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SCR No 2 of 1992; Re The Leadership Code [1992] PNGLR 336 (31 July 1992)

Papua New Guinea Law Reports - 1992

[1992] PNGLR 336 - SCR No 2 of 1992; Re The Leadership Code 

[1992] PNGLR 336

SC440

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

SC REFERENCE NO 2 OF 1992

IN THE MATTER OF A SPECIAL REFERENCE PURSUANT TO CONSTITUTION SECTION 19

IN THE MATTER OF A REFERENCE BY THE PUBLIC PROSECUTOR

Waigani

Kidu CJ Kapi DCJ Amet Los Andrew JJ

28-30 April 1992

31 July 1992

CONSTITUTIONAL LAW - Organic Law on the Duties and Responsibilities of Leadership - The Leadership Code - The purpose of.

CONSTITUTIONAL LAW - National Goals and Directive Principles - Application of.

CONSTITUTIONAL INTERPRETATION - Sch 1.5 - Fair and liberal meaning - The purposive and expansive approach - National Goals and Directive Principles as aid - Constitution, s 25.

PRECEDENTS - Supreme Court's power to overrule its own earlier decision - Constitution Sch 2.9(1).

Facts

The reference arose in circumstances where allegations of misconduct in office were referred to Leadership Tribunals against members of the National Parliament who resigned from Parliament before the Tribunals completed their investigations and determined the charges. The questions referred were (1) whether the resignation ousted or deprived the Tribunals of jurisdiction to continue to investigate and determine the charges of misconduct against the leaders. And (2) whether the Tribunal has jurisdiction to hear and determine a reference where the holder of an office ceases to occupy that office which he held at the time of the alleged misconduct but is holder of another office within the Leadership Code.

A previous decision of the Supreme Court had addressed some of the questions raised: Supreme Court Reference No 5 of 1980; Re Joseph Auna [1980] PNGLR 500. The Court was invited to review the correctness of that decision and over rule it.

Held

1.       Schedule 2.9(1) is a clear constitutional power and freedom which cannot be qualified and/or inhibited by guidelines of practice. It is, therefore, not wrong in principle for the Supreme Court in a proper case, properly addressed and advised, to over-rule its earlier decision by the same number of judges. (Kapi Dep. CJ dissenting).

Sch 2.9(1) provides:

"All decisions of law by the Supreme Court are binding on all other courts, but not on itself."

2.       The entire thrust and primary purpose of the Leadership Code is to preserve the people of Papua New Guinea from improper and corrupt conduct by their leaders. Approved and adopted in Constitutional Reference No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR 460.

3.       A leader is subject to and can only be prosecuted under the Leadership Code whilst he currently holds an office to which the Code applies. Adopted and affirmed in Re Joseph Auna (supra).

4.       A person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held, and if found guilty, dismissed from his current office. Adopted and affirmed in Re Joseph Auna. Kapi DCJ dissenting:

"I have reached the conclusion that this issue could not have been decided by Auna's case and, at the most, it can be regarded as obiter dictum. I consider that this issue has been raised for the first time before us in this Court."

"We are simply construing the provisions of the Constitution and the Organic Law and not formulating a new principle of law. If the Parliament intended this to be the case, it would have said so clearly in the Constitution or the Organic Law."

"In essence, [this] proposition is a formulation of a new principle by the Court. This is not a conclusion reached by construction of the relevant constitutional laws but rather it is judicial legislation in the guise of judicial interpretation."

5.       Section 25 of the Constitution is entirely relevant to a generous interpretation of the Constitution, avoiding the austerity of tabulated legalism and enables the National Goals and Directive Principles to be fully taken into account. Adopted and referred to Barnett J in SCR No 3 of 1986; Reference By Simbu Provincial Executive [1987] PNGLR 151 at 174.

Section 25 provides: "Implementation of the National Goals and Directive Principles. (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.

Cases Cited

Papua New Guinea cases cited

Acting Public Solicitor v Uname Aumane [1980] PNGLR 510

Chan v Investigating Authority [1988] PNGLR 43.

Epi v Farapo (1983) unreported SC 247.

Public Employees Association of Papua New Guinea v Public Services Commission [1983] PNGLR 206.

Public Prosecutor v Apava Keru [1985] PNGLR 78.

Public Prosecutor v John Aia of Mondo [1978] PNGLR 224.

Re Leo Robert Morgan [1978] PNGLR 460.

Reference By Simbu Provincial Executive [1987] PNGLR 151.

Reg v Harley [1977-72] P&NGLR 399.

Reg v Pia-Afu [1971-72] P&NGLR 393.

Sangumu Wauta v The State [1978] PNGLR 326.

SCR No 5 of 1980; Re Joseph Auna [1980] PNGLR 500.

SCR No 2 of 1981 [1982] PNGLR 150.

SCR No 2 of 1982; Re Opai Kunangel Amin (1982) Unpublished SC231.

SCR No 3 of 1982 [1982] PNGLR 405.

SCR No 5 of 1982; Re Petition of Hugo Berghuser [1982] PNGLR 379.

SCR No 1 of 1984; Re Minimum Penalties Legislation [1984] PNGLR 314.

SCR No 5 of 1985; Re Raz v Mataue [1985] PNGLR 329.

State v Independent Tribunal; Ex parte Sasakila [1976] PNGLR 491.

State v Misimb Kais [1978] PNGLR 241.

State v Senior Stipendary Magistrate [1976] PNGLR 344.

State v Wik Kor [1983] PNGLR 24.

Other cases cited

Aoko v Fagbemi [1961] All NLR 400.

Daymond v South West Water Authority [1976] AC 609.

Johnson v Moreton [1980] AC 37.

Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319.

Municipality of St Leonards v Williams [1966] TASStRp 17; [1966] Tas SR 166.

R v Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534.

R v Hucklebridge [1980] 1 WLR 1284.

Counsel

D Canning, for the Public Prosecutor.

M Unagui, for the Public Prosecutor.

D Keta, for the Attorney General.

31 July 1992

KIDU CJ AMET LOS ANDREW JJ: This reference has raised a number of fundamentally important questions concerning the constitutional powers and jurisdiction of a Leadership Tribunal (the Tribunal) established by virtue of the Constitution s 28(1)(g) and s 27(7) of the Organic Law on the Duties and Responsibilities of Leadership (hereafter the Organic Law) to investigate and determine allegations of misconduct in office against persons subject to the Leadership Code (the Code) - that is, persons specified in s 26 of the Constitution.

In particular, the reference concerns situations where allegations of misconduct in office have been made against members of the National Parliament, who have tendered their resignations, before the Tribunals have completed their investigations and determined the allegations.

The referrer's fundamental proposition was that, although a member of Parliament who was being prosecuted before a Tribunal had the constitutional liberty to resign his seat as a member, that resignation did not oust or deprive the Tribunal of jurisdiction to continue its responsibility to investigate and determine the allegations of misconduct made against that person.

Two previous decisions of the Supreme Court addressed some of the questions raised by this reference: Supreme Court Reference No 5 of 1980; Re Joseph Auna [1980] PNGLR 500 (hereafter Auna's case) and Supreme Court Reference No 2 of 1982; Re Opai Kunangel Amin, (1982) unpublished SC 231 (hereafter Kunangel's case).

The referrer invited the Court to re-examine the reasoning and the correctness of the decision in Auna's case. It was submitted that that decision is now inappropriate to the circumstances of the country where members of the National Parliament who were either referred for prosecution before a Tribunal, being prosecuted or after having been found guilty of misconduct in office, were resigning from office and avoiding accountability for their alleged or, in fact, proven misconduct in office.

It was in these circumstances that this reference was made, and the Court was very vigorously invited to review the decision in Auna's case as to the extent of the jurisdiction of the Tribunal.

