by the hysteria in some quarters of the public that was gripping the nation that Somare should resign or step down during the tribunal investigations or better still he remained automatically suspended from office by operation of law under OLDRL, Section 28(1). Somare v Manek was decided in July of 2011, after the Leadership Tribunal had concluded its inquiry in April of 2011. The public debate seems to have entered the judicial fray in Somare v Manek with the Court venturing into an ex post facto consideration of the rights and wrongs of a leader undergoing investigations before a Leadership Tribunal. The Court said leaders in such circumstances are duty-bound to do the right thing by resigning or retiring as it was the standing practice that had developed elsewhere in the common law world. All that with respect was unnecessary and obiter. 

40.     In the third case, Pruaitch v Manek (No 2), Pruaitch appealed against the decision of the National Court that dismissed the substantive proceedings from which arose the interlocutory ruling that was the subject of the decision in Pruaitch v Manek (No 1). The Court allowed the appeal and reinstated the National Court proceedings. The question of suspension pending the determination of those proceedings arose as a consequential point. The Court held that the decision of the full Court in Pruaitch v Manek (No 1) on the question of suspension was obiter and that the Court had exceeded its jurisdiction to suspend Pruaitch. The Court also held that a leader is suspended when the Public Prosecutor presents the “charges” and statement of reasons before the Leadership Tribunal. Only then, the tribunal assumes jurisdiction over the matter and the leader is automatically suspended from office there and then.  The Court then went on to restrain the Ombudsman Commission, the Public Prosecutor, the Leadership Tribunal and the State from taking any further steps on the referral until the substantive proceedings were determined by the National Court.

41.     In Pruaitch v Manek (No 2) the question of suspension arose after the appeal was allowed. The question of suspension was a matter for the National Court to deal with in the National Court proceedings before it, now that those proceedings had been restored. The Supreme Court claimed its jurisdiction to grant such interim relief under Section 23(2) of the Constitution.  However that provision gives the National Court (not the Supreme Court) the power to impose sanctions for breaches of the Constitution. The Court also used Section 155(4) of the Constitution to claim its jurisdiction to grant the interim relief. However Section 155(4) is only properly used in aid of a primary claim. That primary claim was founded on the wrong provision in Section 23(2) of the Constitution. 

42.     In the case before us, this case does not suffer from any of those frivolities that are apparent in the three cases. The question has been fully argued before us by the appropriate parties and it is time now time to arrive at a conclusive determination on the question. 

43.     The question concerns Section 28(1) of the OLDRL which applies only to an appropriate Leadership Tribunal appointed under Section 27(7)(e). 

44.     In my view, in order to ascertain the meaning of OLDRL, Section 28(1), the provisions of OLDRL, Section 27(2) and (7)(e), to which Section 28(1) relate, must be read together. These OLDRL provisions must also be read subject to Constitution, Section 28(1) and Section 29 by virtue of Section 11 of the Constitution. 

45.      I have already concluded that the appropriate tribunal for the purpose of OLDRL, Section 28(1) is the tribunal appointed under OLDRL, Section 27(7)(e). I have also concluded that suspension under OLDRL, Section 28(1) is automatic and occurs by operation of law. I have concluded that in respect of leaders appearing in Sections 27(7)(a) to (d), suspension is in the discretion of the tribunal or the leader’s appointing authority which is also the appropriate authority that appoints the tribunal. That restricts the application of OLDRL, Section 28(1) to the leaders who are investigated by appropriate tribunals appointed under Section 27(7)(e). The reason for the different treatment accorded to the leaders under the two categories is, it seems to me, the importance of high offices and their independence (in respect of Constitutional Offices and Office-holders). This protection is among a series of other protections accorded to those high and independent offices by Constitutional Law. For instance, in the case of a referral of leaders that come under Sections 27(a)-(d), an appointment of a Leadership Tribunal to investigate them on an allegation of misconduct in office or for misbehaviour must be predicated on a serious question of removal arising from those allegations: see SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011.

46.     The referral of the matter by the Ombudsman Commission to the Public Prosecutor is “for prosecution” before a Leadership Tribunal that is appointed for the purpose of inquiring into the matter: Constitution, Section 29. The Public Prosecutor’s prosecution function is invoked. The OLDRL, Section 27(2) empowers the Public Prosecutor to make his own decision whether or not to bring a “prosecution” before the Leadership Tribunal.  The prosecution cannot be commenced before a Leadership Tribunal until a tribunal is appointed and is in place to receive the referral. The Chief Justice is not a privy to the dialogue over the referral process that takes place between the Ombudsman Commission and the Public Prosecutor under Constitution Section 29 and OLDRL, Section 27. The Public Prosecutor must request the Chief Justice to appoint the appropriate tribunal. 

47.     It is a long established practice that the Public Prosecutor requests the Chief Justice to appoint the tribunal to enable  him to bring the prosecution proceeding. The Public Prosecutor’s request to the Chief Justice to appoint the tribunal cannot be said to be a “referral” for the purpose of OLDRL, Section 28(1).  The Chief Justice usually accedes to the request and appoints the appropriate tribunal and informs the Public Prosecutor accordingly. 

48.     It is also a long established practice that with the tribunal in place, the Public Prosecutor brings the allegations of misconduct (the “charges”)  accompanied by the statement of reasons before the tribunal which he formally presents to the tribunal at a public hearing, at a  fixed date, time and venue. The inquiry commences upon the presentation of the allegations. This practice is analogous to the Public Prosecutor’s formal presentation of a charge for a criminal offence in the form of an indictment before a Judge in open Court, to commence the criminal trial or proceeding. The prosecution function of the Public Prosecutor before the Court and the Leadership Tribunal are in the same vein. The word “refers” appearing in OLDRL, Section 28(1) should be accorded the same meaning as the word “presents”. This is the correct interpretation that should be accorded to OLDRL, Section 28(1) upon a combined reading of Constitution, Section 29 and OLDRL, Sections 27(1), (2) and (7).  

49.     The timing and venue of the tribunal’s sitting is critical to the presentation of the allegations of misconduct and the suspension that follows by operation of law. It is imperative that the appropriate authority that appoints the tribunal inform the leader concerned, the prosecution authority and the tribunal members of the date, time and venue of the first public hearing in which the charges will be presented so that the tribunal can commence its inquiry on schedule and the leader and the Public Prosecutor can also attend. In 2010, the Chief Justice after consulting the stakeholders promulgated the Protocol on Appointment of Leadership Tribunals by the Chief Justice 2010 (“the Protocol”, an NJS Publication). The Protocol addresses those administrative matters. The Protocol has been applied in respect of all the tribunals appointed by the Chief Justice since 2010 with greater efficiency achieved in the appointment of Leadership Tribunals and the timely and efficient conduct of tribunal proceedings. 

50.     Amongst the guidelines contained in the Protocol, there is provision for the Public Prosecutor to furnish the statement of allegations of misconduct and statement of reasons to accompany his request to the Chief Justice to appoint the tribunal. The guidelines make provision for an Instrument of Appointment of the Tribunal in the prescribed form to be issued by the Chief Justice that marks the appointment of the tribunal. The instrument contains, amongst other relevant matters, the names of the Chairman and members of the tribunal, the date, time and venue fixed for the commencement of the inquiry. In practice, the date time and venue is fixed after consulting the Chairman and members of the tribunal. The guidelines provide for filing documents by the parties at the National Court registry at Waigani to be received, registered and recorded by a dedicated staff of the registry service. The guidelines also make provision for the instrument once issued to be served on all the leader together with the statement of allegations and the statement of reasons. The members of the tribunal are also furnished with those documents. The Public Prosecutor is furnished with a copy of the instrument only. It is at that first hearing that the Public Prosecutor will present the allegations of misconduct constituting the charge(s) accompanied by the statement of reasons. 

51.     I should make it clear that the provision of the statement of allegations and statement of reasons by the Public Prosecutor to the Chief Justice does not constitute a “referral” under Section 28(1) of the OLDRL. The early provision of the statement of allegations and statement of reasons to the leader is to inform the leader and to enable him to prepare his case. The Public Prosecutor should formally present the allegations of misconduct and statement of reasons when the tribunal convenes at the date, time and venue fixed in the instrument of appointment of the tribunal. The suspension commences when the statement of allegations of misconduct and statement of reasons are formally presented to the tribunal. 

52.     The Protocol provides useful procedural guidelines that assist in the efficient running of Leadership Tribunals appointed by the Chief Justice. After the decision on this Reference, application of the Protocol and adherence to the procedural guidelines therein will continue to become particularly relevant and imperative for the timely commencement of the inquiry by the tribunal. 

53.     The Protocol addresses a lack of provision in the OLDRL and OLGRICOH with regard to the procedural guidelines by which the Leadership Tribunal system is administered. I would classify the protocol as procedural guidelines of Constitutional significance that come under Section 224 of the Constitution.  

54.      I hold that pursuant to Section 29(1) of the Constitution, Section 27(2) of OLDRL and Section 28(1) of the Constitution, a leader in respect of whom an appropriate Leadership Tribunal is appointed under Section 27(7)(e) of the OLDRL is automatically suspended from office by operation of law upon the formal presentation of the allegations of misconduct in office accompanied by the statement of reasons, by the Public Prosecutor, before the Leadership Tribunal, when the tribunal commences its public inquiry at the time, date and a venue fixed in the instrument of appointment of the appropriate tribunal issued by the Chief Justice or at such other time, date and venue as the tribunal determines. 

55.     I approve of the reasoning in Pruaitch v Manek (No 2) and overrule Pruaitch v Manek (No 1) and Somare v Manek on this point. 

56.     For the foregoing reasons, I would answer question 3 as follows:

The suspension of a leader referred under Section 28(1) of OLDRL only applies to a leader who is the subject of an inquiry by a Leadership Tribunal appointed under Section 27(7)(e) of the OLDRL. The suspension of the leader automatically takes effect by operation of law when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the statement of reasons, to the Leadership Tribunal at a public hearing.

57.     KIRRIWOM J: This is a Special Reference pursuant to Constitution, Section 19(1) by the Ombudsman Commission of Papua New Guinea, an authority referred to in Section 19(3)(e) of the Constitution for an opinion of the Supreme Court relating to interpretation or application of Constitutional Laws in the light of the questions herein posed for the Court's deliberation and determination. And these questions are:

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:
(a)	When the Public Prosecutor refers the leader to the appropriate authority?

(b)	When the appropriate authority appoints a tribunal?

(c)	When the Public Prosecutor presents the reference, that is the charge and statement of reasons, to the tribunal?

[(d)] In circumstances other than the above?

58.     Questions 1 and 2 relate to the amendment to Section 27(4) of the Organic Law on Duties and Responsibilities of Leadership where the amendment or the amended provision prescribes strict compliance with the rules of evidence as required in the Evidence Act in the Ombudsman Commission investigation of a leader before it forms an opinion to refer the leader to the Public Prosecutor whereas the law as it was before the amendment did not require such strict proof or compliance before the Commission exercised that discretion to refer. 

59.      Question 3 is in relation to the timing of a leader's suspension from office or position when he is subject to a leadership prosecution. This is the result of several conflicting opinions previously expressed by three-Judge benches of the Supreme Court so that an opinion now from the five-Jude bench can put this issue at rest.

60.     The relevant Constitutional Law provisions are:

(A)	Organic Law on the Duties and Responsibilities of Leadership

61.      Section 27 (in particular sub-section 4):

(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 "the appropriate tribunal". [Emphasis added.]

62.     Section 27(4) before amendment:

The tribunal shall make due inquiry into the matter referred to it , without regard to legal formalities or rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice"

63.      Section 27(4) as amended:

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. 

64.     Section 28 (in particular subsection (1)): 

(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.

(2)	A suspension under Subsection (1) is on full pay.

(B)	The Constitution of Papua New Guinea

65.      Section 11 provides:

(1)	This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.

(2)	The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.

