SC1852
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SC REF NO 8 OF 2019

REFERENCE PURSUANT TO CONSTITUTION, SECTION 18(2)

MADE BY A TRIBUNAL COMPRISING 
THE HONOURABLE JUSTICE NICHOLAS MIVIRI (CHAIRMAN) AND SENIOR MAGISTRATES MICHAEL AIPE’E AND NANCY LIPAI 

RE JURISDICTION OF THE LEADERSHIP TRIBUNAL 

Waigani: Kandakasi DCJ, Batari J, 
Cannings J, David J, Hartshorn J
2019:  6th, 27th September 

CONSTITUTIONAL LAW – jurisdiction of leadership tribunal – whether a tribunal has jurisdiction if the matter referred to it by the Public Prosecutor is a matter referred to him by only two members of the Ombudsman Commission. 

CONSTITUTIONAL LAW – jurisdiction of Ombudsman Commission to refer a leader to Public Prosecutor for prosecution before a tribunal – whether referral can be made by two members of the Commission – Constitution, Sections 29, 217, Schedules 1.1, 1.4, 1.5, 1.12; Organic Law on the Duties and Responsibilities of Leadership, Section 27;  Organic Law on the Ombudsman Commission, Sections 3, 14. 

At the commencement of proceedings of a leadership tribunal the leader raised an objection to jurisdiction of the tribunal on the ground that the matter referred to it by the Public Prosecutor was a matter, which the Ombudsman Commission purported to refer to him, signed by only two members. The leader argued that under Section 217(1) of the Constitution the Commission is to consist of three members and a decision to refer a leader for prosecution must be made by three members of the Commission and the failure to adhere to the constitutional requirements rendered the referral a nullity, as it was not actually made by the Ombudsman Commission; and this meant the tribunal lacked jurisdiction. After considering opposing contentions by the Public Prosecutor the tribunal referred four questions to the Supreme Court under Section 18(2) of the Constitution, viz: (1) does the tribunal have jurisdiction to inquire into and determine a leadership referral where the quorum in referring is two comprising the Chief Ombudsman and an Ombudsman?; (2) what is the quorum within the meaning of Section 217(7) of the Constitution read together with the Organic Law on the Ombudsman Commission Section 14(3) which provides: “For the purposes of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two”? (3) is Section 217 conclusive as to the requirement of quorum for referral of a leader or are there exceptions?; (4) if so, by what authority are these exceptions allowed? 

Held: 

(1)	The tribunal has jurisdiction, despite a referral being made and signed by only two members of the Commission, because: (a) none of the Constitutional Laws relating to the powers and procedures of the Ombudsman Commission expressly require that any decision be made by three members of the Commission; (b) a majority of members of the Commission can do all acts and things permitted to be done under the Constitutional Laws, including making leadership referrals; (c) as there is ambiguity in the meaning and effect of various constitutional provisions, a purposive approach to interpretation is required; (d) fulfilment of the purposes and functions of the Ombudsman Commission would be curtailed if a decision to refer a leader for prosecution in every case had to be made by three members of the Commission; (e) where competing interpretations of Constitutional Laws are available, the Court must strive to arrive at solutions that are practical and workable; (f) allowing leadership referrals to be made by only two members of the Commission causes no prejudice to the leader; (g) if a decision to refer a leader for prosecution in every case had to be made by three members of the Commission, an avenue for abuse of the process of appointment of members of the Commission might be created; (h) the intention of the Constituent Assembly when making the laws dealing with referral of leaders for prosecution was not to require that a decision of the Ombudsman Commission be made in every case by three members of the Commission; (i) the Constitution and the Organic Laws are dynamic and evolving laws that must be interpreted in a way that gives effect to the needs and aspirations of the People, which presently require that leaders be more accountable and the Ombudsman Commission enforce the Leadership Code more effectively and efficiently.

(2)	The quorum in the Ombudsman Commission for purposes of making a leadership referral is two.

(3)	The question of whether the tribunal has jurisdiction is determined by a consideration of the combined effect of a number of provisions of the Constitutional Laws, not just Section 217 of the Constitution.

(4)	It is unnecessary to answer question 4. 

 Cases Cited

The following cases are cited in the judgment:

Hon Delilah Gore MP v Rigo Lua (2015) N5981
PNG Power Ltd v Ian Augerea (2013) SC1335
Reference by Western Highlands Provincial Executive (1995) SC486
SC Ref No 1 of 2000 Re Validity of Value Added Tax Act (2002) SC693
SC Ref No 1 of 2008, Reference by the Ombudsman Commission re the Organic Law on Provincial Governments and Local-Level Governments (Amendment No 10) Law 2006 (2010) SC1058
SC Ref No 2 of 1992, Reference by the Public Prosecutor [1992] PNGLR 336
SC Ref No 2 of 1995, Reference by Western Highlands Provincial Executive (1995) SC486
SC Ref No 5 of 2016; Reference by Justice Davani pursuant to Constitution, Section 18(2), Re Alleged improper borrowing of AUD1.239 billion (2017) SC1580
Special Reference by the Attorney-General (2016) SC1534
The State v Downer Constructions (PNG) Ltd (2009) SC979

REFERENCE

This is the determination by the Supreme Court of questions of constitutional interpretation and application referred it by a leadership tribunal under Section 18(2) of the Constitution.

Counsel

G J Sheppard & L Painap, for the First Intervener
P Kaluwin, the Second Intervener 
V L Narokobi & M Kik, for the Third Intervener

27th September, 2019 

1.      BY THE COURT: This is the determination of questions of constitutional interpretation and application referred to the Supreme Court by a leadership tribunal under Section 18(2) of the Constitution.