The two principal questions referred in that case were essentially the same as raised in this reference. They were:

"Does the Tribunal have jurisdiction to hear and determine a reference where the holder of an office under s 26(1) of the Constitution is:

(1)      no longer occupying the office which was the subject of investigation into alleged misconduct,

(2)      no longer the holder of the office which he occupied at the time of alleged misconduct but is the holder of another office within the meaning of s 26(1) of the Constitution."

The Court held that a person to whom the Leadership Code applies pursuant to s 26(1) of the Constitution may only be dealt with by a Tribunal constituted under s 27(7)(e) of the Organic Law on Duties and Responsibilities of Leadership for misconduct in office whilst he is the holder of an office to which the Code applies. It need not be the office which was the subject of investigation into alleged misconduct. He cannot be so dealt with when he no longer occupies an office to which the Code applies.

SUPREME COURT'S POWER TO REVIEW AND OVER-RULE AN EARLIER SUPREME COURT DECISION

The issue was raised as to the propriety and the proper judicial methodology of reviewing and overruling a decision of this Court. The issue was posed as to whether the subsequent Court, being invited to review and possibly overrule the earlier decision, should not be constituted by a numerically larger Court.

Schedule 2.9(1) of the Constitution prescribes clearly that the Supreme Court is not bound by its own earlier decisions. It has been held as a matter of practice, to maintain consistency and judicial comity, that an earlier decision should only be overruled after much care and only in a clear case, and that "it is desirable that the Court be constituted by more than 3 judges and, if possible, the Chief Justice of the day should preside" - per Wilson J in Public Prosecutor v John Aia of Mondo [1978] PNGLR 224.

Whilst we apprehend that these guidelines are desirable as a matter of practice, they cannot qualify and inhibit the clear constitutional power and freedom that this Court is given not to be bound by its earlier decisions. The suggestion that "it is desirable that the court be constituted by more than 3 judges" is also a practice guidance where the decision being reviewed was by a 3-member Court. It does not mean that a 3-member Court could not, in a proper case, upon full submission and consideration, review and overrule an earlier decision of a 3-member Court. Nor, indeed, is it a rule of law that a properly constituted 5-member Court, such as this one is, presided over by the Chief Justice, could not properly review and overrule the decision in Auna's case, also a 5-member Court presided over by the Chief Justice. We do not believe that it is wrong in principle for the Supreme Court in a proper case, properly addressed and advised, to overrule its earlier decision decided by the same number of judges. This is clearly the intent of Sch 2.9(1).

We are, therefore, prepared to consider the referrer's vigorous submissions that several propositions in Auna's case ought to be reviewed.

THE PURPOSE OF THE LEADERSHIP CODE

Firstly, it was contended for the referrer that the proposition that the entire thrust and the primary purpose of the Code is the removal of unworthy leaders should be rejected. It was submitted that the primary purpose of the Code is not the removal or dismissal of unworthy leaders, but rather, as was stated by the Supreme Court in SCR No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR 460 at 464:

"to preserve the people of Papua New Guinea from misconduct by its leaders."

The Court in Auna's case stated at p 504:

"We are of the opinion that the Leadership Code is directed to persons actually holding an office as specified in s 26 of the Constitution; and that, as the Tribunal put it in this case, the entire thrust of the legislation is directed towards removing a person who is considered, after due inquiry, to be unworthy of continuing in office. All the provisions of the Constitution and the Organic Law are consistent with, and support, that conclusion. Once the primary purpose of the legislation is clear, it is not anomalous that a person, having ceased to hold any of the designated offices, becomes immune from proceedings under the Leadership Code in respect of any alleged misconduct in office, during the time he held office. The purpose is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged leadership office which he had formerly held; and, if found guilty, dismissed from his current office."

We accept the referrer's submission that because it has been over 11 years since the decision in that case and, because the circumstances giving rise to that decision have changed markedly, it is appropriate that this Court review the basis for that decision, in the light of the changing circumstances.

The main differing circumstance is that we do not think that it was ever in the Court's contemplation that a "leader", in particular a "member of Parliament" who was being prosecuted for alleged misconduct in office, would resign from office, in the course of the prosecution, or after having been found guilty but before determination was made as to penalty, to avoid the jurisdiction of the Tribunal.

In the light of the circumstances of recent years involving in particular members of Parliament, supported by the specific provisions of Constitution s 27, we accept the referrer's submission that the entire thrust and the primary purpose of the Code is "to preserve the people of Papua New Guinea from misconduct by its leaders".

We accept also that, more specifically, the purpose of the Code is to ensure as far as possible that the leaders specified in Constitution s 26 do not offend in the various ways prescribed by the provisions of Constitution s 27, and that these provisions are geared towards advancing the purpose of protecting the people from the improper and corrupt conduct of their leaders and to ensure, as far as possible, that such breaches are not committed in the first place.

This view is amply supported by the elaborate and comprehensive system of Annual Leadership Statements all leaders subject to the Code have to submit to the Ombudsman Commission, and the independent investigative and enforcement powers vested in the Ombudsman Commission.

This wider purpose of accountability is reinforced by a system of punitive sanctions that leaders found guilty of misconduct in office are subjected to, quite apart from dismissal from office.

Now, having stated this, we do not consider that the maximum sanction of dismissal from office of unworthy leaders who have been guilty of misconduct in office, with the attendant consequence of disqualification pursuant to Constitution s 31, is necessarily so inconsistent with that wider thrust that it should be rejected. Dismissal from office and the prescribed consequential disqualification is quite simply the severest form of sanction prescribed for the purpose of preserving the people of Papua New Guinea from "misconduct" by their leaders. It provides punishment as well as a deterrent purpose for the future. There are, of course, other penalties, such as reprimand, fines and suspension from duty, that can be imposed relative to the culpability of the misconduct, designed to achieve the same primary purpose of preserving the people.

We are, however, not persuaded that the Leadership Code is also directed to persons not actually holding current leadership office as specified in Constitution s 26. We, therefore, adhere to the first proposition enunciated by the Court in Auna's case and the reasons given therein.

THE SECOND LIMB OF THE AUNA DECISION

The Court concluded at p 504 that:

"The purpose (of the Leadership Code) is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and, if found guilty, dismissed from his current office."

And at p 505 the Court further stated:

"It is clear from the view we take that if any such leader assumed another leadership office, any proved misconduct in his earlier office could result in his being dismissed from his later leadership office."

We have extended the entire thrust and primary purpose of the Leadership Code to be the preservation of the people of Papua New Guinea from improper and corrupt conduct of their leaders. The ultimate maximum sanction of dismissal from office, with the consequential disqualification in the prescribed categories of public offices under s 31, is the natural extension of this entire thrust to protect the public by the removal from office of leaders found guilty and unworthy of continuing in public office to serve the people.

We are satisfied that this second proposition in Auna's case is entirely consistent with this amplified thrust and purpose of the Leadership Code.

We are satisfied that the proposition in the first limb of the decision, that a leader is subject to and can only be prosecuted under the Leadership Code whilst he currently holds an office to which the Code applies, is the correct first premise.

Section 27(1) and (2) of the Constitution uses the expression "a person to whom this Division applies." This lends consistency to the conclusion that the person is the holder of a current office, which is the thrust and focus of the detailed offensive provisions of s 27, which are geared towards protecting the public from improper and corrupt conduct by leaders currently in office. The corollary is that if a person is no longer in a leadership office, then the people do not need any protection from his improper conduct, though the other purpose, to penalise and thereby deter others, still remains to be dealt with.

The Organic Law uses the expression "person to whom this Law applies." The whole of Part II on Responsibilities of Leadership ss 4-16 is all geared towards preserving the interest of the people that leaders are to serve. They prescribe responsibilities of leaders then currently in office. They have no application to a person who is not holding a current leadership office. Section 27(1) of the Organic Law which states that:

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

(a)      to the Public Prosecutor; or

(b)      to the appropriate tribunal ..."

is also consistent with this proposition that a referral for prosecution can only be against a "person to whom this Law applies" because he holds a current leadership position to which the Leadership Code applies.