66.     Section 28 (in particular subsection 5):

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

(a)	may give to the Ombudsman Commission or some other authority any powers that are necessary or convenient for attaining the objects of this Division and of the Organic Law; and

(b)	shall make provision for the disclosure to the Ombudsman Commission or some other authority of the personal and business incomes and financial affairs of persons to whom this Division applies, and of their families and associates, and in particular of interests in contracts with governmental bodies and of directorships and similar offices held by them (including powers to nominate directors, trustees or agents, or similar officers); and

(c)	shall empower the Ombudsman Commission or some other authority to require a person to whom this Division applies to dispose of, or place under the control of the public trustee, any assets or income where this seems to be desirable for attaining the objects of this Division; and

(d)	may prescribe specific acts that constitute misconduct in office; and

(e)	may create offences (including offences by persons to whom this Division applies and offences by other persons); and

(f)	shall provide for the investigation by the Ombudsman Commission or some other authority of cases of alleged or suspected misconduct in office, and confer on the Commission or authority any powers that are necessary or convenient for that purpose; and

(g)	shall establish independent tribunals that—

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

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

(h)	may make any other provision that is necessary or convenient for attaining the objects of this Division.

(1A)	An Organic Law may provide that where the independent tribunal referred to in Subsection (1)(g) finds that—

(a)	there was no serious culpability on the part of a person found guilty of misconduct in office; and

(b)	public policy and the public good do not require dismissal,
it may recommend to the appropriate authority that some other penalty provided for by law be imposed.

(2)	Where an independent tribunal referred to in Subsection (1)(g) makes a recommendation to the appropriate authority in accordance with that paragraph or with Subsection (1A), the appropriate authority shall act in accordance with the recommendation.

(3)	For the purposes of Subsections (1)(g), (1A) and (2), "the appropriate authority"—

(a)	in relation to—

(i)	a person holding an office referred to in Section 26(1)(a), (b), (c) or (d) (application of Division 2); or

(ii)	a person holding an elective office that is declared under Section 26(3) to be an office to and in relation to which this Division applies,

means the Head of State; and

(b)	in relation to a person holding any other office to which this Division applies—means the appropriate appointing authority.

(4)	An Organic Law may provide for the suspension from office of a person to whom this Division applies pending the investigation of any case of alleged or suspected misconduct in office by him.

(5)	Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and—

(a)	no such proceedings are a bar to any other proceedings provided for by law; and

(b)	no other proceedings provided for by law are a bar to proceedings under that paragraph. [Emphasis added.]

67.     Section 29 (in particular Subsection (1)):

(1)	Where the Ombudsman Commission or other authority referred to in Section 28(1)(f) (further provisions) is satisfied that there is a prima facie case that a person has been guilty of misconduct in office, it shall refer the matter to the Public Prosecutor for prosecution before a tribunal established under Section 28(1)(g) (further provisions).  

(2)	If the Public Prosecutor fails to prosecute the matter within a reasonable period, the Commission may prosecute it in his stead. 

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

68.     Every provision of the Constitution and the Organic Laws must be capable of being read and understood as complete and as a whole in their application to any given subject matter. That in essence is the import of Section 11 of the Constitution when it states that “this Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, subject to Section 10 (construction of written laws)”. And it goes further: “all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective”. 

69.     Constitution Section 28(5) provides that investigations conducted by independent leadership tribunals established pursuant to subsection (1)(g) of Section 28 of any cases of alleged or suspected misconduct in office for determination against any person subject to Section 26 of the Constitution are not judicial proceedings but are subject to the principles of natural justice. Against this backdrop, the Organic Law on Duties and Responsibilities of Leadership as amended now provides under Section 27(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.

70.     This has changed the entire procedure in the role and function of the leadership tribunals that previously did not have to observe strict rules of evidence when the Organic Law was couched in these terms:

The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

71.     The question that begs an answer is 'what does this all mean? ‘Does this mean that leadership tribunals must now function like the courts of law applying strict legal formalities and rules of evidence like in any judicial proceedings?' The referrer argues in the affirmative and submits that, that being the case, the amendment is unconstitutional because it offends Section 28(5) of the Constitution which is quite specific in its terms that Leadership Tribunal investigations are not judicial proceedings but nevertheless subject to the principles of natural justice. 

72.     On behalf of the referrer, Dr Narokobi advanced a number of pertinent points on behalf of the affirmative that support the view that amendment No 2 of 2016, which amends Section 27(4) of the OLDRL is unconstitutional as it is inconsistent with Section 28(5) of the Constitution.

73.     Prior to the amendment the tribunal to which a matter is referred shall make due inquiry into the matter referred to it without regard to legal formalities or rules of evidence and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. That was the law then. However by Amendment No 2 of 2016, Section 27(4) now provides that the tribunal “shall make due inquiry into the matter referred to it, with legal formalities and 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."

74.     The effect of the amendment is that prosecution under a Leadership Tribunal must apply the strict standard of proof as high as that of the criminal standard of proof beyond reasonable doubt when a leader is before a tribunal. 

75.     Dr Narokobi contends that such an outcome is outrageous. First and foremost is that the proceedings in a Leadership Tribunal are not judicial proceedings although they are subject to the principles of natural justice.

76.    The second intervener’s position on question 1 in the reference is neither here nor there. While on one hand it is submitted that the amendment does not violate the Constitution, it is acknowledged that there are practical problems in the implementation of the amended provision while distinguishing between burden of proof and standard of proof in a prosecution under the Criminal Code and prosecution under the Leadership Code. Reading between the lines, the short answer is simply that the amendment must be unconstitutional because if a law made cannot be enforced free of ambiguity or constraint, it must be unconstitutional. Every Constitutional Law must be read as a whole and given a liberal interpretation or meaning and must speak from time to time. If a Constitutional Law is obscured from speaking from time to time due to an ambiguity and cannot be enforced with any degree of certainty, then a fundamental requirement of the Constitution goes amiss in that it cannot speak and do what the legislature wants.

77.     Mr Maliso appearing for the Prime Minister as the first intervener disagreed with the arguments advanced by the referrer on both the unconstitutionality of the amendment to Section 27(4) of the OLDRL and on the timing of the suspension of a leader subject to a leadership investigation by a tribunal.

78.         Mr Maliso submitted that the amendment was necessary to promote the Leadership Code and more so to protect the leaders. This is a two-pronged submission, the first is about protecting the Leadership Code and second is protecting leaders. 

79.     Mr Maliso, however, failed to demonstrate precisely how the amendment protected the Leadership Code. I would have appreciated his argument if he had given a clear illustration of how the amendment standardised and simplified prosecution of leadership offences as opposed to creating ambiguity and inconsistency in reading and applying the new provision with some of the more established provisions of the law we have adopted and applied since Independence which have been in existence since time immemorial. He tried to distinguish between a tribunal inquiry and a judicial inquiry and concluded that there was no real difference between the two. 

80.      His argument falls far short of addressing the full text of Section 28(5) of the OLDRL, in particular paragraphs (a) and (b). The subsection in its entirety provides:

(5)	Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and—

(a)	no such proceedings are a bar to any other proceedings provided for by law; and
(b)	no other proceedings provided for by law are a bar to proceedings under that paragraph.

81.     In fact the entire amendment overlooks and has ignored altogether the historical development of the rule of law on the distinction between civil and criminal prosecution in the context of double jeopardy arguments  advanced in cases where criminal prosecutions follow disciplinary prosecutions where the Courts have held that there is no double jeopardy. 

82.     How then can the amendment now be reconciled with tribunal proceedings initiated under different legislation or ordinary Acts of Parliament where the same legal principles apply on the question of double jeopardy?  Does this mean that a leader who is found guilty of misappropriating millions of kina by a tribunal appointed under the OLDRL and dismissed from office by the tribunal applying the strict standard of proof of beyond reasonable doubt as in a criminal case cannot be criminally charged for the same offence where conviction results, and a possible consequence is imprisonment?  Is it the intention of the legislature that dismissal from office of a leader who is convicted of a leadership offence is the ultimate penalty that is much severe to be imposed on a leader than a term of imprisonment? 

83.     Leadership offence cases, from their investigations following complaints to their eventual prosecution before duly appointed tribunals, are inquisitorial in nature and not adversarial as in a criminal trial. The reason being that leadership prosecution is no bar to a subsequent criminal prosecution of someone over the same matter. This is made clear by Section 30 (effect of proceedings) of the OLDRL, which provides:

(1)	The result of any proceedings in respect of a charge of misconduct in office is not a bar to proceedings in respect of the same act under any other provision of the Constitution or any other law.

(2)	The result of any proceedings under any other provision of the Constitution or of any other law is not a bar to proceedings in respect of the same act under this Law.

(3)	It is the duty of the Supreme Court and the National Court to ensure that advantage is not taken of Subsection (1) or (2) in cases that are truly vexatious or oppressive, and that proceedings under one provision or law are not used primarily with a view to obtaining evidence for use in or in relation to, or to gain advantage in or in relation to, other proceedings.

84.     That is why there must be a clear distinction between the procedure adopted to prosecute them and the standard and the rules of evidence applicable to such prosecutions, without creating double-jeopardy situations. 

85.     There was no consideration given to the practical consequences of breaking down the distinction between Leadership Code and Criminal Code prosecutions. The position since the amendment, where a leader is prosecuted and found guilty of misconduct in office under the Leadership Code, is likely to give rise a plea of autrefois acquit or autrefois convict when it comes to criminal prosecution because the same procedure applied in the criminal system was applied to arrive at its decision by the a leadership tribunal. 

86.     The essence of Mr Maliso's submission is that by placing the standard of proof as high as it can go, like in the criminal standard of proof, there can be fewer successes in the prosecution of leaders so that there can be less dismissal from office of leaders thereby less deprivation of representation of voters in the Parliament. This is what Mr Maliso was apparently referring to as protection of leaders as being the aim of the amendment.

87.     I beg to differ with this submission. The law must not be made to protect leaders, but the People, the ordinary people and the public. They are the ones that the law must be made to protect, not a minority group. Why must legislators pass laws to protect themselves against the very people who voted them into office? Should not the people have the ultimate power to decide whether a leader is suitable to remain in office as their elected representative if he is frequently misbehaving in public, habitually getting drunk and abusing his wife or not attending to his parliamentary duties, etc?

88.     The proponents of the amended Section 27(4), which now fails to differentiate between leadership offences that do not amount to criminal offences carrying penal sanctions and leadership offences that are criminal in nature with attendant severe penalties with long terms of imprisonment, fail to appreciate that all such leadership offences amount to misconduct in office by a leader covered by Section 26 of the Constitution.

89.     There have been cases where a leader was tried, found guilty and dismissed from office for using his position to support employment a relative to a senior position in the Public Services Commission (Peipul v Sheehan (2002) SC706); a leader was tried, found guilty and dismissed from office for public nuisance for being disorderly and misbehaving in public place on the basis of public policy whilst under influence of liquor (Re Hon Michael Nali MP (2003) N2399); a leader was tried, found guilty and dismissed from office for accepting favours from a foreign logging company in exchange for government contracts and logging permits (Re Gerard Sigulogo [1988-89] PNGLR 384); and the list goes on. These are classic misconduct offences that are not strictly criminal in nature but equally serious in substance when committed by persons holding public offices and which are the scenarios that Section 27(1) is referring to that do not require the criminal standard of proof. 

90.     The amendment creates inherent difficulty in the prosecution of Leadership Code offences that are not criminal in nature, a scenario painted in the opening remarks of Dr Narokobi's submission attributed to the Chairman of the Constitutional Planning Committee, John Momis. There are leadership offences that do not require strict standard of proof because they are not criminal offences, including misconduct in office constituted by conduct such as public misbehaviour, failing to submit annual returns, double-dipping, etc.