2.     The tribunal is constituted by Justice Miviri (chairman) and senior Magistrates Apie’e and Lipai. It has been appointed to investigate, inquire into and determine alleged misconduct in office by the Honourable John Simon MP, the member for Maprik Open (“the leader”). At the commencement of its proceedings, the leader raised an objection to jurisdiction of the tribunal on the ground that the matter referred to it by the Public Prosecutor was a matter, which the Ombudsman Commission  purported to refer to him, signed by only two members of the Commission. 

3.     The leader argued that under the Constitution the Commission is required to consist of three members and a decision to refer a leader for prosecution must be made, and the instrument of referral and statement of reasons for the Commission’s opinion must be signed, by three members of the Commission; and that the failure to adhere to the constitutional requirements rendered the referral a nullity, as it was not actually made by the Ombudsman Commission, which is the only body authorised to make such referrals; and this meant the tribunal lacked jurisdiction. 

4.     After considering opposing contentions by the Public Prosecutor the tribunal observed that there was no clear answer to the questions raised, there was no Supreme Court authority, the questions raised fundamental issues as to the tribunal’s jurisdiction and the questions were not trivial, vexatious or irrelevant. The tribunal referred four questions to the Supreme Court under Section 18(2) of the Constitution, which states:

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

THE QUESTIONS 

5.     The four questions are:

1.	Whether or not this Tribunal has jurisdiction to inquire into and determine a leadership referral where the quorum in referring is two comprising the Chief Ombudsman and an Ombudsman; here it was acting Chief Ombudsman Michael Dick and acting Ombudsman Richard Pagen against the leader.
2.	What is the quorum within the meaning of Section 217(7) of the Constitution read together with the Organic Law on the Ombudsman Commission Section 14(3) which provides: “For the purposes of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two.”

3.	Whether or not Section 217 is conclusive as to the requirement of quorum for referral of a leader or are there exceptions.

4.	If so, by what authority are these exceptions, if any, allowed.

PARTIES

6.      Leave was granted to three interveners to make submissions:

•	first intervener, the leader;
•	second intervener, the Public Prosecutor;
•	third intervener, the Ombudsman Commission. 

QUESTION 1: DOES THE TRIBUNAL HAVE JURISDICTION? 

7.     This is the key question, given that the Ombudsman Commission’s reference of the leader to the Public Prosecutor (which matter was later referred to the tribunal) was made by only two members of the Commission. It is an agreed fact that on the date of the decision to refer the leader to the Public Prosecutor, and on the date of signing the instruments of referral, the Commission had only two members. It is also agreed that the fact that those two members held acting, rather than substantive appointments, is immaterial for the purposes of this reference. It is the effect of there being only two members of the Commission at the relevant time, not the fact that they both held acting appointments, that is the contentious issue.

8.     The parties also agree that determination of the tribunal’s jurisdiction turns on whether the Ombudsman Commission had jurisdiction or an Ombudsman Commission existed to refer the leader to the Public Prosecutor.

Positions of parties 

9.     The leader argues that the Ombudsman Commission lacked jurisdiction or did not exist. This is because only two members of the Commission were appointed and the third member had not been appointed. Accordingly that position remained vacant at all material times. Hence the decision to refer him for prosecution was made by only two Ombudsmen who did not constitute the Ombudsman Commission. Therefore the purported referral to the Public Prosecutor was unconstitutional and void; and thus, the tribunal lacks jurisdiction. 

10.     The Public Prosecutor and the Ombudsman Commission argue that the Commission existed and had jurisdiction because the two members of the Commission who constituted the Commission at the relevant time, made the decision. Therefore, the tribunal has jurisdiction. 

Submissions for the leader

11.     Learned counsel for the leader, Mr Sheppard, submitted that the starting point for determining whether the Commission had jurisdiction is Section 217(1) of the Constitution, which provides:

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

12.     He stressed the use of the word “shall” and submitted that it is mandatory that the Commission consists of a Chief Ombudsman and two Ombudsmen. No provision is made for the Commission to consist of any less than three members. The powers and functions of the Commission, including, by virtue of Section 219(1)(d) –  “any functions conferred upon it by Division III.2 (leadership code)” – are conferred upon “the Ombudsman Commission”. Mr Sheppard referred in particular to Section 29(1) of the Constitution, which states:

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).

13.     Also relevant is Section 27(1) of the Organic Law on the Duties and Responsibilities of Leadership, which is the other Constitutional Law Acting Chief Ombudsman Dick and Acting Ombudsman Pagen relied on when purporting to refer the leader to the Public Prosecutor for prosecution. Section 27(1) states:

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).

14.     Further Mr Sheppard submitted that neither Section 29(1) of the Constitution nor Section 27(1) of the Organic Law allow a leader to be referred by any body or group of persons other than the “Ombudsman Commission” consisting of three members. Two is not sufficient. All instruments of referral, especially the statement of reasons required by Section 27(1), must be signed by the three members of the Commission.

15.     Furthermore, Mr Sheppard submitted that if the Public Prosecutor considers that a matter referred to him by the Ombudsman Commission should be proceeded with, he is obliged to refer “the matter” to the tribunal under Section  27(2) of the Organic Law, which states:

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).

16.     In so submitting, Mr Sheppard stressed that the Public Prosecutor can only refer a “matter” referred to him by the “Ombudsman Commission”. If a matter is referred to him by a body or group of persons other than the “Ombudsman Commission” consisting of three members, it is not a “matter” he can properly refer to a tribunal. Nor is it a matter, if he does refer it to the tribunal, capable of enlivening the jurisdiction of the tribunal. 