We are of the opinion that it is entirely consistent with the entire thrust and primary purpose of the Leadership Code regime to preserve the public from improper and corrupt conduct of leaders and to hold the leaders accountable through the comprehensive and elaborate mechanism for enforcement "that a person holding a (current) leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and if found guilty, dismissed from his current office".

The thrust of the legislation is to diligently investigate and prosecute any person holding current leadership office who is alleged to have committed offences of misconduct; and if, after due inquiry, that person is found guilty and unworthy of continuing in office, then he is liable to be dismissed from office. That is for the preservation of the people from abuse of office by leaders.

A purposive and expansive constructionist approach to all the Constitutional Laws and the Leadership Code, guided by the intention manifest in the Constitutional Planning Committee Report and the National Goals and Directive Principles, render consistency to this need for "accountability".

There are many factors and circumstances which might have prevented revelation, investigation and prosecution to conclusion of allegations of misconduct in office against a person in the currency of a leadership office. The following are some of the more obvious circumstances:

1.       The existence of the alleged misconduct might not have come to light until the person had ceased to hold office.

2.       The investigation necessarily takes time so that, whilst it is still progressing, the person ceased to hold office.

3.       In the course of investigation, the leader becomes aware of it and resigns his office.

4.       After he has been referred to the Public Prosecutor for prosecution before a Leadership Tribunal, he resigns.

5.       After the Public Prosecutor refers the allegations to a Leadership Tribunal, the leader resigns.

6.       After the Leadership Tribunal commences the inquiry into the allegations, the leader resigns.

7.       After the Tribunal has determined that the leader is guilty of misconduct, but before it determines the appropriate penalty to be recommended to the Head of State, he resigns.

8.       After determination of the appropriate penalty has been recommended to the Head of State, but before the instrument promulgating the penalty is signed by the Head of State, the leader resigns.

We have no doubt that it would be entirely against the clear intent and purposes of the Leadership Code regime and the spirit of the National Goals and Directive Principles to construe the provisions of the Code so as to enable a person who has avoided its provisions by one of these ways, and who immediately or later assumes the same or another leadership office, to remain in that office with immunity from the provisions of the Code for the misconduct in the former office. For instance, if the leader had, in fact, been found guilty of misconduct and recommended to be dismissed from office, but he resigned and avoided the penalty, but subsequently he assumed that office again by whatever process, can it possibly be consistent with the entire thrust of the Leadership Code regime that such a person, who had been found unworthy of continuing in office, be allowed to remain in the same office (or indeed any other leadership office) with immunity and seeming total impunity from accountability to the people he is to serve?

Such a proposition is absolutely without merit and overlooks the entire thrust and purposes of the Leadership Code. How can it possibly enhance the preservation of the people from corrupt, unfit leaders if they can be allowed to avoid the sanctions of the Code in one term of office and be immune from the same provisions in the same or another office in a subsequent term of office, immediately, shortly or anytime thereafter?

One of the main sanctions of the Leadership Code is to prevent continuance in office of unworthy people; and thus it is that a person holding a current leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held and, if found guilty, dismissed from his current office.

The Court in Auna's case, which included the Chief Justice and Andrew J, enunciated this proposition, in answer to the second question properly posed, after full arguments and consideration - see p 502. It was not obiter dicta. We see no reason to depart from this. What we have amplified merely reinforces the strength of this proposition. There is in our view no gap in the law that we need fill. The question does not arise.

Constitution Sch 1.5 enjoins the Court to read Constitutional Laws as a whole and to give to all provisions, words, expressions and propositions therein their "fair and liberal meaning". We agree with, and wish to adopt as entirely relevant to this exercise of interpreting the Papua New Guinea Constitution, principles expressed by Barnett J in SCR No 3 of 1986; Reference By Simbu Provincial Executive [1987] PNGLR 151 at 174. His Honour said:

"When interpreting the details of a provision in a constitutional law therefore it is an essential prerequisite for the judicial mind to be enlightened by the spirit of the Constitution itself. This enlightenment comes from developing a thorough understanding of the National Goals and Directive Principles, by taking an overview which will place the particular provision in the context of total legislative scheme of which it forms a part and by seeking to understand the intention of the founding fathers as they expressed it on behalf of the people, when enacting the Constitution and subsequent amendments.

As was pointed out by Kidu CJ and Pratt J, this of course does not mean the complete abandonment of the normal common law principles of statutory interpretation. Those principles still provide valuable assistance in resolving doubts and ambiguities when a court is engaged in its difficult task of determining the intention of the legislature: (In the Matter of Kuberi Epi v Tony Farapo (unreported) Supreme Court judgment No SC 247, 1983, at p 4). But it seems to me that the Constituent Assembly gave a clear direction to courts interpreting constitutional laws. That direction is to reverse the previous conservative approach to statutory interpretation which tends to commence the task by a detailed and literal study of the words used, turning to some "deemed" intention of the legislature only in case of verbal ambiguity or internal conflict. That direction is to enlighten the judicial mind first and then examine the actual words used from the viewpoint of that enlightened mind. It must be a mind striving to give effect to the National Goals and Directive Principles. If the words are quite clear in their literal meaning when seen from this enlightened viewpoint, and no other interpretation is fairly open, then they must be given that literal meaning. If, however, they can fairly be given an interpretation which is clearly more consistent with the spirit of the founding fathers, then they should be given that enlightened interpretation. In seeking to understand this intention courts are specifically empowered and encouraged to examine the Constitutional Planning Committee Report, the fourth draft of the Constitution and the record of the constitutional debates. (Constitution s 24.)"

Justice Bredmeyer had earlier, in SCR No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314 at 334-335, echoed the same principle when he said:

"We are not interpreting an ordinary statute but the supreme law of the land, a constitution which was drafted with great idealism as seen in the words used in the Preamble and the National Goals and Directive Principles. We must give all the parts of the Constitution a fair and liberal interpretation ...."

His Honour referred to a decision of the Privy Council that had adopted a principle of interpretation of the constitutions of ex-British colonies of the 1960s and 1970s which was similar to the Papua New Guinea fair and liberal principle. Lord Wilberforce, reading the opinion of the Privy Council in Minister of Home Affairs v Fisher [1979] UKPC 21; [1980] AC 319 at 328, said of the human rights provisions of the Bermuda Constitution that was being considered that it called for:

".... a generous interpretation avoiding what has been called 'the austerity of tabulated legalism'."

He elaborated what he meant by "a generous interpretation"; which was:

"to treat a constitutional instrument such as this as sui generis, calling for principles of interpretation of its own, suitable to its character as already described, without necessary acceptance of all the presumptions that are relevant to legislation of private law."

Section 25(3) of the Constitution is entirely relevant to "a generous interpretation, avoiding the austerity of tabulated legalism". Subsection 25(4) enables the Tribunal, for the purposes of the Leadership Code, to take the National Goals and Directive Principles fully into account in all cases as appropriate.

National Goal and Directive Principle No 3 calls for:

"(1)     our leaders to be committed to these National Goals and Directive Principles, to ensure that their freedom to make decisions is not restricted by obligations to or relationship with others, and to make all their decisions in the national interest."

What is the "national interest" sought to be protected and enforced on our leaders? Is it to be the liberty to misconduct oneself against all of the interests of the people sought to be preserved under the Leadership Code, and to be enabled by the "law" to avoid accountability for it, and to assume other leadership offices subsequently and remain immune from any accountability?

The plain unequivocal answer to this must be a categorical No. Any construction that would permit a person to avoid being accountable for his misconduct in a former leadership office, whilst holding the same or new leadership office in a new term, would surely not be in the national interest, in the totality of the Leadership Code regime and the National Goals and Directive Principles of the Constitution.