91.     By the same token the amendment fails to make allowance for the clearly established law that has laid strong foundations in our legal system for decades or centuries in those countries of origin of this rule, that finding of liability in a civil action or a prosecution and finding of guilt in a disciplinary tribunal is no bar to criminal prosecution arising from the same facts against the person already tried in such tribunals with less rigid rules of evidence and proof. 

92.     Before I finalised my draft opinion with respect to question 1 in the reference posed by the Ombudsman Commission, I had the benefit of reading the draft opinion of my brother Cannings J that was circulated and I am in agreement in his analysis and reasoning most eloquently articulated as far as it concerns equality in the law as between leaders of all walks of life, whether elected or unelected, when it comes to the Leadership Code and misconduct  of leaders, be it in their public or private life. To protect leaders elected to the public office through universal suffrage by legislation and safe-guarding them so that prosecution of them is more rigorous than those against constitutional office holders under or though the Constitutional Office Holders Rights Tribunal established under Section 4(1) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders makes a mockery of the system of leadership prosecutions. It is a clear constitutional breach as there are major inconsistencies that Cannings J quite adequately covered in his opinion, which I adopt.

93.     Question 1 must therefore be answered in the affirmative.

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

94.     It is not necessary to answer this question in view of the answer to question 1. On the other hand, I have read my brother Cannings J's careful analysis of this hypothetical question and I have nothing to add to the discussion.

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:

(a)	When the Public Prosecutor refers the leader to the appropriate authority?

(b)	When the appropriate authority appoints a tribunal?

(c)	When the Public Prosecutor presents the reference, that is the charge and statement of reasons, to the tribunal?

[(d)] In circumstances other than the above?

95.     Counsel for the Referrer Dr Narokobi submits that to determine the question of suspension of a person referred for purposes of a leadership investigation as stipulated in Section 28(1) of the OLDRL, one must determine as to when a person's referral commences. The reason being that the suspension relates to the referral of the person under investigation. To take this argument further, the section is not talking about prosecution of the person, but investigation of the person.

96.    On this premise, Dr Narokobi submits that, as the referral process begins from the Ombudsman Commission to the Public Prosecutor after a prima facie case is established following full investigation of the allegations against the person concerned, the suspension must take effect from the time the Ombudsman Commission refers the person to the Public Prosecutor.

97.    Alternatively it is submitted that the suspension of a person must be conjoined with or to his referral. Taking this approach then the correct approach is as determined by the Supreme Court in Pruaitch v Manek (No 1) (2010) SC1052 in that the referral of the person begins with the Public Prosecutor requesting the Chief Justice or the appointing authority to appoint a tribunal. And once a tribunal is appointed the suspension immediately takes effect. This is the essence of Dr Narokobi's submission on suspension. 

98.     The view contended by first intervener is in support of the Pruaitch v Manek (No 2) (2011) SC1093 decision of the Supreme Court in that the referral begins when the charges and statement of reasons are formally presented to the tribunal. I note that this same view was earlier advocated by the Ombudsman Commission in Pruaitch v Manek (No 2) but the Commission has now shifted away from that position in favour of the third option found in Somare v Manek [2011] 1 PNGLR 220.

99.     Counsel for the second intervener presents two scenarios on the question of suspension of a leader under Section 28(1) of the OLDRL. His first proposition is consistent with the decision of the court in Pruaitch v Manek (No. 1) which is that the referral begins when the Public Prosecutor requests the Chief Justice to appoint a Leadership Tribunal and a tribunal is appointed pursuant to that request. When the appointment is made the leader is suspended automatically. However the second scenario is where there is a standing tribunal, then the referral of the leader takes place before the tribunal when the charges are formally presented, at which time the leader is suspended.

100.     This is in my view a more logical reasoning. And since in reality, although Section 10 of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders makes reference to the Constitutional Office-holders Rights Tribunal, no such standing tribunal has been established. Although several such ad hoc tribunals have been appointed to deal with specific cases and disbanded once their given tasks were complete, the argument advanced by the first intervener in support of the view promulgated in Pruaitch v Manek No 2 can no longer and must not be sustained.

101.     My answer to question 3 is that this is already settled law as per the decision of the Supreme Court in Pruaitch v Manek (No 1).That decision is based on sound legal reasoning and supported by case authorities. The subsequent decision in Pruaitch v Manek (No 2) is shallow and is a decision based on rhetoric and irrelevant considerations in my view. 

102.     In my view the question really is whether the referral of a person for purposes of the Leadership Code commences from the time of appointment of a tribunal or from the time of presentation of the charges before the tribunal. And could it even commence from the time of referral by the Ombudsman Commission to the Public Prosecutor as was contended by the referrer? This is the question that the Court needs to decide.

103.     And the reason I say that is simply this. The suspension of a person the subject of a leadership investigation is a consequential and automatic outcome or eventuality that follows an event. And the event is either the appointment of a tribunal or presentation of the charges to the tribunal which is appointed.

104.     Pruaitch v Manek (No 1) held that the appointment of a tribunal by instrument under the hand of the appointing authority is when the leader is referred, which is when Section 28(1) automatically comes into operation. Often it follows, once the tribunal is appointed, that it convenes within days of its appointment. However, there have been instances where the time between the appointment of a tribunal and the time when the appointed tribunal convenes for its inquiry has become critical, when intervening factors, such as delays through injunctive court orders and resignations, frustrate the jurisdiction of the appointed tribunal. 

105.      Normally, it does not take weeks or months when the tribunal begins its inquiry but the unusual does happen. When the time of appointment of the tribunal is reckoned with Section 28(1) of the OLDRL, which relates or refers to the referral of the matter to a tribunal (that is yet to be appointed), the appointment of that tribunal now seals that anticipated event which is the act of appointment of a tribunal. Section 28(1) of the OLDRL refers to the appointment of a tribunal, not the tribunal. The law says that once a matter is referred to a tribunal under Section 27, the person alleged to have committed misconduct in office is suspended forthwith. It does make sense when the law is read as decided in Pruaitch v Manek (No 2) because there is no standing tribunal dealing with leadership prosecutions. There is reference to one, namely, the Constitutional Office Holders Rights Tribunal in Section 4(1) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, which provides:

(1)	There is hereby established a Constitutional Office-holders Rights Tribunal.

(2)	The Tribunal shall consist of a Chairman and two other members, each of whom must be a Judge of the National Court.

106.     However, the reality is that no such tribunal exists. Subsection (1) is not referring to the tribunal that has been appointed by the appointing authority to investigate the leader concerned. If that was the wording of the law, then it logically follows that referral of a matter to that tribunal does not take effect until the charges are presented to the tribunal and it is given the subject of its investigation, and this is why Mr Egan's submission on behalf of the second intervener makes a lot of sense. 

107.     To read Section 28(1) OLDRL as advanced by the first intervener is in my humble opinion a misconceived interpretation of the law. It is consistent with common sense that the appointment of a tribunal by the appropriate authority is the affirmation of the referral process emanating from the Public Prosecutor's request, when Section 28(1) of the OLDRL must instantly come into effect. The presentation of the charges once the, or that, tribunal convenes is the commencement of the prosecutorial function of the Public Prosecutor to assist the tribunal in its investigation of the allegations contained in the charges. It is the ultimate manifestation of the referral of the leader that had already been affirmed by the appointment of a tribunal by the appropriate or appointing authority. 

108.     I use the terms appropriate authority and appointing authority advisedly as they are not the same. Appropriate authority in the context of most leaders refers to the Chief Justice, whereas appointing authority in the class of leaders covered by Sections 27(7)(a) to (d) of the OLDRL refers to the authority that appointed the leader concerned to the public office, such as the National     Executive Council in the case of the Chief Justice and the National Parliament in the case of the Prime Minister.

109.     The Supreme Court in Pruaitch v Manek (No 2) determined the question of suspension under Section 28(1) of the OLDRL because it was posed for its determination as a ground of appeal, and it discussed the merits of the decision in Pruaitch v Manek (No 1) as if it was exercising appellate jurisdiction over a decision of a subordinate court, when in fact the opinion expressed was that of the same and equally constituted and competent court of the same authority. What, if anything, really should have happened was that if there was any doubt about the application of Section 28(1) of the OLDRL at that juncture, the question of suspension should have gone before a five-Judge Supreme Court by way of a Constitution Section 18 or 19 Reference, instead of disagreeing with the earlier decision and deliberately creating a confusion.

110.     While Pruaitch v Manek (No 2) described the decision in Pruaitch v Manek (No 1) as obiter dicta only, for the reasons that the Court acted on its own volition without being requested or without hearing counsel on the issue of suspension, the legal reasoning in Pruaitch v Manek (No 1) is far from incongruent. It is crystal clear and supported by legal precedent and consistent with the real intent of the overall scheme of the Leadership Code inquiry process. 

111.     The assertion that the Pruaitch v Manek (No 1) decision on the suspension was obiter by the opinion of the Court in Pruaitch v Manek (No 2) is a misstatement of the correct legal position in the circumstances of the case before the Court at the time because whilst the question of suspension was not raised in the pleadings as it were, it was clear as night follows day that an important provision in the whole Leadership Tribunal appointment process, where a leader is referred for prosecution, was being paid lip-service through delays and procrastination of the leadership proceedings by stay or injunctive orders after the tribunal had been appointed and before it could actually get started. It was within the power of the Supreme Court in Pruaitch v Manek (No 1) to patch that anomaly or bridge the gap in the process so that there is no disruption to the tribunal exercising its jurisdiction following appointment by making sure that once proceedings have commenced by the appointment of a tribunal, it is brought to finality without undue delay or interruptions. That power under Section 28 of OLDRL is there as the consequential and ancillary relief or remedy to give effect to the operation or the function of the appointed tribunal as a matter of course without more being done by anyone. It is a self-executing provision or law consequential upon an event happening which is the appointment of a tribunal. 

112.     The suspension provision was not meant to be a separate litigation when a person was referred to a Leadership Tribunal for investigation. It was an integral part of the process that automatically followed when the leader was referred and the referral commenced when the tribunal was appointed, not when the charges and allegations were tabled before the tribunal which is the commencement of the prosecution of the charges and allegations. If the referral commenced with the Public Prosecutor presenting the charges and the allegations before the tribunal, then the suspension takes effect from that time onwards. But Pruaitch v Manek (No 1) held that the referral of the leader to the tribunal started with the appointment of the tribunal which is when the suspension automatically springs into action, just like a person charged with a criminal offence is suspended when charges are laid at the police station and not when the prosecution is commenced in court with the reading out of the charge and the plea is taken, or like a person charged with a disciplinary offence is suspended when the charges are served on him and not when he answers the charges by way of reply.

113.     In my opinion until the legislature has addressed the gap in the law between the time the tribunal is appointed and the time the tribunal actually commences its hearing there is a vacuum or gap of uncertainty leaving room for procrastination and opportunity for the tribunal hearing of the charges and allegation being protracted and derailed thereby rendering the entire process insignificant, meaningless and toothless. This is what Pruaitch v Manek (No 1) was mindful of and correctly addressed in the decision reached which is still good law.

114.     My answers to the three questions in brief:

No 	Questions	Answer	
1	Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution?
	Yes. It is unconstitutional	
2	If the answer to Question 1 is "No", then what does "with legal formalities and in strict compliance of the Evidence Act (Chapter 48) in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?
	Unnecessary to answer.	
3	When does suspension of a leader referred under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:
	Already decided in Pruaitch v Manek (No 1) (2010) SC1052
	
3a	When the Public Prosecutor refers the leader to the appropriate authority? or,
	Yes, that is when the referral process begins.
	
3b	When the appropriate authority appoints a Tribunal? or,
	Yes, that is when the referral process is given teeth to bite with the appointment of a tribunal.
	
3c	When the Public Prosecutor presents the Reference that is the charge and statement of reasons to the Tribunal? or,
	No, that is when the prosecution or prosecutorial role of the Public Prosecutor begins in the tribunal.
	
3d	In circumstances other than 3a, 3b and 3c?
	Unnecessary to answer.	