17.     Also Mr Sheppard stressed that whatever description is placed on the matter that was in fact referred to the Public Prosecutor, it was not a “matter” authorised by Section 27(1) of the Organic Law. It was not referred to the Public Prosecutor by the Ombudsman Commission. The statement of reasons given to the Public Prosecutor was simply a statement of reasons by Acting Chief Ombudsman Dick and Acting Ombudsman Pagen for their opinion that the leader was guilty of misconduct in office. It was not a statement of reasons by the Ombudsman Commission. It did not express the opinion of the Ombudsman Commission as, on the date of signing the statement, the Ombudsman Commission did not exist. The Commission only exists and has jurisdiction to refer leaders for prosecution when it consists of three members as required by Section 217(1) of the Constitution. 

18.     Mr Sheppard went on to submit that the words of the Constitution and the Organic Laws are plain and clear and only need to be applied by the Court to the facts of this case to show that what happened was unauthorised and unconstitutional. No “art of interpretation” (the turn of phrase coined by Kandakasi J, as he then was, in Special Reference by the Attorney-General (2016) SC1534) is required. A purposive approach, which might lead the court to inquire into the consequences of alternative interpretations, is unwarranted in this case as the words of the Constitutional Laws are very clear. Mr Sheppard cited various dicta in support of those propositions.

19.     This includes firstly the indication of Kapi DCJ (as he then was) in SC Ref No 2 of 1995, Reference by Western Highlands Provincial Executive (1995) SC486, that a purposive approach to constitutional interpretation is only warranted where:

… the words used in legislation do not have a natural and ordinary meaning or the words are ambiguous.

20.     Secondly, also Kapi DCJ’s observation in SC Ref No 2 of 1992, Reference by the Public Prosecutor [1992] PNGLR 336 that:

If judges under the thin disguise of construction of legislation amend the Constitutional Laws to fill in the gaps in such policy matters, they run the risk of endangering the public confidence and impartiality which is essential to the rule of law. For these reasons, these are matters best left to the elected representatives of the people.

21.     Thirdly, Injia CJ who said in SC Ref No 1 of 2008, Reference by the Ombudsman Commission re the Organic Law on Provincial Governments and Local-Level Governments (Amendment No 10) Law 2006 (2010) SC1058:
In cases where the word or expression used in the Constitution is clear and capable of being accorded its plain or ordinary meaning, then the Court should accord that meaning and apply it to the circumstances of the case before it. 
But often the Court is asked to interpret a word or expression in the Constitution in which its meaning may be in doubt. The Court must engage in a construction exercise that will produce the correct meaning of that word or expression. The Court must give a fair and liberal meaning to the constitutional provision in question, to ensure that the legislature’s intention, spirit and purpose expressed in the provision is achieved: Constitution, Schedule 1.5(2). The Court must adopt an expansive and purposive approach rather than a narrow and restrictive approach: PLAR No 1 of 1980 [1980] PNGLR 326; SCR No 2 of 1992, Special Reference by the Public Prosecutor [1992] PNGLR 336; SCR No 3 of 1986, Reference by Simbu Provincial Executive [1987] PNGLR 151; Haiveta v Wingti (No 3) [1994] PNGLR 192. The judges are urged to use "judicial ingenuity" in appropriate cases, to do justice”: Kearney J in The State v Independent Tribunal, Ex Parte Moses Sasakila [1976] PNGLR 491.  In a case where there are a number of possible interpretations open, the Court must avoid the interpretation which will or is likely to produce unjust and absurd situations or results.

22.      Finally Mr Sheppard submitted that various other provisions of the Constitutional Laws, such as Section 14 of the Organic Law on the Ombudsman Commission and Schedule 1.12 of the Constitution, argued by the Public Prosecutor and the Ombudsman Commission to justify what happened in this case, do not apply. Those provisions do not save what happened from being unconstitutional, and cannot confer jurisdiction on the tribunal, as it has none. 

Submissions by the Public Prosecutor 

23.     The Public Prosecutor, Mr Kaluwin, urged us to adopt the reasoning of Justice Gavara-Nanu in Hon Delilah Gore MP v Rigo Lua (2015) N5981. In that case his Honour refused an application for leave to seek judicial review of a decision of the Ombudsman Commission, constituted at the time by only two members, to refer a leader, the Honourable Delilah Gore MP, to the Public Prosecutor for prosecution before a leadership tribunal. The plaintiff, Ms Gore, relied on the same provision – Section 217(1) of the Constitution – as the leader in the present case to argue that the Commission was powerless to make leadership referrals when it had only two members. The plaintiff also argued that Section 14 of the Organic Law on the Ombudsman Commission, relied on by the Ombudsman Commission to justify its actions, had no application. Section 14 states:

(1)	The Commission shall meet at such times and places as are fixed by the Chief Ombudsman.

(2)	The Chief Ombudsman shall preside at all meetings of the Commission.

(3)	For the purposes of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two.

(4)	All matters before a meeting of the Commission shall be decided in accordance with the majority of votes.

(5)	In the event of an equality of votes on a matter, the Chief Ombudsman has a casting, as well as a deliberative, vote.

(6)	The Commission shall cause minutes of its meetings to be kept.

(7)	Subject to this Law, the procedures of the Commission are as determined by it.