It is certainly not in the best national interest to suggest that a leader who is being investigated or being prosecuted or who has been found guilty of misconduct and recommended to be dismissed should be encouraged to resign and avoid being made accountable. It is even more outrageous to suggest that, having so avoided accountability and the sanctions of the Leadership Code in the leadership office he formerly held, such a person could assume another term in the same leadership office or, indeed, a completely different office with the same obligations towards the people he is to serve and still be immuned from accountability for his misconduct in the former office.

Such a proposition is quite without merit. It is certainty not what we apprehend the founding fathers to have meant by the national interest.

The common sense approach, as contemplated by the scheme of the Leadership Code and given substantive effect by the second proposition of Auna's case, is that, if a person in a current leadership office is found to have been guilty of misconduct in an earlier leadership office, he should be held accountable for that earlier misconduct. He is a leader as defined at all times, as long as he holds a leadership office, with all the attendant responsibilities and obligations for the preservation of the people and the national interest.

The practical mechanics of how this is to be effected is not a substantive issue which should affect or detract from the validity of this proposition. The intention of the legislation manifesting the national interest ought not to be frustrated or left without effect because of seeming procedural deficiency.

To implement the intention of the Code as construed, we see no impediment in principle to a tribunal that might be differently constituted on the basis of the current office to deal with a leader who occupied a different office in the former term, for which he was being subjected to the Leadership Code. The Tribunal must be constituted on the basis of the current office, but it can deal with the leader for alleged misconduct in a different former office.

Section 31 of the Constitution has no direct bearing or relevance to the 2 propositions we have expounded. It merely reinforces the seriousness of the misconduct by leaders, the highest sanction of which is dismissal from office and ineligibility to hold public leadership office in the 3 categories prescribed in subsections (1)(a)(b) or (c) for a period of 3 years after the date of his dismissal. It reinforces the main thrust, given effect to in the second proposition that leaders who misconduct themselves in office will be made accountable in serious terms, and that they cannot avoid that accountability with impunity.

Section 31 does not affect the validity of the second proposition; it simply stipulates that "a person who has been dismissed from office under this division (Leadership Code) for misconduct in office is not eligible to hold any office in the three categories of offices prescribed for a period of three years from the date of his dismissal".

The corollary to this is that a person who has been dismissed from office under the same Division can be appointed or elected to hold any other office apart from the one prescribed specifically in s 31(1)(a), (b) and (c).

The next main issue posed by this reference in the series of questions posed is essentially: at whatever stage of proceedings under the Leadership Code the Tribunal is deprived of continued jurisdiction, from the initial investigation to finding of guilt and recommendation for dismissal at the highest, what is to be the procedure adopted on the basis of the second proposition, when the person assumes another leadership office subject to the Leadership Code?

This practical procedural aspect was not canvassed in the second proposition in Auna's case, quite simply because it did not arise for consideration.

We consider that when a Tribunal has been constituted and is deprived of jurisdiction, at whatever stage of proceedings, by whatever circumstance, including resignation, upon the leader assuming another leadership office subject to the Leadership Code, the prosecution process could recommence by the Public Prosecutor requesting the Chief Justice to appoint the appropriate Tribunal to "investigate and determine" allegations of misconduct that remain against the leader.

We consider it not necessary to answer the other questions specifically.

KAPI DCJ: This is a special reference by the Public Prosecutor under s 19 of the Constitution. This reference has been prompted by a number of tribunals which have been appointed to deal with misconduct in office by several members of the National Parliament under the provisions of the Constitution as well as the Organic Law on the Duties and Responsibilities of Leadership. In several of these leadership tribunals, the members tendered their resignation at various points of the proceedings, which then rendered the proceedings to come to an end for lack of jurisdiction.

The Public Prosecutor has referred the following questions for the opinion of the Court:

1.       If the Tribunal appointed under s 27(7) of the Organic Law on the Duties and Responsibilities of Leadership to investigate and determine allegations of misconduct in office against a member of the Parliament makes a recommendation that the member be dismissed from office, and the member subsequently tenders his resignation to the Speaker of the National Parliament before the recommendation is acted upon by the appropriate authority under s 28(2) of the Constitution:

(a)      Can the member still be dismissed from office for the purposes of s 31(1) of the Constitution?

(b)      Can any of the alternative penalties provided for by s 28(1)(g)(i) of the Constitution, s 27(5)(b) of the Organic Law and s 2 of the Leadership Code (Alternative Penalties) Act be imposed on the member?

2.       Does a Tribunal appointed under s 27(7) of the Organic Law on the Duties and Responsibilities of Leadership to investigate and determine allegations of misconduct in office against a member of the Parliament have jurisdiction to conduct an enquiry and make recommendations under s 27(5) of the Organic Law, if the member has tendered his or her resignation to the Speaker:

(a)      After the member is notified by the Ombudsman Commission that he has a right to be heard under s 20(3) of the Organic Law and before the member receives the notification from the Ombudsman Commission under s 20(2) of the Organic Law?

(b)      After the member has received a notification from the Ombudsman Commission under s 20(2) of the Organic Law and before the matter is referred to the Public Prosecutor under s 29(1) of the Constitution and s 17(d), 20(4) and 27(1) of the Organic Law?

(c)      After the matter has been referred by the Ombudsman Commission to the Public Prosecutor and before the Public Prosecutor has requested appointment of a Tribunal under s 27(7) of the Organic Law?

(d)      After the Public prosecutor has requested the appointment of a Tribunal and before a Tribunal is appointed?

(e)      After the appointment of the Tribunal and before the matter has been referred to the Tribunal by the Public Prosecutor?

(f)      After the matter has been referred to the Tribunal by the Public Prosecutor and before the Tribunal has commenced its enquiry?

(g)      After the Tribunal has commenced its enquiry and before it announces its decision that the member has been found guilty of misconduct in office?

(h)      After the Tribunal has announced its decision that the member has been found guilty of misconduct in office and before it announces its decision on the recommendation as to penalty?

(i)       After the Tribunal announces its decision on the recommendation as to penalty and before it makes its recommendation to the appropriate authority under s 27(5) of the Organic Law?

3.       If the answer to any of the above questions is "No", and the member, subsequent to his resignation, stands for and is elected to elective public office or otherwise occupies a position to which s 26(1) of the Constitution applies, what procedure is applicable in the event that the Ombudsman Commission, the Public Prosecutor and/or a Tribunal appointed under s 27(7) of the Organic Law proposes to re-commence proceedings which relate to the same allegations of misconduct in office as those made against the member prior to his resignation?

In particular:

(a)      Does the member have to be given a fresh right to be heard by the Ombudsman Commission, pursuant to s 20(3) of the Organic Law?

(b)      Does the member have to be given fresh notification by the Ombudsman Commission under s 20(2) of the Organic Law?

(c)      Does the Public Prosecutor have to make a fresh request to the Chief Justice to appoint a Tribunal under s 27(7) of the Organic Law?

(d)      Does the Chief Justice have to appoint a new Tribunal to re-investigate and re-determine the allegations of misconduct in office against a leader?

(e)      What is the procedure if the member resigns from office again?