Conclusion re question 3 

115.     On the question of suspension of a leader my answer is that the law has been settled in Pruaitch v Manek (No 1) for the reasons I have amplified already in my judgment. To accept the view as decided in Pruaitch v Manek (No 2) on the basis that it is obiter dicta, fails to grasp the logical reasoning canvassed by this Court founded on good legal authority and with a view to ensuring that the referral process was not open to potential abuse and hijacking as was happening at the time when that decision was reached. The Constitution is a living document, as such must be capable of being invoked at any time and in any given situation that surpasses all other laws. It is the source of all power.

116.     I have also read the opinion of my brother Cannings J on this question and the conclusion he reached. With respect, I do not think his Honour fully answered this question other than seemingly supporting the view as promoted in Pruaitch v Manek (No 2). The reason as to why this question has come before this five-Judge bench is that there are now three schools of thought. Pruaitch v Manek (No 1) and Pruaitch v Manek (No 2) are promoting two opposing views but there is now a third view in Somare v Manek [2011] 1 PNGLR 220, which advocates for the referral process commencing from the time the Public Prosecutor requests the Chief Justice or the appointing authority to appoint a tribunal which is when the referral commences and the leader referred is suspended.

117.     In my view this question has been answered in Pruaitch v Manek (No 1) and it is unnecessary to resurrect what has been correctly decided. But if Somare v Manek has now provided another option, an alternative option which is not too far from that determined by Pruaitch v Manek (No 1) then for the same reasons that Pruaitch v Manek (No 1) reached the conclusion it did, I will go along with the third alternative decided in Somare v Manek.

118.    KANDAKASI J:	I had the benefit of reading the draft judgment of the Chief Justice and my brother Cannings J. I have also read the draft decision of Kirriwom J.  Their Honours have set out sufficiently the questions presented in this reference and the background leading to the reference. I will thus not repeat what they have ably set out in their respective decisions.  

In summary 

119.     I also agree with their Honours’ views and answers to the first question before us. I will however, add three addition reasons for answer the first question in the affirmative. As for the second question, the question is dependent on a negative answer to the first question.  Given that the answer to the first question is in the affirmative, it is not necessary to consider and answer this question. The third and remaining question is a question that has already been considered and answered by this Court’s earlier decisions. In respect of that question, I had the privilege of also reading, the draft decision of my brother Kirriwom J. I agree with his Honour’s views in so far has he endorses the decisions of this Court in Pruaitch v Manek (No 1) and Somare v Manek [2011] 1 PNGLR 220.

In detail

QUESTION 1: CHALLENGE ON CHANGING LEADERSHIP TRIBUNAL PROCESS

First reason

120.     The first reason I add to the reasons given by Cannings J, for the answer to the first question, is this. Several critical questions must first be answered before answering the questions presented in this reference.  These questions are:

(1)	Why or what were the reasons for wording at the first place the original provisions of Section 28(5) of the Constitution and Section 27(4) of the Organic Law on Duties and Responsibilities of Leadership (the Organic Law) provisions in the way they were?

(2)	What has changed from the reasons for having the original provisions of Section 28(5) of the Constitution and Section 27(4) of the Organic Law that warrants the amendments; and

(3)	Are the citizens of the country who are the major stake holders on the question of leadership supportive of the changes referred to in question (2) and the amendments?

121.     A good starting point for the purposes of answering the questions that are presented before us is the work of the Constitutional Planning Committee (CPC) as contained and set out in its Final Report. Prior to Papua New Guinea becoming an independent nation, the CPC had the task amongst others of recommending a system of government our country should have and what kind of country we should become.  The CPC had a whole team of legal and other experts totalling over providing valuable technical support. As part of its work, the CPC visited all parts of the country not as a matter of mere formality but seriously engaging with and gathering the people’s views on what they wanted for their soon to become independent nation. In the end, the CPC recommended for us to have a constitutional democracy where the people have a major stake and say in government and changes to its constitutional foundation. The then Constituent Assembly carefully considered, debated upon a draft of our constitution to be and it eventually adopted our current Constitution apart from the subsequent changes to it.

122.     A major part of the CPC’s work was on the issue of the kind of leadership we as a nation should have. It also considered and recommended on the kind judicial process the country should have to deal with all questions of leadership breaches. Then ultimately, the CPC, recommended in its final report:

We have given careful consideration to the question as to the kind of tribunal best suited to dealing with alleged breaches of the Code (that is the Leadership Code) and have decided that although all members of the tribunal should be drawn from the judiciary, the tribunal should be separate from an ordinary court. We feel that breaches of the Code are disciplinary offence rather than criminal offences (though some breaches would also constitute criminal offences and be dealt with as such). …

These tribunals should have all necessary powers and authority to conduct the hearing, summons witnesses, take evidence, make decisions and otherwise function judicial bodies. We envisage that they may adopt procedure which are somewhat more informal than those of a court but that there will be adequate protection of the rights of those charged with a breach of the Code.

123.      After providing for a tribunal and not a court, the Organic Law in s 27(4) in its original terms mandated that:

The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice.

124.     Clearly, the Organic Law adopted the recommendations of the CPC.  It made a deliberate decision to provide for a tribunal to deal with leadership breaches and not a court. As recommended and intended by the fathers of our Constitution, although the tribunal were to be constituted by judicial officers, it was an administrative or disciplinary process tribunal. This clearly entails a much less onerous process to deal with all leadership breaches.  Thus, all leadership breaches were intended to be less serious than a criminal offence which can only be dealt with by a court.  Of course, the CPC and our Constitution’s fathers did not shut the door to any leadership breach which also constitutes a possible criminal offence from being also dealt with in the criminal process which is far more formal and onerous.

125.     At this point in time of our country’s history, we have come to a point where the incidences of leadership breaches have become more prevalent, with allegations of corruption with its many adverse consequences against the nation’s progress and development hitting media headlines on a regular basis. Unfortunately, the number of referrals to the leadership tribunal has been negligible resulting in negligible number of leaders being found guilty of leadership breaches and held accountable to the people.  This is the case despite the process of dealing with any leadership breach being an informal and less cumbersome process with less onerous formalities as is the case in criminal cases.  Hence, the question that necessarily arises is this. What has changed for the better that has warranted the amendments?

126.     There is no evidence of any change in the reasons for having the system of dealing with leadership breaches as recommended and originally provided for in the Constitution and the Organic Law. Also, there is no evidence of a nation-wide call for a change in what was already provided for in the Constitution and the Organic Law.  In other places like Australia and other developed democracies like England from whom our system of government has come, politicians or parliamentarians do not easily or readily change what is provided for in their respective constitutions or a matter of public or national importance.  They are usually proceeded by referendums or some public process of properly seeking and securing the well informed and considered support for any proposed change from the people. Recent examples of these are Britain’s exit from the European Union (Brexit, see http://www.bbc.com/news/uk-politics-32810887 for a new item by the BBC) and the same sex marriage proposal in Australia (see http://www.huffingtonpost.com.au/2017/10/17/yes-winning-same-sex-marriage-postal-survey-by-millions-poll-suggests_a_2324668 for a news item on the issue). Other issues like the question of becoming a republic for Australia remains an unresolved issue in the absence of public opinion or referendum favouring it.  The last referendum was conducted in 1999 where the people of Australia rejected the idea of republicanism. 

127.     Seeking, securing and moving with the wishes of the people is not a new concept in PNG.  As noted earlier, a broader and wider process of consultation took place through the CPC that eventually led to the adoption of our Constitution. The process was repeated before the constitutional changes to the Provincial Government system by committees or bodies specifically set up for that purpose.  Recently, the Constitutional and Law Reform Commission has been conducting consultation on the proposal for reserve seats in Parliament for women.  Also, happening now as we speak are the preparations that are under way for upcoming referendum for the people of Bougainville to decide whether to break away from the rest of PNG and become independent or remain an integral part of PNG as they are now.  Indeed, Sections 338 to 343 of Part XIV of the Constitution specifically provides for this referendum. Hence, the idea of a referendum or the seeking and securing of the people’s views before introducing any changes to the Constitution is no foreign under our Constitution but is a well- trodden path.

128.     In the absence of any evidence of a change in the original reason for establishing leaderships instead of courts, I am of the view that the reasons for having the relevant original provisions in the Constitution and the Organic Law remain unchanged.  This is on the important issue of leadership for our country and the system and process of dealing with leadership breaches.  The lack of the kind of evidence under consideration also means, the people who are the main stakeholders have not been given any opportunity to express their views.  It follows therefore that, the changes have been made by Parliament without any meaningful consultation, input and approval from the main stakeholders being the citizens of the country.  One might argue that parliamentarians are elected into parliament mainly amongst others to enact laws. Given that, there is no requirement for any consultation of the people before introducing any changes to the Constitutional laws of our country.   With the greatest respect such an argument fails to note that, the parliamentarians are elected into Parliament by their respective electorates with a duty for them to truly represent their electorate’s views on the floor of Parliament.  Through this process, the elected leaders are not given an automatic and an open licence to do as they please on the floor of Parliament in the name of the people.  Instead, they are under an obligation to first meaningfully seek and secure the views of the people they represent and only after having done so, act in accordance with the views of their people.  This fits in well with the well accept principle that a democratic government such as ours, is one that is for and by the people.   

129.     The peoples’ wishes could be ascertained in the way CPC did or the various committees that have done for the changes to the Provincial Government system through which the people’s views were meaningfully sought and obtained and based on which, the appropriate legislation came through. Whilst this might involve a lot of costs and time, they should not be the reason to fail to get the specific wishes of the people concerning any major changes to our country’s Constitution and what is provided for in it.  Legitimacy in what Parliament does comes from the people and is therefore important that Parliament acts in accordance with the wishes of the people which is meaningfully sought and obtained.  Anything done in the name of the people without their endorsement will no doubt amount to an abuse of the power and the privilege placed in them by their respective electorates.

Second reason

130.     The second reason I wish to add follows on from the first reason. This is focused mainly on the requirements of the Constitution itself for a proper and valid amendments to important constitutional law provisions.  Subdivision B to Part II, Sections 13 to 17 of the Constitution provides for the way in which the provisions of the Constitution could be altered or amended. At the same time, Part XII, Sections 260 to 263 of the Constitution provide for a review of the Constitution through a General Constitutional Commission and such other subordinate committees.  The Constitutional and Law Reform Commission Act 2004 (CLRC Act), has since replaced the General Constitutional Commission and it successors with the Constitutional and Law Reform Commission (CLRC).

131.     This CLRC’s powers and functions are as a granted to it by the Constitution and its enabling legislation.  It main task is to review the workings of the Constitution and provide a report to Parliament through the Speaker.  A combined reading of these provisions in the Constitution makes it clear in my respectful view, that any proposed change to the Constitution would have to come through the CLRC which would do a report on the need and justification for the change and recommend the required changes to Parliament through the Speaker of Parliament.  The proposed changes once finalized by way of a draft would have to be fully published in the National Gazette and distributed to all members of Parliament to enable their debate upon it and appropriately vote on it.  The draft would then be put through the Parliamentary process as defined in Subdivision B of Part II of the Constitution and ultimately enacted into law in accordance with the prescribed process.   

132.     In the present case, there is no evidence before the Court of how and when these requirements of the Constitution were met.  I note that Section 12 of the CLRC Act provides for the functions of the Commission.  Subsection (2)(a)(iv) specifically vest in the Commission the duty to “review the laws of Papua New Guinea with a view to systematic development and reform.” This duty includes reviews and recommendations for “the adoption of new and more effective methods for the administration of the laws and the dispensation of justice.”  The leadership tribunal process is a system of administering and dispensation of justice in the Leadership Code, breaches and enforcement of the principles enshrined in that Code and relevant provisions of the Constitution. The amendments concerned the process of a leadership tribunal which is responsible for the administration of justice in this particular area of leadership in the public sector. This necessitated an involvement of the CLRC to carry out the necessary review under its enabling provisions of the Constitution as well as its enable Act, consult the people get their views and make the appropriate recommendations to Parliament.  There is no evidence of the CLRC being involved at any stage of the process leading to the amendments.  It should follow therefore that the amendments could also be unconstitutional for a failure to follow the process provided for by the Constitution itself for any amendment of its provisions. 