24.     The plaintiff in that case argued that Section 14(3), which appears at first glance to provide for a quorum of only two members of the Commission, does not apply to leadership referrals as it only applies for “the purposes of conducting an inquiry under this Law” (the Organic Law on the Ombudsman Commission). Its application to leadership referrals was further excluded, it was argued, by Section 3 of the Organic Law on the Ombudsman Commission, which states:

Except as provided by any other law, this Law does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.

25.     It was further argued there that Schedule 1.12 of the Constitution, also relied on by the Ombudsman Commission to justify its actions, had no application. Schedule 1.12 states:

(1)	Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

(2)	Subsection (1) does not affect any requirement of a quorum, and, subject to Subsection (3), where no quorum is prescribed for a body the quorum is the full membership of the body.

(3)	A power conferred by a Constitutional Law, otherwise than on the body in question, to determine the procedures of a body includes power to determine a quorum.

(4)	The exception contained in Subsection (3) does not apply to the National Executive Council.

26.     Justice Gavara-Nanu ruled that the arguments of the plaintiff (which, Mr Kaluwin pointed out, are the same as those advanced by the leader in the present case) involved an overly narrow and literal approach to interpretation, which was not permitted when interpreting Constitutional Laws, and said:

In my respectful opinion, the above Constitutional and Organic Law provisions have been given a narrow legalistic construction by the plaintiff, thus sacrificing the spirit for the letter of the Constitution. Pursuant to the specific cannons of construction in Sections 9 and 10 of the Constitution, the Organic Law provisions are required to be read and construed subject to the terms of Schedule 1.5 of the Constitution … These provisions are in my opinion not intended to be given a restrictive construction and read in isolation from other relevant provisions of the Constitution … Reading and construing the above two provisions on their own by the plaintiff has in my opinion resulted in the two provisions being read out of their proper context.

27.     His Honour then concluded that the Ombudsman Commission had a quorum when two members of the Commission made the decision to refer the plaintiff to the Public Prosecutor for prosecution before a leadership tribunal; and that there was no arguable case that it lacked jurisdiction. His Honour therefore refused leave for judicial review. 

28.     Mr Kaluwin acknowledged that we are not bound by Justice Gavara-Nanu’s reasoning, as it was expressed in a decision of the National Court. However, he commended it to us as flawless, and it gives effect to the Leadership Code, rather than undermining its enforcement, which would happen if the narrow and literalist interpretation advanced by the leader were upheld. Mr Kaluwin stressed the significance of the constitutional provisions highlighted by Justice Gavara-Nanu.

29.     Justice Gavara-Nanu referred to the hierarchy of laws under Section 9 (the laws) of the Constitution, which states:

The laws of Papua New Guinea consist of—

(a)	this Constitution; and
(b)	the Organic Laws; and
(c)	the Acts of the Parliament; and
(d)	Emergency Regulations; and
(da)	the provincial laws; and
(e)	laws made under or adopted by or under this Constitution or any of those laws, including subordinate legislative enactments made under this Constitution or any of those laws; and
(f)	the underlying law,

and none other.

30.     Justice Gavara-Nanu emphasised the supremacy of the Constitution arising under Section 10 (construction of written laws) of the Constitution, which states:

All written laws (other than this Constitution) shall be read and construed subject to—

(a)	in any case—this Constitution; and
(b)	in the case of Acts of the Parliament—any relevant Organic Laws; and
(c)	in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,

and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.

31.     Justice Gavara-Nanu stressed some fundamental principles of constitutional interpretation in Schedule 1.5 (fair meaning to be given to language used) of the Constitution, which states:

(1)	Each Constitutional Law is intended to be read as a whole.

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

32.     Further, Mr Kaluwin asked us to consider the ramifications of upholding the leader’s arguments: whenever a member of the Ombudsman Commission was sick or unable to perform the powers and functions of office or unavailable or, as in the present case, there was a vacancy in office for a protracted period, the Commission would be rendered powerless to enforce the Leadership Code. 

33.    Finally, Mr Kaluwin submitted that a rejection of the leader’s arguments would cause the leader no prejudice. It would simply mean that the leadership matter regarding him would proceed before the tribunal. He will have the right to be heard and be entitled, as all leaders are, to the full protection of the law, and have the right to seek leave for judicial review of any decision of the tribunal adverse to him.

Submissions for the Ombudsman Commission

34.    Counsel to the Commission, Dr Narokobi, advanced similar submissions to those made by Mr Kaluwin. He agreed that the Court should take a purposive approach to interpretation of the Constitutional Laws, and give all provisions a fair and large interpretation, so as to give effect to the National Goals and Directive Principles and the Basic Social Obligations, and give paramount consideration to the dispensation of justice, as required by Sections 25, 63 and 158 of the Constitution.   

35.     Section 25 (implementation of the national goals and directive principles) of the Constitution states:

(1)	Except to the extent provided in Subsections (3) and (4), the National Goals and Directive Principles are non-justiciable.

(2)	Nevertheless, it is the duty of all governmental bodies to apply and give effect to them as far as lies within their respective powers.

(3)	Where any law, or any power conferred by any law (whether the power be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to give effect to the National Goals and Directive Principles, or at least not to derogate them, it is to be understood, applied or exercised, and shall be enforced, in that way.

(4)	Subsection (1) does not apply to the jurisdiction of the Ombudsman Commission or of any other body prescribed for the purposes of Division III.2 (leadership code), which shall take the National Goals and Directive Principles fully into account in all cases as appropriate.

36.     Section 63 (enforcement of the basic social obligations) of the Constitution states:

(1)	Except to the extent provided in Subsections (3) and (4), the Basic Social Obligations are non-justiciable.