The issues raised by questions 1 and 2 come within the principles enunciated in Supreme Court Reference No 5 of 1980: Re Joseph Auna [1980] PNGLR 500 (hereafter Auna's case). It is clear from the submissions made by counsel for the Public Prosecutor and the Ombudsman Commission that this Court should reverse the decision in Auna's case. This is unfortunate because, if this was clearly pointed out at the hearing of the summons for direction or if it was earlier brought to the attention of the Chief Justice before the hearing, the Chief Justice might have constituted a 7-member court as Auna's case was decided by a 5-member bench. This Court has previously outlined the practice to be adopted where the Court is asked to reverse or overrule it's own decision. In Public Prosecutor v John Aia of Mondo [1978] PNGLR 224 at 232, Wilson J said:

"The decisions in Reg v Pia-Afu [1971-72] PNGLR 393 and Reg v Harley [1971-72] PNGLR 399 may now be wrong and perhaps the time has come for them to be no longer followed. However, I apprehend that there may be implications for the general administration of the criminal law in Papua New Guinea if this Supreme Court, constituted as it is by only three members, were to over-rule (them) at this time. I realise that the Supreme Court is not bound by earlier decisions of the Supreme Court (see Sch 2.9 of the Constitution). Nevertheless the legal doctrine of stare decisis and the principles of judicial comity are such that an earlier decision of Supreme Court should only be over-ruled after great caution and in a clear case. I am of the opinion that, if the Supreme Court is to be invited to over-rule an earlier decision of the Supreme Court, or even an earlier decision of the pre-Independence Supreme Court, it is desirable that the Court be constituted by more than three judges and, if possible, the Chief Justice of the day should preside. I am also of the opinion that the Supreme Court should not consider over-ruling one of its earlier decisions, assuming it considers the earlier decision to be wrong, unless it has heard full argument (and we have heard none in this case on this aspect) as to the desirability or otherwise of the Supreme Court at this stage in this country's development and in circumstances such as arose in this case changing the law by judicial as opposed to legislative decision. The Supreme Court should also have an opportunity to consider the principles which should guide the Supreme Court in the reconsideration of its own decision."

Other considerations which are relevant are set out in the case of Supreme Court Reference No 2 of 1982; Re Opai Kunangel Amin (1982) unpublished SC231 (hereafter Kunangel's case); see Kapi DCJ at pp 10-11 and Gajewicz J at pp 46-47. This practice should be followed in future cases. In this case, parties have presented full arguments with regard to Auna's case and I will now consider the merits of these arguments.

It is important to clarify and determine the precise reasons for the decision in Auna's case. It is not necessary to set out the questions that were referred in Auna's case. They appear to be in the same form as the questions before us in this reference.

Mr Auna occupied the position of Executive Director of NIDA from 2 December 1976 to 24 July 1980, when his term expired. On 25 July 1980, he was appointed Ambassador to the Kingdom of Belgium and EEC/ACP. On 21 August 1980, the Ombudsman Commission referred the matter of his misconduct in the office of Executive Director of NIDA to the Public Prosecutor. On 27 August 1980, the National Executive Council revoked the appointment as Ambassador.

The Supreme Court in Auna's case at p 505 found it unnecessary to consider the definition of "Ambassador Designate". Whether or not Mr Auna could be charged with misconduct in office as an Ambassador was not a question open to the Tribunal. I point this out at this stage because this is significant when considering what has been regarded as the second proposition in Auna's case. I will come back to this later in my judgment.

Auna's case essentially raised the question of the jurisdiction of a Tribunal when a leader no longer occupies the office by virtue of the expiration of a term of office. It has been submitted that Auna's case stands for the following two propositions.

1.       For a Leadership Tribunal to be seized of jurisdiction to hear and determine the reference, the person concerned has to be the holder of an office which is subject to s 26(1) of the Constitution, and if the person no longer occupies the office by virtue of the term of office coming to an end, the Tribunal has no jurisdiction.

2.       If the same leader assumes another leadership office in the future, any proved misconduct in the earlier office could result in his being dismissed from his later leadership office.

I now deal with the first proposition in Auna's case. Counsel for the Public Prosecutor in his detailed submissions criticised Auna's case on several grounds. These submissions can be summarised in the following manner. First, he attacked the 5 reasons upon which the Supreme Court based its decision in Auna's case (supra). Secondly, he submitted that this Court should give a liberal interpretation of the Constitutional Laws, having in mind the purpose of these laws and the National Goals and Directive Principles, to reach the conclusion that the jurisdiction of a Tribunal should continue to its logical conclusion even though a leader is not in office by virtue of the expiration of the office.

The nature of the issues before us are essentially those of construction of the relevant Constitutional Laws. The role of the Court is to discover the intention of the legislature in these provisions. The enquiry is what is the law as expressed in the provisions and not what the law should be. As will be apparent in my reasoning, the conclusion reached on the first proposition in Auna's case is a matter of construction of the relevant Constitutional Laws.

Are there any provisions in the Constitution or in the Organic Law which may lend support to the view put forward by counsel for the Public Prosecutor? Some provisions may be put forward as supporting these arguments. First, s 27(2) of the Constitution reads as follows:

"(2)     In particular, a person to whom this Division (i.e, the leadership) applies shall not use his office for personal gain or enter into any transaction or engage in any enterprise or activity that might be expected to give rise to doubt in the public mind as to whether he is carrying out or has carried out the duty imposed by Subsection (1)". (emphasis added)

The words "has carried out" may indicate that a person has left the office by virtue of expiration of the term of office but still can be charged with any duties he may have carried out whilst he was in office. If this provision is read in isolation, it is possible to come to the interpretation that counsel for the Public Prosecutor contends. However, when all of the provisions in the Constitution as well as the Organic Law are read together, the conclusion is inevitable that what is meant in s 27(2) of the Constitution relate to acts which are continuing in office and acts which have been completed by a leader who is still in office. The conclusion reached by the Supreme Court in Auna's case makes sense when one reads the penalty provisions together with this section. Counsel for the Public Prosecutor cannot gain any assistance from this provision.

Section 31 of the Constitution sets out the consequences of a leader who is dismissed from office. It has been submitted that this provision indicates that the Constitution is intended to deal with leaders who have left office. The difficulty with this argument is that a leader who has left the office by virtue of the expiration of the term cannot be dismissed from office. Section 31 can have no application to such a leader. This provision can lend very little support to the argument by counsel for the Public Prosecutor.

Section 35 of the Organic Law is as follows:

"A person to whom this law applies (i.e all persons holding the office specified in s 26(1) of the Constitution) who, without the approval of the Ombudsman Commission, within three years after ceasing to be such a person accepts or holds a directorship, consultancy or any other prescribed position with a foreign enterprise, is guilty of an offence.

Penalty: K1 000.00 or imprisonment for 12 months".

This provision cannot take the argument further. Section 35 prescribes a criminal offence. If this provision made this a disciplinary offence, it could be inferred that misconduct in office relates not only to those who occupy leadership offices but would include those who have left the office. There is a clear distinction between a disciplinary offence and a criminal offence. In my view, the analysis which the counsel for the Public Prosecutor has asked us to adopt is the one applicable to criminal offences. In a disciplinary proceeding, the main thrust of the law is intended to discipline leaders to perform up to standard and to improve their performances in office. All the punishments which fall short of dismissal are directed at disciplining the leader in this sense. If his misconduct is so serious that he should not continue to occupy the office, then the law provides for such a leader to be dismissed from office. All of these punishments make sense if the leader is in office. It is intended to discipline. The ultimate penalty is dismissal from office. When a leader resigns from office, he voluntarily brings upon himself the ultimate penalty. From the point of view of discipline and in the interest of the people, all leaders who are guilty of misconduct in office should be encouraged to resign from office. The only concern with this is that such leaders cannot be disqualified from occupying any other office under s 31 of the Constitution. This is something that the Parliament did not address in the Constitution and the Organic Law. I deal with this issue later in the judgment.

I fail to find any provision in the Constitution and the Organic Law from which it could be inferred that a Tribunal should continue after the leader has left the office. In my view, the conclusion in Auna's case is the inevitable conclusion one reaches as a matter of construction of the legislation involved. The contention by counsel for the Public Prosecutor simply is not open on the construction of these laws.

Gajewicz J in Kunangel's case supplied a further ground for supporting the decision in Auna's case. At p 47 he said:

"In my opinion there is one additional ground why the first question should be answered in the negative. If, contrary to my view, there were in the present case some uncertainty as to the interpretation of the Constitution, then, because of fairness to the person concerned, the uncertainty should be resolved in his favour. The proceedings before the Ombudsman Commission and the Tribunal are not criminal proceedings, but they entail penalty and any doubt arising from interpretation of legal provisions should be given to the person who may suffer the penalty."