Third reason

133.     The third additional reason I give is this. If the first most important questions are somehow answered in favour of the amendments in the present case, there is another question to overcome by those supporting the amendments.  The question is, can only the procedural aspects of a leadership tribunal change without changing the nature of the tribunal itself?  The answer is simply no.  As already noted, our founding fathers made a deliberate choice through the relevant original provisions of the Constitution with the support of our people to have a tribunal to deal with any leadership breaches and not a court.  Hence, under our constitutional scheme, a leadership tribunal deals with all leadership breaches.  Some of the breaches could also constitute criminal offences.  Others are purely disciplinary in nature. Prior to the amendments, both kinds of leadership breaches get dealt with as disciplinary matters using an administrative process which has no “regard to the legal formalities or the rules of evidence”. The leadership breaches which also constitute criminal offences do not get dealt with by a leadership tribunal as criminal matters in any manner or form.  They are instead, left to the criminal process which involves a formal court to pick up and have them dealt, which hardly happens.  There is no automatic carrying over of any finding of guilt or innocence from the tribunal’s decision to any subsequent criminal proceeding. That being the case, the original constitutional provisions under consideration logically did not allow for a leadership tribunal to apply the criminal process.  

134.     There has been no corresponding expressed amendment to the relevant provisions or the whole of the leadership breaches disciplinary process to have the nature of leadership tribunals changed to courts to allow for the “legal formalities and the strict compliance with the rules of evidence and the provisions of the Evidence Act…” to apply.  The amendments are thus incomplete.  In that incompleteness, the amendments effectively convert leadership tribunals into courts of law applying legal formalities and the strict rules of evidence.  This, in my view amounts to an indirect amendment which is prohibited by the provisions of Section 16 of the Constitution.  This provision in relevant parts reads:

No Constitutional Law takes effect so as to affect the operation of any provision of such a law in force immediately before the commencement of the first-mentioned law unless it was made in the manner and form required for the alteration of that provision.

QUESTION 3: SUSPENSION FROM OFFICE 

135.     I now turn to a consideration of the third question of when does a leader who is the subject of a leadership breach allegation suspended. Section 28 of the Constitution is the starting point.  The section reads:

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.

136.     This being a constitutional provision I remind myself of the principles governing the interpretation of any constitutional law and other statutory provisions in our jurisdiction.  The principles are well settled.  As noted in many decisions of the National and this Court, Wilson J, stated the relevant principles in PLAR No 1 of 1980 [1980] PNGLR 326. After discussing the different approaches to statutory interpretation, he said:

… there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the “mischief” rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ‘paramount consideration to the dispensation of justice’.

137.     Many subsequent cases in which the Supreme and National Courts have been called upon to interpret legislative provisions, they have consistently allowed themselves to be guided by these principles. An example of that happening is in the case of SCR No 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council (2002) SC693. There, the Supreme Court said in the context of the Value Added Tax legislation:  

… it is now an accepted principle of both constitutional and other statutory interpretation, that provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning.   This is so as to give effect to the intent of Parliament behind the provisions in question.  There is a long line of case authority on that.

138.     Section 28 of the Constitution is an important part of the Constitution and the Organic Law dealing with the most important matter of leadership of our country at various levels. The object of this provision can easily be ascertained from the final report of the CPC.  The CPC devoted Chapter 3 of its final report to the question of leadership.  In this chapter, it made the most crucial point that a nation’s success is dependent on her people and its leadership. Of the two, it emphasised the importance of having leaders who are loyal to the country and “are resolutely dedicated to the service of their people.”

139.     At paragraph 4 and 5, it went on to state the responsibilities of leadership and what that means in these terms:

4.  In his public office, a leader’s first responsibility is to the people he … represents or on whose behalf he is working.  This responsibility must override self-interest. A leader’s first loyalty must be his office, not himself. Such priority of loyalties might in fact mean some personal loss of opportunity or benefit, but this personal and official responsibility of a leader is assumed when he takes office, and it continues throughout his entire tenure of office.

5. A leader’s loyalty to his office must spring from his genuine concern for his country. It is always expected of a patriot that he will put his country‘s interest before his own.  In the event of any conflict of interests, the interests of the people he serves must prevail over his own personal interest.  The higher the office held in the state, the more serious the office-holder’s responsibility. The greater the power, the greater the obligations of the person holding the powerful position.  The power he holds is not meant for his own honour and fame; much less is it for his own material aggrandizement. The power he holds is for the betterment for the citizens of Papua New Guinea.

140.     Thereafter, the CPC discussed our national duty to build our nation through the provision of quality leadership by the leaders, elected and appointed alike.  It then made this pertinent statement are at paragraph 10:

… [T]he people naturally expect great things of their leaders, who can set the tone for the whole nation and make a positive contribution to the national morale. For without being able to formalise their sentiments, the citizens like to see embodied in their leaders all that is best in the nation; and they like to have their leaders worthy of identifying themselves with. To this deep and traditional feeling, the leaders must respond positively and truly. By doing so they will build up the confidence of the people, and give the nation additional solidarity, so that the citizens, inspired by the high stands set by elected representatives and officials, can feel one with their leaders in contributing to and consolidating the national ethos.

141.     From these most powerful statements of the CPC on the most important matter of leadership, one thing is very clear. Our founding fathers intended that at all levels of government and society we should have leaders who are completely loyal to the country and her citizens. They would be “resolutely dedicated to the service of their people, even to the point of making personal sacrifices for the sake and interest of their country.   They would thus be selfless and put their national interest ahead of their own personal interests.  Through such leadership they would promote solidarity and build and have a strong and powerful nation.  In order to achieve that end, the CPC recommended, and the Parliament ultimately incorporated into our constitutional laws the provisions of the Leadership Code and the relevant provisions of the Constitution and the Organic Law concerning leadership, which includes Section 28 of the Constitution. 

142.     As already noted, Section 28 of the Constitution has been the subject of a number of Supreme Court decisions.  This starts with the decision in SCR No 2 of 1982; Re Opai Kunangel [1991] PNGLR 1 and several subsequent decisions of this Court.  The latest are the decisions in Pruaitch v Chronox Manek (No 1) (2010) SC1052 (per Kirriwom, Gavara-Nanu and Davani JJ),  and Pruaitch v Manek (No 2) (2011) SC1093 (per Sakora, Lenalia and Manuhu JJ), and the decision in Somare v Manek [2011] 1 PNGLR 220 (per Salika DCJ, Kirriwom and Kandakasi JJ).  

143.     The decision in the last case, Somare v Manek, said of the provision:

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 Sections 94, 142(6) and 182 of the Constitution for instance.  Hence, with the exception of the leaders covered under specific provisions like, Sections 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.

144.     That decision reviewed all the earlier decisions and concluded at paragraph 69 in these terms: 

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.  

145.    Then most importantly at paragraph 70, the Court went on to say:

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 Section 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 Section 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. ...

146.     Before arriving at that decision, the Court gave some consideration to the object or purpose of having this provision in the context of the whole of the Leadership Code and its enforcement.  The Court then commented:

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.

147.     Further, the Court went on to note that the practice in developed democracies like England, Australia, New Zealand, the United States and elsewhere where we copied our system of government and leadership from in these terms:

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.

148.     Turning to PNG the Court noted:

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.

149.     The first case as noted, was the SCR No 2 of 1982; Re Opai Kunangel case.  There, Mr Opai Kunangel who us facing several leadership breach charges and was before a leadership tribunal resigned both as a Minister of State and as a Member of Parliament.  The Court noted that, apart from the purpose of his resignation, the leader did resign voluntarily amidst allegations of misconduct in office.

150.     The second leader to resign or step aside as considered by the Court was Sir Julius Chan. Sir Julius decided to step down as Prime Minister during the Sandline crisis.  The Court noted:

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.

151.      The Court also noted sadly that after these two cases, there has been no further case of leaders under allegations of leadership or criminal law breaches voluntarily resigning or stepping aside for investigations and appropriate proceedings to be concluded.  Instead, it has become a norm for leaders to fight hard to and are continuing to occupy their respective offices and function whilst they are under investigations or being charged.  The Court also noted that:

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 tampering with evidence, interfering with witnesses, swindling of funds or otherwise seriously abusing their powers knowing that, they may not last long in those offices.

152.    In that regard, the Court noted that the decision in Pruaitch No 1 correctly observed that when this happens:

... [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. 

153.     After carefully considering the matters it discussed the Court went on to say:

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 Kunangel 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.

154.     The Court also noted that the decision in Pruaitch No 2 failed to do the following:

(1)	refer to or discuss and demonstrate how the various authorities and various provisions of the Constitution and the Organic Law Pruaitch No. 1 referred to and relied upon were wrong and therefore not good law for them to follow;

(2)	acknowledge and have any regard to the established tradition in other countries which have a legal system like that of ours as the Court discussed and at least followed by Sir Julius Chan and Opai Kunangel and the good purpose that tradition serves; and

(3)	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 Section 94 in case of the Governor-General, Section 142(6) in the case of the Prime Minister and Section 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.  

155.      Having regard to all the foregoing, I am of the view that this Court’s duty is to interpret the provisions in question in a fair large and liberal way so as to give effect to the provisions’ purpose or intent within the overall purpose and scheme of the Leadership Code and the relevant constitutional provisions.  With the exceptions of the decisions in Pruaitch (No 1) and Somare v Manek, no argument has been presented or view expressed that is aimed at giving effect to the purpose or intent of Section 28 of the Constitution. Notwithstanding the technical arguments against the decision or views expressed in Pruaitch (No 1) and Somare v Manek, the views expressed therein are valid and on point.  They seek to uphold and give effect to the purpose of having these provisions for the reasons given in those decisions.  As noted, the object is to protect the public office held by a leader who is alleged to have breached his duties and the people of Papua New Guinea. A contrary approach allows for a leader to continue in office and abuse his or her powers and privileges in the ways pointed out in these two decisions much to the loss and disappointment of our people.   A few more hours or a day is all that might take for persons intend on promoting and protecting their own personal interest and not that of his or people and the country to do more harm when they know they have been caught and may not be holding onto their respective positions any more.  Taking a view contrary to the one expressed in Pruaitch (No 1) and Somare v Manek in a legal landscape in which there is still a ready challenge to the process that eventually leads to the actual appointment and commencement of a leadership tribunal despite clear pronouncements of this Court as in the five-member decision in Eremas Wartoto v The State (2015) SC1411, would run contrary to the spirit of the whole of the Leadership Code and the relevant provisions of the Constitution.  For the reasons given in Pruaitch (No 1) and Somare v Manek and the ones I have expressed here, I endorse the views expressed in those cases.  Consequently, my answer to the third question is that suspension under Section 28 of the Constitution takes effect upon a decision being made to refer a leader to the Leadership Tribunal. 

156.     BATARI J: I have the benefit of reading and considering the draft opinion of Justice Cannings on the three questions the subject of this Special Reference. I concur with the opinion of his Honour without qualification and respectfully adopt the reasons and statements of principle and conclusions therein, and I have nothing to add.  

157.     CANNINGS J: Three questions of constitutional interpretation and application have been referred to the Supreme Court by the Ombudsman Commission (the referrer) under Section 19(1) of the Constitution. 

158.     Questions 1 and 2 relate to a 2006 amendment to Section 27(4) (tribunals) of the Organic Law on the Duties and Responsibilities of Leadership, by which a Leadership Tribunal is required to “make due inquiry into the matter referred to it, with legal formalities and strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48) …”. 