(2)	Nevertheless, it is the duty of all governmental bodies to encourage compliance with them as far as lies within their respective powers.

(3)	Where any law, or any power conferred or duty imposed by any law (whether the power or duty be of a legislative, judicial, executive, administrative or other kind), can reasonably be understood, applied, exercised, complied with or enforced, without failing to give effect to the intention of the Parliament or to this Constitution, in such a way as to enforce or encourage compliance with the Basic Social Obligations, or at least not to derogate them, it is to be understood, applied, exercised, complied with or enforced in that way.

(4)	Subsection (1) does not apply in the exercise of the jurisdiction of the Ombudsman Commission or other body prescribed for the purposes of Division III.2 (leadership code), which shall take the Basic Social Obligations fully into account in all cases as appropriate.

37.     Section 158 (exercise of the judicial power) of the Constitution states:

(1)	Subject to this Constitution, the judicial authority of the People is vested in the National Judicial System.

(2)	In interpreting the law the courts shall give paramount consideration to the dispensation of justice.

38.     Dr Narokobi urged us to take into account the purposes of establishment of the Ombudsman Commission, and the functions of the Ombudsman Commission, prescribed by Sections 218 and 219(1) of the Constitution. 

39.     Section 218 (purposes of the commission) of the Constitution states:

The purposes of the establishment of the Ombudsman Commission are—

(a)	to ensure that all governmental bodies are responsive to the needs and aspirations of the People; and

(b)	to help in the improvement of the work of governmental bodies and the elimination of unfairness and discrimination by them; and

(c)	to help in the elimination of unfair or otherwise defective legislation and practices affecting or administered by governmental bodies; and

(d)	to supervise the enforcement of Division III.2 (leadership code).

40.     Section 219(1) (functions of the commission) of the Constitution states:

Subject to this section and to any Organic Law made for the purposes of Subsection (7), the functions of the Ombudsman Commission are—

(a)	to investigate, on its own initiative or on complaint by a person affected, any conduct on the part of—

(i)	any State Service or provincial service, or a member of any such service; or

(ii)	any other governmental body, or an officer or employee of a governmental body; or

(iii)	any local government body or an officer or employee of any such body; or

(iv)	any other body set up by statute—

(A)	that is wholly or mainly supported out of public moneys of Papua New Guinea; or
(B)	all of, or the majority of, the members of the controlling authority of which are appointed by the National Executive,

or an officer or employee of any such body; and

(v)	any member of the personal staff of the Governor-General, a Minister or the Leader or Deputy Leader of the Opposition; or

(vi)	any other body or person prescribed for the purpose by an Act of the Parliament, specified by or under an Organic Law in the exercise of a power or function vested in it or him by law in cases where the conduct is or may be wrong, taking into account, amongst other things, the National Goals and Directive Principles, the Basic Rights and the Basic Social Obligations, and

(b)	to investigate any defects in any law or administrative practice appearing from any such investigation; and

(c)	to investigate, either on its own initiative or on complaint by a person affected, any case of an alleged or suspected discriminatory practice within the meaning of a law prohibiting such practices; and

(d)	any functions conferred on it under Division III.2 (leadership code); and

(e)	any other functions conferred upon it by or under an Organic Law.

41.     Also, Dr Narokobi submitted that Sections 218(d) and 219(1)(d) show that a primary purpose of establishment and function of the Ombudsman Commission is enforcement of the Leadership Code. Central to enforcement of the Code is the Commission’s power to refer leaders for prosecution in cases where an investigation has resulted in a prima facie case that a leader has been guilty of misconduct in office. 

42.     In so submitting, Dr Narokobi joined the Public Prosecutor who submitted that one of the primary purposes of establishing the Commission and one of its primary functions would be defeated – or at least its ability to discharge that purpose and that function effectively would be curtailed – if the Court were to find that, in the circumstances of the present case, the Commission, and also the tribunal, lacked jurisdiction.

43.     Finally, Dr Narokobi submitted that this Court should interpret the Constitutional Laws in a purposive way, so as to make them and the constitutional institutions that they created, workable and functional. 

Relevant principles of Constitutional Law interpretation 

44.      As the case before us concerns the interpretation of the Constitution and other Constitutional Laws, it is important that we remind ourselves and be guided by the principles governing the interpretation of those laws. Those principles are now well settled in our jurisdiction. It started with the often-cited views expressed by Wilson J in PLAR No 1 of 1980 [1980] PNGLR 326, who 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’.

45.     A good number of subsequent decisions of the Supreme Court and the National Court have consistently allowed themselves to be guided by these principles. A good example of that is the decision of the Supreme Court in SC Ref No 1 of 2000 Re Validity of Value Added Tax Act (2002) SC693. There, the Court, having regard to the provisions of Schedule 1.5 (interpretation) of the Constitution said:

Going by this expressed dictation in the Constitution … 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.

46.     There are, however, two well-known exceptions to the above position of the law. The first is in cases where the words used in the legislation are so plain and clear that no art of interpretation is required. The second exception is in the area of tax legislation, where the strict interpretation rule applies. The reason for this exception is simple. For the imposition of a tax or charge against a subject, a clear and unambiguous intention needs to be shown in the statute. A failure to do so would result in an interpretation that is favourable to taxpayers. (See PNG Power Ltd v Ian Augerea (2013) SC1335 and the dissenting view of Kandakasi J, as he then was, in The State v Downer Constructions (PNG) Ltd (2009) SC979 and his Honour’s view in Special Reference by the Attorney-General (2016) SC1534 at para 65.)