The principle in Auna's case was first questioned in Kunangel's case. The only difference in Kunangel's case is that the term of office of Mr Kunangel was still current but he vacated the office by resigning from the National Parliament. The first proposition in Auna's case was adopted in Kunangel's case. I adhere to the views I expressed on pages 350-351. I am not convinced that Auna's case is wrong.

Any leader who resigns from a leadership position or whose term of office expires cannot be said to be dismissed from office for purposes of s 31 of the Constitution. This is the anomaly created by Auna's case. Counsel for the Public Prosecutor urges this Court to find that a Tribunal should continue to deal with a leader who is no longer in office so that a recommendation for dismissal may be signed by the Governor-General and that such a leader would be deemed to have been removed from office for the purposes of s 31 of the Constitution. As has been pointed out before, when a leader is not in office, either by expiration of the term of office or by resignation as member of Parliament, the instrument of dismissal could not ex post facto dismiss him before the date of expiration of term of office or before resignation from office. To reach a conclusion with such a deeming effect for purposes of s 31 would be to amend that provision and that, of course, is legislating. That would be interfering with the legislative function of the National Parliament. Andrew J (also a member of the Court in Auna's case) recognized the anomaly in Kunangel's case at p 11 and reached the conclusion that it is a matter which comes within the function of the National Parliament. He said,

"I would add only the following on my own behalf, even though it is obvious, that the fact that the leader in this matter has effectively avoided the charges of breaches of the Organic Law on the Duties and Responsibilities of Leadership by the tender of his resignation, is a highly unsatisfactory situation. Clearly the Organic Law requires urgent amendment to ensure that its aims and intentions are given full effect and so that any Tribunal appointed be able to reach its conclusions in these matters of national importance without being thwarted by the resignation of the leader."

Gajewicz J in Kunangel's case at p 46 expressed the same sentiments. He said:-

"In Auna's case the Supreme Court decided that the Tribunal does not have jurisdiction to hear and determine a reference when the holder of an office under s 26(1) of the Constitution is no longer occupying the office. The Court also decided that the Tribunal has jurisdiction to hear and determine the reference if the holder of the office ceased to hold that office but holds another office at the date of the judgment by the Tribunal. It follows that a leader may resign his office sometime towards the end of the proceedings before the Tribunal in anticipation of an unfavourable judgment. When he resigns one day before the judgment the Tribunal ceases to have jurisdiction and is unable to pronounce its decision. Some may think that this is a most undesirable situation. All investigations done by the Ombudsman Commission and Tribunal becomes useless. Some may think that it is a farcical situation, it makes mockery of the whole Leadership Code. But this is the plain effect of the decision in Auna's case. No action was taken to amend the Constitution after that case."

This is the third occasion on which this Court has pointed out the gap in the law. The onus is on the legislature to address this issue.

I now consider what has been regarded as the second proposition in Auna's case. The first question I need to consider is whether this issue arose for decision in Auna's case? There are two passages which addressed this issue. The first is on p 504:

"The purpose is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of alleged misconduct in leadership office which he had formerly held; and, if found guilty, dismissed from his current office."

At p 505 the Court said:

"It is clear from the view we take that if any such leader assumed another leadership office, any proved misconduct in his earlier office could result in his being dismissed from his later leadership office."

Joseph Auna was charged with misconduct in relation to the office of Executive Director of NIDA and not misconduct in his office as "Ambassador Designate". He had not occupied the latter position because, as the Court pointed out, the appointment as Ambassador was revoked by the National Executive Council on 27 August 1980. It followed, therefore, that this was a constitutional issue which did not arise before the Tribunal. It could not have been referred under s 18 of the Constitution. See Supreme Court Reference No 2 of 1981 [1982] PNGLR 150, Supreme Court Reference No 3 of 1982 [1982] PNGLR, 405, Supreme Court Reference No 5 of 1982; Re Petition of Hugo Herghuser [1982] PNGLR 379 and Supreme Court Reference No 5 of 1985; Re Raz v Matane [1985] PNGLR 329.

Further, these two passages do not state a conclusive finding of the Court. The passages simply suggest that such leaders could be charged and dismissed from a later office for misconduct in a previous leadership office. At no stage did the Court develop this argument. The Court made no reference to any submissions on the point nor did it make reference to any authority or any analogous situation for coming to this conclusion.

I have reached the conclusion that this issue could not have been decided by Auna's case and, at the most, it can be regarded as obitum dictum.

I consider that this issue has been raised for the first time before us in this Court. This issue can be dealt with here because this is a s 19 reference and any number of hypothetical issues may be raised and dealt with.

Counsel for the Public Prosecutor simply submitted that the second proposition in Auna's case cannot be supported because there are no provisions either in the Constitution or the Organic Law from which this proposition may be inferred. Counsel for the Attorney-General simply supports the proposition and does not develop any argument at all in support of it.

It follows from the first proposition in Auna's case that when a leader no longer occupies the office, the Tribunal ceases to exist. There is no further obligation on the part of the Tribunal to proceed any further, and the leader has no further obligation to attend the Tribunal. As a matter of law, that is the end of the matter. He cannot be dismissed from that office and s 31 of the Constitution can have no application to such a leader.

The question raised here is, when a leader who has resigned from office and, therefore, a Tribunal which has been set up to deal with him ceases to exist and he subsequently assumes another leadership position, can he be charged with the same misconduct in office in the previous leadership position?

Whether misconduct in a previous office can ever become the subject of leadership proceedings in the future is an issue addressed by the second proposition in Auna's case. The passages referred to in Auna's case may have two possible meanings. The first is that where a leader resigns from an office or completes a term of office and when he occupies another leadership office, he may be charged for misconduct in the previous office, found guilty and dismissed from that previous office. Such a dismissal would result in automatic dismissal from current office under s 31 of the Constitution.

It may be said that this proposition can be supported by applying the general principles applicable to criminal offences, namely that once a person commits a crime, such a person is liable to be dealt with and there is no time limitation. If he leaves the jurisdiction, he may not be proceeded with, but when he returns to the jurisdiction, he will be charged again with the same offence. It may be said that this is analogous to a leader resigning and, upon resuming in another office, the previous misconduct is revived.

I would raise the following arguments against this analysis. The criminal offence analysis has been specifically rejected for the purposes of the first proposition. We cannot accept the criminal offence analysis for the second proposition. That would be inconsistent. Either we accept this analysis for both propositions or reject the analysis for both. My view is that the criminal offence analysis is not applicable to both propositions.

Whether the criminal offence analysis should apply to misconduct in office depends on whether this is the intention of the Parliament. We are simply construing the provisions of the Constitution and the Organic Law and not formulating a new principle of law. If the Parliament intended this to be the case, it would have said so clearly in the Constitution or the Organic Law. In fact, there are general provisions which indicate the opposite intention. Section 28(5) of the Constitution indicates that Tribunal proceedings are not judicial proceedings like judicial proceedings in a criminal case. Section 27(4) of the Organic Law specifically states that a Tribunal shall make enquiry without legal formalities or the rules of evidence as opposed to legal formalities and rules of evidence in a criminal case. It may inform itself in such manner as it thinks proper, subject to the principles of natural justice. Certain protections given to a criminal offender under s 37 of the Constitution are not applicable to disciplinary offences. See Public Employees Association of Papua New Guinea v Public Services Commission (unreported judgment of the Supreme Court, SC253).

The very nature of Tribunal proceedings, as set out in the Constitution and the Organic Law, is so different to those applicable to criminal offences. It can be inferred from this that the Parliament did not intend that the criminal offence analysis should apply to misconduct in office.