159.     Question 3 relates to the timing of suspension from duty of a leader who is referred to a leadership tribunal. It requires interpretation of Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership, which states: “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”.

160.     The Prime Minister and the Speaker of the National Parliament were granted leave to intervene and designated as first and second interveners respectively.

QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.

161.     The positions of the parties on how this question should be answered are:

Ombudsman Commission (Referrer ) 	Prime Minister
(1st intervener)	Speaker
(2nd intervener)	
Yes	No	No 	

162.     Prior to the 2006 amendment of the Organic Law, Section 27(4) stated:

The tribunal shall make due inquiry into the matter referred to it, without regard to legal formalities or the rules of evidence, and may inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. [Emphasis added.]

163.     The Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 contained just one section, which states:

Section 27 is amended in Subsection (4) by repealing the words “without regard to legal formalities or the rules of evidence” and replacing them with the words “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act, (Chapter 48).”

164.     As a consequence, Section 27(4) (tribunals) now states:

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. [Emphasis added.]

Referrer’s argument 

165.     The Ombudsman Commission argues that the amended Section 27(4) is inconsistent with Section 28(5) of the Constitution, which provides:

Proceedings under Subsection (1)(g) [Leadership Tribunal proceedings] are not judicial proceedings but are subject to the principles of natural justice, and—

(a)	no such proceedings are a bar to any other proceedings provided for by law; and
(b)	no other proceedings provided for by law are a bar to proceedings under that paragraph. [Emphasis added.]

166.     Dr Narokobi, for the Commission, submitted that the effect of the 2006 amendment is to require a Leadership Tribunal to conduct its proceedings in the same way that a Court in the National Judicial System conducts its proceedings. It is argued that Leadership Tribunal proceedings have become judicial proceedings, contrary to Section 28(5) of the Constitution, which states that Leadership Tribunal proceedings “are not judicial proceedings”. 

167.     It is argued that there is an inconsistency between Section 28(5) of the Constitution and Section 27(4) of the Organic Law, and that the 2006 Amendment Law, being the Law that created the inconsistency, and the amended Section 27(4) are invalid and ineffective pursuant to Section 11 (Constitution etc as supreme law) of the Constitution, which provides:

This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.
 
Interveners’ argument 

168.     The interveners – the Prime Minister and the Speaker – say there is no inconsistency between Section 28(5) of the Constitution and Section 27(4) of the Organic Law. Mr Maliso for the Prime Minister and Mr Egan for the Speaker submitted that the 2006 amendment affects only the procedures of a leadership tribunal. It has no effect on any substantive laws to be administered or enforced by a tribunal. Leadership tribunals have not been elevated to the status of a court, and the tribunal’s proceedings have not become “judicial proceedings”. 

169.     It was contended that there are good reasons for insisting that leadership tribunals adhere to the rules of evidence as a tribunal is a quasi-judicial body and its proceedings have a potentially serious and detrimental effect on a leader (and in the case of elected leaders, their constituents). Its proceedings must be conducted rigorously and the proper way of ensuring that is to impose strict procedural requirements. 

The issue

170.     The issue is whether the 2006 amendment makes Leadership Tribunal proceedings “judicial proceedings”. If yes, the amendment is inconsistent with Section 28(5) of the Constitution and invalid. If no, there is no inconsistency and the 2006 amendment survives. 

171.     The issue can be stated as simply as that because Section 11 of the Constitution is in mandatory terms. It will be observed that Division III.2 of the Constitution has only six sections:

•	Section 26 (application of division 2): sets out who is subject to the Leadership Code;

•	Section 27 (responsibilities of leadership): prescribes the fundamental obligations imposed on leaders and defines “misconduct in office”;

•	Section 28 (further provisions): provides for the making of an Organic Law to give effect to Division III.2 of the Constitution;

•	Section 29 (prosecution of misconduct in office): provides how and by whom allegations of misconduct in office are prosecuted;

•	Section 30 (other authority): provides for composition of investigating authorities (other than the Ombudsman Commission);

•	Section 31 (disqualifications on dismissal): sets out the consequences of a leader being dismissed from office. 

172.     Section 28 is the provision in Division III.2 that provides for the making of an Organic Law to give effect to the Leadership Code. It begins by stating:

(1)	For the purposes of this Division, an Organic Law – …

(g)	shall establish independent tribunals that—

(i)	shall investigate and determine any cases of alleged or suspected misconduct in office referred to them in accordance with the Organic Law; and
(ii)	are required subject to Subsection (1A), to recommend to the appropriate authority that a person found guilty of misconduct in office be dismissed from office or position; and

173.     Section 28(5) prescribes in mandatory terms how the proceedings of the independent tribunals established under Section 28(1)(g) are to be conducted:

(5)	Proceedings under Subsection (1)(g) are not judicial proceedings but are subject to the principles of natural justice, and—

(a)	no such proceedings are a bar to any other proceedings provided for by law; and

(b)	no other proceedings provided for by law are a bar to proceedings under that paragraph. [Emphasis added.]

174.     Section 28(5) imposes two requirements:

•	tribunals are not to be judicial proceedings; and

•	the proceedings of the tribunal must comply with the principles of natural justice. 

CPC recommendations 

175.     Section 28(5) reflects the recommendations of the Constitutional Planning Committee as to the nature of Leadership Tribunal proceedings. They are not to be judicial proceedings. In Chapter 3 (The Leadership Code) of its Final Report, the CPC stated at paragraphs 94-96:

We have given careful consideration to the question as to the kind of tribunal best suited to dealing with alleged breaches of the Code and have decided that although all members of the tribunal should be drawn from the judiciary, the tribunal should be separate from an ordinary court. We feel that breaches of the Code are disciplinary offences rather than criminal offences (though some breaches would also constitute criminal offences and be dealt with as such). …

These tribunals should have all necessary powers and authority to conduct the hearing, summon witnesses, take evidence, make decisions and otherwise function as judicial bodies. We envisage that they may adopt procedures which are somewhat more informal than those of a court, but that there will be adequate protection of the rights of those charged with a breach of the Code.  [Emphasis added.]

What was not changed by the 2006 amendment?

176.     It is useful to firstly consider what was not amended. Section 27(4) still obliges the tribunal to:

•	“make due inquiry into the matter referred to it”; and 

•	conduct its proceedings in “compliance with the principles of natural justice”.

177.     Section 27(4) still authorises the tribunal to:

•	“inform itself in such manner as it thinks proper” (subject to compliance with the principles of natural justice).

What obligations have been removed by the 2006 amendment?

178.     These are the obligations to make due inquiry:

•	without regard to legal formalities; and 

•	without regard to the rules of evidence.

What new obligations are imposed by the 2006 amendment?

179.     Those obligations have been replaced by two new ones. The tribunal is to make due inquiry:

•	with legal formalities; and 

•	in strict compliance with the rules of evidence and the provisions of the Evidence Act.

“Legal formalities”

180.     The term “legal formalities” is not defined by the Organic Law or any other law. It is not a technical term.  It is not a straightforward task to pinpoint its meaning. The best way to define it is to identify decision-making bodies or forums that can be clearly said to adopt such formalities. The best examples in Papua New Guinea are the Courts, in particular the Supreme Court, the National Court and to a lesser extent the District Courts. 

“Legal formalities”, in my view, entails adherence to the procedures, protocols and decorum of a superior court. For example:

•	tribunal members should be gowned, and in the case of Judges wigged;

•	tribunal members should be addressed according to their position as Judges (“Your Honour”) or Magistrates (“Your Worship”);

•	lawyers should be gowned;

•	parties, counsel, and all other persons in the tribunal room should rise and show obeisance whenever a tribunal member enters or leaves the tribunal room;

•	any person entering or leaving the tribunal room while the tribunal is sitting should bow to the tribunal members.

“Rules of evidence”

181.     The term “rules of evidence” is easier to define. It refers to the body of laws that regulate the admissibility of evidence in court proceedings. In Papua New Guinea, rules of evidence have their source in both the underlying law and in statutory law, in particular the Evidence Act Chapter 48. Amongst the rules of evidence forming part of the underlying law are those relating to:

•	admissibility

•	burden of proof

•	character evidence 

•	circumstantial evidence

•	cross-examination

•	doctrine of completeness

•	corroboration

•	examination-in-chief

•	fresh evidence

•	handwriting 

•	hearsay

•	hostile witnesses

•	identification evidence 

•	judicial notice

•	legal professional privilege

•	opinion evidence 

•	re-examination

•	relevance

•	rule in Browne v Dunn  

•	rules re a voir dire.
 
182.     The Evidence Act prescribes rules, in addition to the underlying law rules, pertaining to many specific evidentiary issues that arise in court proceedings. For example:

•	Section 9: Witness interested or convicted of offence

•	Section 10: Persons present without subpoena

•	Section 14: Accused as witness for prosecution

•	Section 15: Accused as witness as to prior convictions, etc

•	Section 18: Communications during marriage

•	Section 19: Communications to clergymen and medical practitioners

•	Section 20: Dying declarations

•	Section 21: Discrediting of witness

•	Section 22: Contradictory statements of witness

•	Section 23: Cross-examination as to previous statements

•	Section 25: Proof of previous conviction of witness

•	Section 26: Cross-examination as to credit

•	Section 32: Proof by attesting witnesses

•	Division III.2 (Sections 33- 37): Evidence by affidavit

•	Section 61: Business records 

•	Section 62: Racial origin

•	Section 63: Age

•	Division III.5 (Sections 64-67): Computerized information

•	Division III.6 (Sections 68-90): Photographic and machine reproductions 

•	Part V (Sections 91-94): Special provisions relating to bankers’ books.

What is the practical effect of the 2006 amendment?

183.     A tribunal is now, in my view, obliged to:

•	adhere to the procedures, protocols and decorum of a superior court; and 

•	comply with the rules of evidence prescribed by the underlying law and by the Evidence Act in the same manner and to the same extent as those rules are applied in most civil and criminal proceedings of the National Court.

Does the 2006 amendment make Leadership Tribunal proceedings “judicial proceedings”?

184.     I am persuaded by the careful and considered submissions of Dr Narokobi that this critical issue must be answered in the affirmative, for two fundamental reasons. 

185.      First, the only other tribunals or decision-making bodies in Papua New Guinea that are subject to the obligation to adhere to legal formalities and strictly comply with the rules of evidence when performing their functions are the Courts. 

186.     Secondly, the amendment puts in place special procedures for leadership tribunals dealing with a certain class of leaders, which are inconsistent with those that must be applied, pursuant to the Constitution, in tribunals for other leaders, namely constitutional office-holders.

Only courts are subject to legal formalities and rules of evidence 

187.     The only decision-making authorities in Papua New Guinea that are required to comply with legal formalities and the rules of evidence are the Courts, particularly the superior courts (the Supreme Court and the National Court) comprising the National Judicial System under Section 155 (the national judicial system) of the Constitution. These are obligations and expectations that arise by practice and convention, rather than by legislative prescription. Even then, they are not overriding obligations imposed on every court, in every case.

188.     Some courts, such as the Village Courts, and Land Courts, are specifically required to not apply the rules of evidence (Village Courts Act, Section 59 (evidence etc); Land Disputes Settlement Act Chapter No 45, Section 35 (practice and procedure of local land courts).

189.     In the National Court there are some proceedings in which legal formalities and the rules of evidence will not apply. For example Section 217 (real justice to be observed) of the Organic Law on National and Local-level Government Elections provides that in determining election petitions:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not. [Emphasis added.]

190.     Section 66 (conduct of the proceedings generally) of the Juvenile justice Act 2014 provides that in criminal proceedings regarding juveniles:

A Court shall, with due regard to a juvenile's procedural rights, conduct proceedings in an informal manner to encourage maximum participation by the juvenile and the juvenile's parents. [Emphasis added.]