Determination of question 1: does the tribunal have jurisdiction?

47.      We agree with the leader’s opening propositions that under Section 217(1) of the Constitution the Ombudsman Commission comprises of three members, a Chief Ombudsman and two Ombudsmen, and that the power in Section 29(1) of the Constitution and Section 27(1) of the Organic Law on the Duties and Responsibilities of Leadership to refer leaders for prosecution before a leadership tribunal, is conferred on the “Ombudsman Commission”. 

48.     However we do not agree that those propositions make it clear what happens – or cannot happen – when there is a vacancy in membership of the Commission. None of the provisions at the centre of this reference expressly require that decisions made under them, be by all three members. None of them expressly provides that if the Commission has only two members it ceases to exist or be able to function or exercise powers that are conferred on the “Ombudsman Commission”. Or that two members cannot decide to refer a leader for prosecution. This is not a case in which the words of the Constitutional Laws speak for themselves. The effect of the words is not clear and obvious. The “art of interpretation” is called for. 

49.      We start with Section 8 (principles of interpretation) of the Constitution, which provides:

For the purpose of the interpretation of this Constitution and the Organic Laws, the provisions of Schedule 1 (Rules for Shortening and Interpretation of the Constitutional Laws) applies and, subject to that Schedule, the underlying law applies.

50.      Schedule 1.1 (application of schedule 1) begins with these words:

(1)	The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.

(2)	Unless adopted by law for the purposes, they do not apply to any	 other law.

51.     We now turn to Schedule 1.12 (power of majority of more than two persons, and quorums), which contains two subsections of immediate relevance: 1.12(1) and 1.12(2). 

52.     Schedule 1.12(1) provides:

Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it.

53.     If that were all that Schedule 1.12 said, we could probably end the reference here. The Constitution and the two Organic Laws administered by the Ombudsman Commission require and permit acts and things “to be done by more than two persons”. The Commission, if fully constituted, is comprised of three persons. It would be easy to conclude, as Gavara-Nanu J did in Gore v Lua, that if there were at any time – such as in the present case – only two members of the Commission holding office, or available to make decisions, they would constitute a majority, and be able to do all acts or things permitted or required to be done, including referring leaders for prosecution. 

54.     But that is not all that Schedule 1.12 says. It goes on to qualify Schedule 1.12(1), with the rule in Schedule 1.12(2):

Subsection (1) does not affect any requirement of a quorum, and, subject to Subsection (3), where no quorum is prescribed for a body the quorum is the full membership of the body.

55.     The question of quorums in relation to the Ombudsman Commission is addressed in Section 14(3) of the Organic Law on the Ombudsman Commission, which provides:

For the purposes of conducting an inquiry under this Law, the quorum at a meeting of the Commission is two.

56.     We accept the leader’s argument that on its terms Section 14(3) only expressly provides for a quorum of two at meetings of the Commission conducted for the purposes of conducting an inquiry under the Organic Law on the Ombudsman Commission. Section 14(3) does not expressly provide for a quorum of two at meetings of the Commission conducted for other purposes, such as making a decision on whether to refer a leader for prosecution before a leadership tribunal.

57.      We also accept the leader’s argument that the limited operation of Section 14(3) is supported by Section 3 of the Organic Law on the Ombudsman Commission, which provides:

Except as provided by any other law, this Law does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.

58.     Does that mean that in the case of all acts or things permitted to be done by the Ombudsman Commission, other than conducting an inquiry under the Organic Law on the Ombudsman Commission, the quorum – including making a decision on whether to refer a leader for prosecution before a leadership tribunal – is  the full membership of the body, three members of the Commission? As we already noted, the leader says yes. The Public Prosecutor and the Ombudsman Commission say no. 

59.     We have decided that the answer is no, for the following reasons:

(a)	No express provision. As we have already noted, none of the Constitutional Laws relating to the powers and procedures of the Ombudsman Commission expressly require that any decision be that of the full complement of three members of the Commission.

(b)	No requirement for quorum. The decision to refer a leader for prosecution is made under Section 29(1) of the Constitution and Section 27(1) of the Organic Law on the Duties and Responsibilities of Leadership, neither of which require a meeting of the Commission to take place. Thus the issue of whether there is a “quorum” (a word which connotes a minimum number of persons physically present to transact business) does not arise. Schedule 1.12(2) (the provision which ostensibly is the strongest source of the leader’s arguments, as it is expressed as an exception to Schedule 1.12(1)) does not apply. This means the proposition in Schedule 1.12(1) applies with full force and effect: a majority (ie two) of the members of the Commission can do all acts and things permitted to be done under the Constitutional Laws, including making leadership referrals.   

(c)	Ambiguity calls for purposive interpretation. As there is ambiguity in the meaning and effect of various constitutional provisions, we are authorised, indeed required, to adopt a purposive approach to interpretation. We endorse the approach of Gavara-Nanu J in Gore v Lua (2015) N5981. We are obliged to read each Constitutional Law as a whole and to identify the purpose of those Laws and interpret them in a way that advances, and does not defeat, the purpose. We are obliged to give words, expressions and propositions in constitutional provisions their fair, large and liberal meaning.