Further, this meaning cannot be supported by s 31 of the Constitution. A Tribunal has no jurisdiction to deal with a leader if he no longer occupies that office, and a leader cannot be dismissed from an office if he no longer occupies that office. That is the effect of the first proposition in Auna's case. Section 31 can have no application in these circumstances.

The alternative meaning is that a misconduct in a previous office is a misconduct offence for the purposes of the current office. The leader may be charged in his current office on account of misconduct in a previous office. The proceedings would be against the current office and, if found guilty, the leader could be dismissed from the current office. This meaning cannot be supported by s 31 of the Constitution. There is no provision in the Constitution or Organic Law which can lend support to this meaning.

Several arguments have been put forward to support the alternative meaning in the second proposition in Auna's case. First, it has been argued that the second proposition in Auna's case is consistent with what has been described as the amplified thrust and purpose of the Leadership Code (Part III, Division 2 of the Constitution). In particular, reliance has been placed upon passages in Supreme Court Reference No 1 of 1978; Re Leo Robert Morgan [1978] PNGLR 460 at 464 (hereafter Morgan's case) "to preserve the people of Papua New Guinea from misconduct by it's leaders," and Auna's case at p 504:

"We are of the opinion that the Leadership Code is directed to persons actually holding an office as specified in s 26 of the Constitution; and that, as the Tribunal put it in this case, 'the entire thrust of the legislation is directed towards removing a person who is considered, after due inquiry, to be unworthy of continuing in office'. All the provisions of the Constitution and the Organic Law are consistent with, and support, that conclusion.... The purpose is to prevent continuance in office of unworthy people; and thus it is, that a person holding a leadership office may be proceeded against in respect of a leadership office which he had formerly held; and, if found guilty, dismissed from his current office."

I agree with the statement in Morgan's case. In fact I stated the same principle in a different way in Chan v Investigating Authority [1988] PNGLR 43 at 45. But this does not provide any basis for the Courts to develop their own views without any regard to the provisions of the Constitution and the Organic Law. The precise nature of the purpose of the Leadership Code and how this is achieved is not a matter for the courts to formulate and develop. The courts must find this in the Constitution or the Organic Law and not by resorting to the personal opinions of the judges. The reason is simple; the discipline of leadership is a subject matter which has been reserved for the National Parliament. See s 28 of the Constitution. With respect, the passage referred to above in Auna's case illustrates the error of the Court in stating the purpose of the Leadership Code in a manner which is not consistent with the Constitution and the Organic Law. First, it is wrong to state that the entire thrust of the legislation is directed towards removing a person who is considered, after due inquiry, to be unworthy of continuing in office. This statement is not consistent with the provisions of the Organic Law. There are punishments other than dismissal from office. I criticised this in Kunangel's case at p 10.

Secondly, the statement in Auna's case that the purpose of the Leadership Code is to prevent continuance in office of unworthy people, that is people who have been dismissed from office, is not entirely consistent with s 31 of the Constitution. This statement is accurate in so far as it applies to offices enumerated therein and applies only during the period of 3 years from the date of dismissal. The framers of the Constitution clearly had in mind that a leader who is dismissed from office is eligible to occupy any of the leadership offices enumerated under s 31 of the Constitution after 3 years.

Further, by implication, disqualification under s 31 of the Constitution does not extend to offices of:

(1)      A Judge

(2)      The Public Prosecutor or Public Solicitor

(3)      Chief Magistrate

(4)      A member of Ombudsman Commission

(5)      A member of Electoral Commission

(6)      The Clerk of Parliament

(7)      A member of the Public Services Commission

(8)      The Auditor General

(9)      Heads of Departments

(10)    The Commissioner of Police

(11)    The Commander of the Defence Force

(12)    Ambassadors

(13)    The Public Trustee

(14)    The personal staff of Governor-General

(15)    Executive officers of registered political parties.

By law, a leader who is dismissed from office is eligible to occupy any of these offices. There is no basis for the sweeping statements on the so-called amplified thrust and purpose of the Leadership Code.

In so far as disqualification under s 31 of the Constitution applies to the offices enumerated therein, this section does not provide any basis for laying any charges against occupants of these offices for any previous misconduct in office. Disqualification for 3 years is an automatic penalty which flows on by virtue of dismissal from office.

In addition, the words "a person to whom this Division applies" have been relied upon and have been interpreted to include the meaning that misconduct in office in a previous office may be a ground for charging a leader for misconduct in a later and current office. These words appear in s 26(3), s 27(2), s 27(3), s 27(5) and s 28(4) of the Constitution. I have examined all these provisions and these words simply mean a person who occupies an office to which the Leadership Code (Part III, Div 2) applies. In essence, it refers to occupants of all the offices enumerated under s 26(1) of the Constitution. These words have been used numerous times in the Organic Law. See ss 4(1), 4(4), 4(6), 5(1), 5(2), 6(1), 6(2), 8(1), 8(2), 8(4), 9(1), 10(1), 11, 12, 13, 14(1), 15(5), 23, 24(1), 24(2), 25(1), 26(1), 26(2), 27(1), 27(5) and 35. The Organic Law has defined the words to mean "the person specified in s 26" (application of Div 2) of the Constitution. These words do not indicate the nature of a misconduct in office offence. One has to refer to the provisions in Part III Division 2 of the Constitution to determine the issue before us.

Applying the most liberal interpretation to these words, one cannot come to the construction that these words prescribe that a leader may be charged in his current office for misconduct in a previous office. I fail to find any words which are capable of this conclusion. Support for this conclusion will have to come from other provisions in Division 2. With the greatest respect to those who support the second proposition in Auna's case, the words relied upon do not support the construction contended for. In essence, the second proposition is a formulation of a new principle by the Court. This is not a conclusion reached by construction of the relevant constitutional laws but, rather, it is judicial legislation in the guise of judicial interpretation.

Section 27 of the Constitution defines what constitutes misconduct in office. It falls short of dealing with the issue at hand. The framers of the Constitution did not intend to deal with all the issues in Division 2. This is clear from s 28 of the Constitution. In particular, s 28(1)(d) states that an Organic Law may prescribe specific acts that constitute misconduct in office. The Organic Law prescribes acts which are misconduct in a current office. Examination of all the misconduct offences set out in the Constitution and the Organic Law reveal that the offences relate to misconduct in a current office. They do not deal with misconduct in one office as a ground for dealing with another office in the future. Again, the provisions fall short of dealing with the issue at hand. For instance, the Organic Law does not deal with rights of a leader if he has to go through the process again. There is no provision relating to the use of evidence in the previous proceedings. There is also lack of provisions in relation to other substantive matters of law raised in Question 3.

All of the matters which I have set out above simply point to the inevitable conclusion that the Parliament has not addressed this issue. There simply is a gap in the law. This is not surprising. The Court has already held that the Parliament did not deal with what happens to a hearing when a term of office expires or when a leader resigns from office. The Parliament failed to address this and failed to address the position of such a leader who subsequently occupies another office. The second proposition is more complex and much more remote.

When the Leadership Code was introduced through the provisions of the Constitution and the Organic Law, the constitutional framers had very little experience of discipline of leaders. The experience in the past 17 years has revealed that there are loopholes, weaknesses and even inconsistencies.

(a)      The State v Independent Tribunal; Ex-parte Sasakila [1976] PNGLR 491. The original s 27(5) of the Organic Law was contrary to s 28(2) of the Constitution. The relevant provisions were amended.

(b)      Auna's case. Anomaly created by expiration of term of office.

(c)      Kunangel's case. Anomaly created by resignation from office. At page 3, I pointed out the lack of clear provisions relating to the question of when a reference to a Tribunal under s 27 of the Organic Law is constituted. At page 12, Bredmeyer J pointed out that under s 28(4) of the Constitution, an Organic Law could have provided for suspension from office. Instead s 28(1) of the Organic Law provided for suspension from duty.