191.     As for administrative tribunals, which are not established as courts, some are obliged to not comply with legal formalities and the rules of evidence. For example Disciplinary Committees established under the Teaching Service Act 1988 to determine disciplinary charges against members of the Teaching Service are subject to procedural requirements under Section 87(5) (proceedings before committee):

The Disciplinary Committee shall make a thorough investigation without regard to legal forms or solemnities or the rules of evidence, and may inform itself on any matter in such manner as it thinks proper. [Emphasis added.]

192.     Section 57(3) (inquiry to be held) of the Accountants Act 1996 provides that in relation to inquiries by the Accountants Statutory Committee regarding accountants:

In conducting the inquiry, the Accountants Statutory Committee is not bound by technical rules of evidence or by legal procedures, but may inform itself in such manner as it thinks fit. [Emphasis added.]

193.     Many administrative tribunals, including disciplinary tribunals that have powers and functions similar to those of a leadership tribunal, are not subject to any express procedural requirements about formalities and the rules of evidence. For example, Section 53(1) (powers and procedures of the committee) of the Lawyers Act 1986 provides that in relation to proceedings of the Lawyers Statutory Committee:

The Committee shall have the powers of a Commission of Inquiry under the Commissions of Inquiry Act (Chapter 31), but may otherwise determine its own procedures when enquiring into complaints of improper conduct and shall observe the rules of natural justice in carrying out an inquiry. 

194.     There are no courts in the National Judicial System and no administrative tribunals that are subject to an express legislative requirement, similar to that now imposed on Leadership Tribunals by Section 27(4) of the Organic Law, that its proceedings be subject to legal formalities and the rules of evidence. 

195.     The Courts that are subject to such requirements – in particular the Supreme Court, the National Court and the District Courts – adhere to legal formalities and the rules of evidence by convention and practice. Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is unique. This reinforces the conclusion that the practical effect of the 2006 amendment to the Organic Law is to require that a Leadership Tribunal be conducted as if it were a proceeding of the National Court, which is quintessentially a judicial proceeding,    

Special procedures for certain leaders 

196.     The 2006 amendment has created a stark difference in the way that Leadership Tribunals are to be conducted, depending on the category of leader whose conduct is the subject of inquiry. As the Supreme Court (Kapi CJ, Injia DCJ, Sakora J, Kirriwom J) explained in SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011, all leaders are subject to the Leadership Code. However, the Constitutional Laws recognise that there are different categories of leader according to criteria such as:

•	manner of appointment of tribunal;

•	composition of the tribunal;

•	manner and timing of suspension from duty; 

•	grounds of removal from office.

197.     The Supreme Court explained ((2008) SC1011 at para 27) that in light of those criteria (in particular the manner of appointment and composition of the tribunal) there are actually five categories of leaders:

(a)	Chief Justice;

(b)	other Judges, the Public Prosecutor, the Public Solicitor and the Chief Magistrate

(c)	other constitutional office-holders

(d)	Prime Minister

(e)	all other leaders. 

198.     Those in categories (a), (b) and (c) are constitutional office-holders.  As the Supreme Court said in Application by Herman Joseph Leahy (2006) SC855, constitutional office-holders stand in a unique position in the structure of government. They form an exclusive group, defined by Section 221 of the Constitution to consist only of the following:

•	Auditor-General;

•	Chief Magistrate;

•	Clerk of the Parliament;

•	Electoral Commissioner;

•	Judges (including the Chief Justice and Deputy Chief Justice);

•	members of the Ombudsman Commission;

•	members of the Public Services Commission;

•	Public Prosecutor; 

•	Public Solicitor;

•	the holder of any other office declared by an Organic Law or an Act of the Parliament to be a constitutional office (of which there are presently none).

199.     If a Leadership Tribunal were appointed to investigate and report on whether there were good grounds for removal from office of the Chief Justice or any other Judge or the Public Prosecutor, the Public Solicitor or the Chief Magistrate, the tribunal would be constituted and have its proceedings regulated by Section 181 (constitution, etc, of tribunals) of the Constitution, which states:

(1)	A tribunal for the purposes of Section 179 (removal from office of Chief Justice) or 180 (removal from office of other Judges, etc) shall consist of a Chairman and two other members, each of whom must be—

(a)	a Judge or former Judge of the Supreme Court or of the National Court; or
(b)	a former Judge or acting Judge of the pre-Independence Supreme Court; or
(c)	a Judge or former Judge of a court of unlimited jurisdiction of a country with a legal system similar to that of Papua New Guinea, or of a court to which an appeal from such a court lies.

(2)	The tribunal shall make due inquiry into any matter referred to it without regard to legal formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. [Emphasis added.] 

200.     If a Leadership Tribunal were appointed to investigate and report on whether there were good grounds for removal from office of any other constitutional office-holder (a member of the Ombudsman Commission,  the Electoral Commissioner, the Clerk of the Parliament, a member of the Public Services Commission or the Auditor-General), the tribunal would be constituted under Section 4 (Constitutional Office-holders Rights Tribunal) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, which states:

(1)	There is hereby established a Constitutional Office-holders Rights Tribunal.

(2)	The Tribunal shall consist of a Chairman and two other members, each of whom must be a Judge of the National Court.

201.      The tribunal’s proceedings would be regulated by Section 6 (tribunal not bound by legal formalities, etc) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, which states:

The tribunal shall make due inquiry into any matter referred to it without regard to legal formalities or the rules of evidence, and shall inform itself in such manner as it thinks proper, subject to compliance with the principles of natural justice. [Emphasis added.]

202.     The scenario created by the 2006 amendment is thus:

•	if the leader the subject of inquiry by a tribunal is a constitutional office-holder, the tribunal makes due inquiry into the matter referred to it “without regard to legal formalities or the rules of evidence”; but,

•	if the leader the subject of inquiry by a tribunal is not a constitutional office-holder, the tribunal makes 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”.  

203.     Constitutional office-holders have a special place in the structure of government. They have a high level of independence, security of tenure and guarantee of emoluments and facilities not enjoyed by other leaders (Application by Sir Makena Geno (No 1) (2015) SC1455; Application by Sir Makena Geno (No 2) (2016) SC1581; and see generally, A J Regan, O Jessep and E Kwa, Twenty Years of the Papua New Guinea Constitution, Lawbook Co © 2001, A J Regan, Chapter 15: “Protection of the Independence of Constitutional Office-holders”, pp 233-252). 

204.     It is a curious by-product – to say the least – of the 2006 amendment to the Organic Law, that leaders who are not constitutional office-holders now enjoy a greater level of protection – given that that is the evident purpose of the amendment – when they are before a Leadership Tribunal, than a constitutional office-holder. 

205.     This is an odious anomaly which cannot be constitutionally condoned. It further reinforces the conclusion that the effect of the 2006 amendment is to transform Leadership Tribunal proceedings regarding non-constitutional office-holders into judicial proceedings.   

Conclusion re question 1 

206.     The effect of the 2006 amendment to Section 27(5) of the Organic Law on the Duties and Responsibilities of Leadership is to require Leadership Tribunals to be conducted in the same manner that court proceedings are conducted, the practical effect of which is to render Leadership Tribunal proceedings “judicial proceedings”. The amendment only applies in relation to leaders who are not constitutional office-holders, and gives non-constitutional office-holders a greater level of protection than constitutional office-holders.  This is a serious constitutional anomaly, in conflict with Section 28(5) of the Constitution, which requires that Leadership Tribunal proceedings “are not judicial proceedings”. The 2006 amendment is inconsistent with Section 28(5) and therefore invalid and ineffective and unconstitutional. 

Answer to question 1 (Is the 2006 amendment invalid and ineffective?)

Yes.

QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?

The positions of the parties are:

Ombudsman Commission (Referrer ) 	Prime Minister
(1st intervener)	Speaker
 (2nd intervener)	
Procedures would be similar to that used in court proceedings but no change to the standard of proof 	Procedures would be similar to that used in court	Rules of evidence shall  apply	

207.     As my answer to question 1 is yes, it is unnecessary to answer this question. However, I make the following remarks.

208.     I have already addressed the practical effect of the 2006 amendment in my opinion on question 1. The phrase “with legal formalities and strict compliance with the rules of evidence …” means that:

•	tribunals must to adhere to the protocols and decorum of a superior court, eg tribunal members to be gowned and wigged and addressed according to their position as judges or magistrates; lawyers to be gowned; and 

•	the rules of evidence must be strictly applied in the same manner and to the same extent as they are applied in proceedings of the National Court.

209.     In Re James Eki Mopio [1981] PNGLR 416 the Supreme Court (Kidu CJ, Kearney DCJ, Andrew J, Pratt J, Miles J) addressed the question of the appropriate rules as to standard of proof (and burden of proof) to be applied in leadership tribunals. The Court held:

… there is no absolute degree or standard of proof to be applied by the Leadership Tribunal. The Tribunal must be reasonably satisfied of the truth of the allegations or denials. In reaching such a conclusion it must give full weight to the gravity of a charge of misconduct in office by a person subject to the Leadership Code, the adverse consequences which follow and of the duty to act judicially and in compliance with the principles of natural justice. In practical terms the standard is not as high as the criminal proof beyond reasonable doubt but in our opinion, the very nature of the offence of misconduct in office created by the Constitution and the Organic Law on the Duties and Responsibilities of Leadership, will require a higher standard of proof than that ordinarily applicable in civil cases, namely proof on a balance or preponderance of probabilities. In matters involving accusations amounting to criminal conduct, the standard must be close to that applicable in a criminal trial.

210.     Those principles have since 1981 been consistently applied in Leadership Tribunals and endorsed in numerous decisions of the National Court and the Supreme Court. In my view, the 2006 amendment does not amend the rules of evidence as to standard of proof that apply in leadership tribunals. 

Answer to question 2 (what does “with legal formalities and in strict compliance with the rules of evidence” mean?) 

211.     It is unnecessary to answer this question. However, Leadership Tribunal proceedings are to be conducted as if they were proceedings of the National Court. The rules of evidence as to standard of proof, however, remain as stated in Mopio’s case. 

QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect? Is it:

(a)	When the Public Prosecutor refers the leader to the appropriate authority?

(b)	When the appropriate authority appoints a tribunal?

(c)	When the Public Prosecutor presents the reference, that is the charge and statement of reasons, to the tribunal?

[(d)] In circumstances other than the above?

212.     The positions of the parties are:

Ombudsman Commission (Referrer ) 	Prime Minister
(1st intervener)	Speaker
 (2nd intervener)	
(d): when the Ombudsman Commission refers the matter to the Public Prosecutor.	(c): when the Public Prosecutor refers the matter to the tribunal.	(d): the moment the Public Prosecutor makes the decision to refer a leader to a leadership tribunal.	

213.     This question concerns Section 28(1) (suspension) of the Organic Law on the Duties and Responsibilities of Leadership, which states:

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.

214.     It raises the question of when, or at what point in the process, is “a matter … referred to a tribunal”. The answer is – as Section 28(1) indicates – found in Section 27, (tribunals), in Section 27(2) to be precise.

215.     Section 27 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. [Emphasis added]

(8)	The Judicial and Legal Services Commission shall determine the matters referred to in Paragraph (d)(iii) of the definition "the appropriate tribunal".

Referring “a matter” to the tribunal 

216.     In my view it is clear that “a matter” is referred to a tribunal when the Public Prosecutor (or in an appropriate case, the Ombudsman Commission, using its ‘reserve’ power to prosecute a matter under Section 29(2) of the Constitution and Sections 27(1)(b) and (3) of the Organic Law) does just that: refers the matter to the tribunal, ie when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the Ombudsman Commission’s statement of reasons before the Leadership Tribunal at a public hearing. 
 
217.     The Organic Law does not say how or in what manner a matter is to be referred. That is in my view inconsequential. Provided that the Public Prosecutor (or in an appropriate case the Ombudsman Commission), with some discernible formality, “refers … the matter” to the tribunal, that is the trigger to automatic suspension of the leader, by operation of Section 28(1) of the Constitution. 