(d)	Purposes and functions must be considered. We uphold the Ombudsman Commission’s argument that one of the primary purposes of its establishment as an independent constitutional institution and one of its primary functions is enforcement of the Leadership Code: to set high standards of behaviour for leaders and to give extensive powers of investigation to the Ombudsman Commission and have a fair and transparent constitutional process whereby leaders are called to account if there is a prima facie case of misconduct in office. We are persuaded by the submissions of the Public Prosecutor and the Ombudsman Commission that fulfilment of those purposes and functions would tend to be curtailed if a decision to refer a leader for prosecution in every case had to be made by three members of the Commission, or if each time there is a vacancy in the membership of the Ombudsman Commission, the Commission ‘ceases to exist’.  Practical problems would inevitably arise if, for example, a member of the Commission fell ill, was out of the country or otherwise unavailable to make decisions or sign documents or (as in the present case) there was a vacancy in office, especially for a protracted period. Allowing Ombudsman Commission decisions to be made by majority would enhance the enforcement of the Leadership Code. Interpreting the Constitutional Laws so as to authorise that procedure is the preferred outcome. 

(e)	Practical and workable solutions. Where competing interpretations of Constitutional Laws are available, the Court must strive to arrive at solutions that are practical and workable and allow constitutional processes, such as leadership referrals, to operate fluidly without unnecessary brakes or interruptions. This beacon of interpretation is provided by Section 11(2) (Constitution etc as supreme law) of the Constitution, which provides that “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.” Allowing  a majority of two members of the Commission to make a decision to refer a leader for prosecution and sign a statement of reasons represents a practical and workable solution to the problem created by the absence of one member of the Commission for whatever reasons. It would also provide clarity in the event that the members of the Commission were not unanimous in their opinion on whether there was prima facie evidence that a leader was guilty of misconduct in office. It would make it clear that the opinion of the majority prevails. The competing interpretation, that the Commission must wait until the third member of the Commission becomes available or an appointment is made to fill a vacancy, or that the members must be unanimous in their opinion on whether a leader should be referred for prosecution, would unnecessarily interrupt the constitutional process.

(f)	Lack of prejudice. We uphold the argument of the Public Prosecutor and the Ombudsman Commission that allowing leadership referrals to be made by only two members of the Commission causes no prejudice to the leader referred for prosecution. A leader is entitled to due process and the full protection of the law, from the beginning to the end of the constitutional process, irrespective of whether the referral decision is made by two or three members of the Commission. 

(g)	Potential for abuse. If a decision to refer a leader for prosecution in every case had to be made by three members of the Commission, an avenue for abuse or manipulation of the process of appointment of members of the Commission might be created. It is possible to conceive of a situation in which a vacancy in the office of a member of the Commission could be seen as an opportunity for those with the weight of numbers on the Ombudsman Appointments Committee (established under Section 217(2) of the Constitution) to maintain the vacancy for a protracted period, safe in the knowledge that by doing so, the remaining members of the Commission would be powerless to refer any leader for prosecution. 

(h)	Intention of Constituent Assembly. We must consider the history and status of the Constitution and the two Organic Laws at the centre of this reference. These laws are the constitutional bedrock of the nation. They were made at Independence in 1975, not by the National Parliament, but by the Constituent Assembly. The provisions we are interpreting have not been substantially amended. It is worthwhile asking: what was the intention of the Constituent Assembly when making this complex suite of laws dealing with referral of leaders for prosecution? Was the intention to ensure that a decision of the Ombudsman Commission be made in each and every case by three members of the Commission? No, we find no evidence of that. The evidence is to the contrary. The Constitutional Planning Committee in its Final Report, Chapter 11, The Ombudsman Commission, paragraph 16, recommended: “The quorum necessary for a meeting of the Commission for the purpose of conducting an inquiry is two members of the Commission.” No indication was given that the quorum of two would not apply to Leadership Code matters.

(i)	Constitutional Laws speak from time to time. The Constitution and the Organic Laws are dynamic and evolving laws, that must be interpreted in a way that gives effect to the changing and contemporary needs and aspirations of the People of Papua New Guinea. This is another maxim of constitutional interpretation, required by Schedule 1.4 of the Constitution: “A Constitutional Law speaks from time to time.” Even if there were evidence that the Constituent Assembly, in 1975, intended to make it mandatory for all three members of the Ombudsman Commission to make a decision to refer a leader for prosecution, we would need to pause and think carefully, in 2019, before giving effect to that intention. As Injia CJ stated in SC Ref No 1 of 2008, Reference by the Ombudsman Commission re the Organic Law on Provincial Governments and Local-Level Governments (Amendment No 10) Law 2006 (2010) SC1058: “In discharging its function of interpreting the laws, the Court must give paramount consideration to the dispensation of justice: Constitution, Schedule 158(2). The Constitution is a living document, dynamic in character and it speaks from time to time: Constitution, Schedule 1.4. Each Constitutional Law is intended to be read as a whole: Constitution, Schedule 1.5(1).” And, as the Supreme Court stated in SC Ref No 5 of 2016; Reference by Justice Davani pursuant to Constitution, Section 18(2), Re Alleged improper borrowing of AUD1.239 billion (2017) SC1580: the process of constitutional interpretation requires the Supreme Court to reassess from time to time whether a legislative intention expressed in 1975 is still relevant and appropriate to the present circumstances of the country, and whether it still represents the will of the People. This is particularly the case when considering competing interpretations of Constitutional Laws regarding leaders: “Forty-one years after Independence the People of Papua New Guinea are increasingly concerned about the conduct of leaders, especially political leaders. They are concerned about accountability and transparency of all levels of government. They are more suspicious of corruption in government than 41 years ago. The People, we consider, are desirous of more accountability being imposed on leaders … rather than less.” So, even if the intention were expressed in the Constitutional Laws that each leadership referral be made by three members of the Commission – however, we stress, we find no such intention – we would be inclined to consider, as part of the process of interpreting the Constitutional Laws as living and dynamic expressions of the aspirations of the People, that such an intention has been overtaken by the modern will of the People: leaders must be more accountable and the Ombudsman Commission must be able to more effectively and efficiently enforce the Leadership Code. Those objectives would be enhanced by confirming that Ombudsman Commission decisions on leadership referrals can be made by only two members of the Commission. 

Answer to question 1

60.     The answer to the question – does this tribunal have jurisdiction? – is yes.

QUESTION 2: WHAT IS THE QUORUM?

61.     Question 2 is in these terms:

What is the quorum within the meaning of Section 217(7) of the Constitution read together with the Organic Law on the Ombudsman Commission Section 14(3)?

62.     It is strictly speaking unnecessary to answer this question as the critical question is No 1 and we have answered it in the affirmative. Neither of the provisions referred to in question No 2 are directly relevant to the question of whether the tribunal has jurisdiction. Section 217(7) of the Constitution simply states:

An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.

63.     Section 14(3) of the Organic Law on the Ombudsman Commission is the provision that states that for the purposes of an inquiry under that Law the quorum for a meeting of the Commission is two. We have already found that it is not, by itself, determinative of the issues raised by question 1.

64.     We appreciate why the learned members of the tribunal wanted to have guidance as to the issue of a quorum amongst the members of the Ombudsman Commission. Though it is unnecessary to answer the question posed, we will give an answer that puts the issue beyond doubt. 

Answer to question 2

65.     The answer to the question – what is the quorum in the Ombudsman Commission for purposes of making a leadership referral? – is two.

QUESTION 3: IS SECTION 217 CONCLUSIVE?

66.     Question 3 is in these terms:

Whether or not Section 217 is conclusive as to the requirement of quorum for referral of a leader or are there exceptions.

67.     This question refers generally to Section 217 of the Constitution, which is a lengthy provision, covering a broad range of matters. It states:

(1)	There shall be an Ombudsman Commission, consisting of a Chief Ombudsman and two Ombudsmen.

(2)	The members of the Commission shall be appointed by the Head of State, acting with, and in accordance with, the advice of an Ombudsman Appointments Committee consisting of—

(a)	the Prime Minister, who shall be Chairman; and
(b)	the Chief Justice; and
(c)	the Leader of the Opposition; and
(d)	the Chairman of the appropriate Permanent Parliamentary Committee, or, if the Chairman is not a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, the Deputy Chairman of that Committee; and
(e)	the Chairman of the Public Services Commission.

(3)	The salary and other conditions of employment of the Chief Ombudsman shall not be less than or inferior to the salary and other conditions of employment of a Judge other than the Chief Justice and the Deputy Chief Justice without taking into account any conditions of employment personal to that Judge.

(4)	The salary and other conditions of employment of the Ombudsmen shall be not less than or inferior to the salary and other conditions of employment of the Public Prosecutor, without taking into account any conditions of employment personal to any particular Public Prosecutor.

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

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

(7)	An Organic Law shall make further provision in respect of the appointment, powers, procedures and immunity of the Commission.

(8)	In this section "conduct" includes—

(a)	any action or inaction relating to a matter of administration; and
(b)	any alleged action or inaction relating to a matter of administration.

68.     Though Section 217 provides for establishment of the Commission and its composition, appointment and conditions of employment of its members,  its independence and related matters including its powers and procedures, it does not address the issue of the number of members of the Commission who have to make and sign a leadership referral. 

69.     We reiterate that the question of whether the tribunal has jurisdiction (which depended on whether the Ombudsman Commission, consisting of only two members at the relevant time, had jurisdiction to refer the leader for prosecution) was determined by a consideration of the combined effect of a number of provisions of the Constitutional Laws, not just Section 217 of the Constitution. 

Answer to question 3

70.     The answer to the question – is Section 217 conclusive of the requirement for a quorum? – is no.

QUESTION 4: BY WHAT AUTHORITY ARE EXCEPTIONS ALLOWED?

71.     Question 4 is in these terms:

If so, [ie if there are exceptions to the requirement of a quorum] by what authority are these exceptions, if any, allowed.

72.     It is unnecessary to answer this question as it is framed in terms of there being “exceptions” to an undefined proposition. We reiterate that the critical question is No 1 and we have already answered it in the affirmative. 

Answer to question 4

73.     It is unnecessary to answer this question. 

ORDER 

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

1.	The questions referred to the Supreme Court are answered as follows:

ANSWERS TO QUESTIONS REFERRED
No	Question	Answer	
1	Whether or not this tribunal has jurisdiction to inquire into and determine a leadership referral where the quorum in referring is two comprising the Chief Ombudsman and an Ombudsman. 	Yes	
2	What is the quorum within the meaning of Section 217(7) of the Constitution read together with the Organic Law on the Ombudsman Commission Section 14(3)?	Two	
3	Whether or not Section 217 is conclusive as to the requirement of quorum for referral of a leader or are there exceptions.	No 	
4	If so, by what authority are these exceptions, if any, allowed.	Not necessary to answer	

2.	The Registrar shall forthwith convey this Order and a copy of the Judgment of the Court to the Leadership Tribunal that referred the questions to this Court.  

3.	The interveners shall bear their own costs of the proceedings.  

Judgment accordingly. 

_______________________________________________________________
Young & Williams Lawyers:	Lawyers for the First Intervener		 
Public Prosecutor: Lawyer for the Second Intervener	
Counsel to the Commission:  Lawyer for the Third Intervener