218.     The practice has long been that the Public Prosecutor refers the matter at a hearing of the tribunal, conducted in public. In my view that is the proper and most desirable and transparent way in which to comply with the constitutional requirements. It is conceivable that the Public Prosecutor could refer the matter by post or by personal service on the chairman of the tribunal or by email. All of those unconventional (albeit in my view undesirable) practices would constitute referral of the matter and be constitutionally adequate to trigger suspension.

219.     Both Section 28(1) and Section 27(1) speak in terms of a matter being referred to a tribunal. The act of referring the matter to the tribunal presupposes that the tribunal exists. It has been appointed. Unless and until it is appointed, it does not exist. It is a non-entity. The Public Prosecutor (or in an appropriate case, the Ombudsman Commission) cannot refer a matter to a non-entity. 

The Ombudsman Commission’s argument 

220.     That is why I cannot agree with the Ombudsman Commission’s argument that a leader is suspended when it refers the matter (together with the statement of reasons for its opinion that there is a prima facie case that the leader is guilty of misconduct) to the Public Prosecutor. That process takes place under Section 28(1) of the Organic Law. That is a separate process to, and it takes place before, the referral of the matter to the tribunal under Section 28(2). 

221.     Incidentally, the Ombudsman Commission’s argument did not fall within any of the scenarios outlined in question 3, which is a curious way of answering a question that it itself drafted. Be that as it may, I find no merit in the Commission’s argument, which is not in line with the clear and straightforward words of the Organic Law. 

The approach taken in Pruaitch (No 1) and in Somare v Manek 

222.     I also cannot agree, with respect, with the opinion of the Judges (Kirriwom J, Gavara-Nanu J, Davani J) comprising the Supreme Court in Pruaitch  v Manek (No 1) (2010) SC1052, which was that suspension takes effect when the Chief Justice appoints the tribunal. 

223.     That opinion was almost echoed by the Supreme Court (Salika DCJ, Kirriwom J, Kandakasi J) in Somare v Manek [2011] 1 PNGLR 220, where the Court opined that a leader was suspended when the Public Prosecutor requested the Chief Justice to appoint a tribunal. In both cases the opinion of the Court, though emphatically and unanimously expressed, was obiter dicta. I have nonetheless considered the opinions on their merits. I conclude that both approaches involve an interpretation which, in my respectful opinion, runs counter to the clear and straightforward words of the Organic Law. 

The Speaker’s argument 

224.     I also cannot agree with the submission of Mr Egan for the Speaker, that a leader is suspended the moment the Public Prosecutor makes the decision to refer a leader to the leadership tribunal. The making of such a decision is recognised by Section 27(2) of the Organic Law, by use of the words “If the Public Prosecutor considers that the matter should be proceeded with, he shall refer the matter … to the appropriate tribunal”. 

225.     However the making of the decision is not the trigger to suspension. The trigger, under Section 28(1), is “where a matter has been referred to a tribunal”. A matter is only referred to a tribunal:

•	after the Public Prosecutor “considers that the matter should be proceeded with”; and 

•	after the Public Prosecutor requests the Chief Justice to appoint the tribunal; and 

•	after the Chief Justice appoints the tribunal. 

The Prime Minister’s argument 

226.     I uphold the submission of Mr Maliso for the Prime Minister that suspension takes effect at the moment the Public Prosecutor refers the matter to the tribunal. 

227.     I agree with the opinion of the Judges (Sakora J, Lenalia J, Manuhu J) comprising the Supreme Court in Pruaitch v Manek (No 2) (2011) SC1093, which provides authority for the position taken by the Prime Minister: the leader is suspended when the Public Prosecutor refers the matter to the tribunal, ie when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the statement of reasons before the Leadership Tribunal at a public hearing. This is scenario (c) in question 3.

An important qualification 

228.     Having said that, I need to make an important qualification. The question itself should have made the qualification, but the point was drawn out at the hearing of the Reference, and it must now be addressed. As I indicated earlier, there are, as explained by the Supreme Court in  SC Ref No 3 of 2005, Re Public Prosecutor’s Power to Request the Chief Justice to Appoint a Leadership Tribunal (2008) SC1011, different categories of leaders according to criteria such as:

•	manner of appointment of tribunal;

•	composition of the tribunal;

•	manner and timing of suspension from duty; 

•	grounds of removal from office.

229.     There are five categories of leaders:

(a)	Chief Justice

(b)	other Judges (including the Deputy Chief Justice), the Public Prosecutor, the Public Solicitor and the Chief Magistrate

(c)	other constitutional office-holders

(d)	Prime Minister

(e)	all other leaders. 

230.     Question 3 of this reference only relates to category (e): all other leaders. As to who these leaders are, it is necessary to refer to Section 26(1) (application of division 2) of the Constitution, which provides:

The provisions of this Division [III.2) apply to and in relation to—

(a)	the Prime Minister, the Deputy Prime Minister and the other Ministers; and

(b)	the Leader and Deputy Leader of the Opposition; and

(c)	all other members of the Parliament; and

(d)	members of Provincial Assemblies and Local-level Governments; and

(e)	all constitutional office-holders within the meaning of Section 221 (definitions); and

(f)	all heads of Departments of the National Public Service; and

(g)	all heads of or members of the boards or other controlling bodies of statutory authorities; and

(h)	the Commissioner of Police; and 

(i)	the Commander of the Defence Force; and

(j)		all ambassadors and other senior diplomatic and consular officials prescribed by an Organic Law or an Act of the Parliament; and

(k)	the public trustee; and

(l)		the personal staff of the Governor-General, the Ministers and the Leader and Deputy Leader of the Opposition; and

(m)	executive officers of registered political parties as defined by Section 128 ("registered political party"); and

(n)	persons holding such public offices as are declared under Subsection (3) to be offices to and in relation to which this Division applies.

231.     The category ‘any other leaders’ refers to all office-holders in Section 26(1) other than constitutional office-holders and the Prime Minister. Question 3 does not address the issue of when and how a constitutional office-holder or the Prime Minister is suspended. Though this issue is not directly raised by question 3, it was raised at the hearing of the Reference and I think it will be useful to address it now. The following table summarises my answer to question 3 and places it in the context of the same question, had it been asked in relation to the four other categories of leaders.

TIMING AND METHOD OF SUSPENSION OF
DIFFERENT CATEGORIES OF LEADERS
No	Category of leader	When and how is the leader suspended? 	Relevant law	
(a)	Chief Justice *	When, after the question of removal from office has been referred to a tribunal, the Head of State, acting with, and in accordance with, the advice of the National  Executive Council, decides as a matter of discretion to suspend the leader – thus suspension is not automatic and does not occur by operation of law. 
	Constitution, Section 182(1)(a) 	
(b)	Other Judges *, Public Prosecutor, Public Solicitor, Chief Magistrate *	When, after the question of removal from office has been referred to a tribunal, the Judicial and Legal Services Commission, decides as a matter of discretion to suspend the leader – thus suspension is not automatic and does not occur by operation of law.
 	Constitution, Section 182(1)(b) 	
(c)	Other constitutional office-holders, ie  members of the Ombudsman Commission,
Electoral Commissioner,
Clerk of the Parliament,
members of the Public Services Commission,
Auditor-General #
	When, after the question of removal from office has been referred to a tribunal, the appointing authority decides as a matter of discretion to suspend the leader – thus suspension is not automatic and does not occur by operation of law.
 	Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, Section 9(1)	
(d)	Prime Minister	When, after the tribunal has been appointed, the tribunal decides as a matter of discretion to suspend the leader – thus suspension is not automatic and does not occur by operation of law (In the Matter of Grand Chief Sir Michael Somare (2011) N4224).
 	Constitution, Section 142(6)(a) 	
(e)	All other leaders 	When, after the tribunal is appointed, the Public Prosecutor (or in an appropriate case, the Ombudsman Commission) refers the matter, together with the Ombudsman Commission’s statement of reasons, to the tribunal  – thus suspension is automatic and occurs by operation of law.	Organic Law on the Duties and Responsibilities of Leadership, Sections 27(2), 28(1)	
 
* 	In the case of suspension of the Chief Justice or any other Judge or the Chief Magistrate, the suspension from duty is not necessarily a complete suspension, due to Section 182(3) of the Constitution, which states: “Where at the time of the suspension, a suspended Judge or Chief Magistrate was dealing with any judicial proceedings, he may continue and complete those proceedings, unless the Judicial and Legal Services Commission in the case of the Chief Justice, or the Chief Justice in any other case, otherwise orders.”

# 	In the case of suspension of a member of the Ombudsman Commission, the Electoral Commissioner, the Clerk of the Parliament, a member of the Public Services Commission or the Auditor-General, the suspension from duty is not necessarily a complete suspension, due to Section 9(3) of the Organic Law on the Guarantee of the Rights and Independence of Constitutional Office-holders, which states: “Where at the time of the suspension a suspended constitutional office-holder was dealing with any quasi-judicial proceedings, he may continue and complete those proceedings, unless the appointing authority otherwise orders.”

Answer to question 3 (When does suspension of a leader take effect under Section 28(1) of the Organic Law?)

232.      Suspension of a leader (other than the Prime Minister and constitutional office-holders) automatically takes effect by operation of law when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the statement of reasons, to the Leadership Tribunal at a public hearing. The answer to question 3 is the scenario described in paragraph 3(c).
_____________________

233.     BY THE COURT: We summarise our opinions in the following table.

Question	Injia CJ	Kirriwom J	Kandakasi  J	Batari J	Cannings J	
QUESTION 1: Whether the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 in amending Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is inconsistent with Section 28(5) of the Constitution and therefore invalid and ineffective pursuant to Section 11 of the Constitution.
	Yes	Yes
	Yes
	Yes
	Yes
	
QUESTION 2: If the answer to question (1) is no, what does “with legal formalities and in strict compliance with the rules of evidence and the provisions of the Evidence Act (Chapter 48)” in Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership mean?
	Unnecessary to answer	Unnecessary to answer
	Unnecessary 
to answer
	Unnecessary to answer
	Unnecessary to answer
	
QUESTION 3: When does suspension of a leader under Section 28(1) of the Organic Law on the Duties and Responsibilities of Leadership take effect?	When the Public Prosecutor refers the matter (comprising the allegations of misconduct in office and the Ombudsman Commission’s statement of reasons) to the tribunal at a public hearing.	When the Chief Justice appoints the tribunal.	When the Public Prosecutor requests the Chief Justice to appoint the tribunal.	When the Public Prosecutor refers the matter (comprising the allegations of misconduct in office and the Ombudsman Commission’s statement of reasons) to the tribunal at a public hearing. 	When the Public Prosecutor refers the matter (comprising the allegations of misconduct in office and the Ombudsman Commission’s statement of reasons) to the tribunal at a public hearing.	

ORDER

234.      We make the following order reflecting the binding opinion of the Court, given under Sections 19(1) and 19(2) of the Constitution, arrived at by majority:

1	The three questions comprising this Special Reference are answered as follows:

question 1: yes, the 2006 amendment to Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership is invalid, ineffective and unconstitutional;

question 2: unnecessary to answer;

question 3:  suspension of a leader takes effect automatically by operation of law when the Public Prosecutor refers the matter (comprising the allegations of misconduct in office and the Ombudsman Commission’s statement of reasons) to the tribunal at a public hearing.  

2	It is accordingly declared that the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006 is invalid, ineffective and unconstitutional. 

3	It is further declared that for the purposes of Section 28(1) (suspension) of the Organic Law on the Duties and Responsibilities of Leadership suspension of a leader automatically takes effect by operation of law when the Public Prosecutor formally presents the allegations of misconduct in office accompanied by the statement of reasons, to the Leadership Tribunal at a public hearing.
________________________________________________________________
Counsel to the Commission: Lawyer for the Referrer		 	
Twivey Lawyers: Lawyers for the First Intervener		
Kawat Lawyers: Lawyers for the Second Intervener