(d)      There is a lack of provision relating to matters of law raised in Question 3 in this reference.

These gaps and weaknesses in the present Constitutional Laws are related to the issue raised by the second proposition in Auna's case. These are matters which come within the legislative power of the National Parliament. There is an urgent need for the National Parliament to overhaul the Constitutional Laws relating to the Leadership Code.

Further, s 25(3) of the Constitution has been relied upon to support the conclusion that a leader may be charged in a later office for misconduct in a previous office. It is argued that this proposition gives "effect to the National Goals and Directive Principles".

There are 5 National Goals and Directive Principles set out in the preamble to the Constitution. I have examined these goals and directive principles and find that they do not deal with leadership, conduct of leadership or discipline of leadership. They bear no direct relevance to the issue raised by the second proposition in Auna's case.

The National Goals and Directive Principles may be given effect to under s 25(3) of the Constitution if done "without failing to give effect to the intention of the Parliament or to the Constitution". If the intention of the Parliament, as expressed in any law or the provisions of the Constitution, is found to be contrary to the National Goals and Directive Principles, these principles cannot be given effect to. Let me illustrate; National Goal and Directive Principle No 5 States.

"5.      Papua New Guinean ways

We declare our fifth goal to be to achieve development primarily through the use of Papua New Guinean forms of social, political and economic organization. We accordingly call for:

(1)      ...

(2)      ...

(3)      recognition that the cultural, commercial and ethnic diversity of our people is a positive strength, and for the fostering of a respect for, and application of, traditional ways of life and culture, including language, in all their richness and variety, as well as for a willingness to apply these ways dynamically and creatively for the tasks of development; and

(4)      ...."

Section 4(e) of Customs Recognition Act (Ch 19) states that in criminal cases custom may be taken into account in determining the penalty to be imposed. The directive principle set out above would be given effect to in the application of this law. See Acting Public Solicitor v Uname Aumane (supra). However, Sch 2:1(2) of the Constitution states that custom should not be applied if it is "repugnant to the general principles of humanity". The Supreme Court has held that custom of payback killing is contrary to the principles of humanity; therefore, effect should not be given to this custom in sentence. The Court also found that payback is contrary to s 35 of the Constitution. See Public Prosecutor v Apava Keru [1985] PNGLR 78. The Court illustrated in this case that the directive principle stated above could not be given effect to.

In the case before us, the issue relates to whether this Court can formulate the rule of law set out in the second proposition in Auna's case. I have already stated earlier that there is no national goal or directive principle relevant to the issue. Even if there were, s 28(1)(d) of the Constitution clearly states that an Organic Law may prescribe what constitutes misconduct in office. That is clearly a power reserved for the Parliament and not for the courts.

To formulate the second proposition in Auna's case, in my view, is to interfere with the legislative function of the National Parliament. The Tribunal is a statutory body and its powers are given by statute. Such a Tribunal cannot do anything that is not authorised by the Constitution or the Organic Law. The State v Senior Stipendary Magistrate [1976] PNGLR 344 at 349.

There are cases in which the Courts have refrained from interfering in areas of the law which have been made the subject of statutory provisions.

In The State v Misimb Kais [1978] PNGLR 241, Andrew J was faced with a gap in the Criminal Code, namely, that the offence of incest does not extend to adopted daughters: He considered Sch 2.3 of the Constitution and concluded at p 252:

"Where many people live in a communal society the circumstances are very different to those in the jurisdictions which I have discussed. Children are frequently raised by relatives who are not their true parents. In my view s 226 of the Criminal Code cannot be read so as to include the offence of incest between the adoptive parent and child. To extend the section to include this act would, in my opinion, having regard to the nature of a communal society, amount to this Court passing its own legislation and go beyond the scope envisaged by Sch 2.3 of the Constitution. In my view, if it is felt that the section should be so widened this is properly a matter for legislative decision."

See also Sangumu Wauta v The State [1978] PNGLR 326.

In Acting Public Solicitor v Uname Aumane [1980] PNGLR 510, the trial judge imposed a customary penalty outside permissible punishments set out under s 19 of the Code. If customary punishments are desired, this should be brought in by way of legislative amendment to the Code.

In Supreme Court Reference No 2 of 1981 [1982] PNGLR 150, Andrew J was concerned with a person charged with forging and uttering. The learned trial Judge found that the charge was proved but did not consider that the case warranted the recording of a conviction. He, therefore, proceeded and discharged the accused without recording a conviction. A question was referred to the Supreme Court whether the trial judge had any power to discharge such a person when there was no such provision in the Code. Kearney DCJ at p 159 said:

"In this case the trial judge has effected the disposition of the case in a way not permitted by law. I consider that he has, with respect, strayed beyond the field of judicial competence into a field reserved to the Parliament. The principle of separation of powers permeates the Constitution. I adhere to what I said in SCR No 1A of 1981 [1982] PNGLR 122, the Traffic Infringements Summons case. In that case the legislation in question was invalid because it usurped a function essentially judicial in nature; in this case the action of the court was invalid, in that it usurped the legislative function of the Parliament. The Constitution, s 155(4), must be read in the light of the separation of powers; and cannot authorize the making of an order other than one within the judicial power. I respectfully agree with Greville Smith J that "justice" means "justice according to law".

The point at issue in this reference was really answered by Kapi J in Acting Public Solicitor v Uname Aumane [1980] PNGLR 510 at p 530, with whom I agreed. I respectfully agree with His Honour's expressed views at p 173 herein on the need for the permissible range of penalties for offences to be defined and prescribed by written law, under the Constitution s 37(2). It follows that any penalty imposed must be within that range."

I have already referred to passages in Kunangel's case by Andrew J at p 11 and Gajewicz J at p 46 of the judgment which deal with the same principle.

In Auna's case the Supreme Court applied the same principle by refraining from legislating the gap created by the first proposition in Auna's case.

The courts in other countries have applied the same principles. I refer to them for completeness.

In Municipality of St Leonards v Williams [1966] TASStRp 17; [1966] Tas SR 166 at 169, Burbury J said:

"It is emphatically not the province of the courts to write into an Act of Parliament something which is not there because it may be thought that it would be convenient if it were there."

In Daymond v South West Water Authority [1976] AC 609 at 645 Viscount Dilhorne in the House of Lords said:

"If there is such a defect, it is not for us sitting judicially to remedy it by legislating to put into [the section] words which Parliament could, if it had wished, have inserted."

In Johnson v Moreton [1980] AC 37 at 50, Lord Salmon held that:

"The courts have no power to fill in a gap in a statute, even if satisfied that it had been overlooked by the legislature and that, if the legislature had been aware of the gap, the legislature would have filled it in."

In R v Hucklebridge [1980] 1 WLR 1284 at 1289, Lord Lane CJ giving the judgment of the Court said: "If it is required to close up a possible loophole, that is for Parliament to do and not this court."

These cases support the proposition that, where there is a gap in legislation, it is not a matter for the courts but for Parliament to fill in the gap. Our Constitution clearly and expressly states that legislative power and judicial power should be kept separate from each other. Section 99(3) of the Constitution.

In the present reference, what constitutes misconduct in office is clearly and expressly stated by the Constitution to be prescribed by an Organic Law. This is an area of the law clearly reserved for legislation. The Legislature has already acted on this through the provisions of the Organic Law. This would be analogous to s 37(2) of the Constitution, which requires that a criminal offence may be prescribed by a written law. This rules out any common law offence which may be prescribed by the Court as part of the underlying law. See Prentice CJ in Sangumu Wauta v The State [1978] PNGLR 326 at 333. See also Aoko v Fagbemi [1961] All NLR 400. In my view, therefore, this is not a subject matter which this Court can undertake to develop as part of the underlying law. If there is any shortcoming or inadequacy in the law, it is a matter for the legislature.

If, contrary to my view, the court could as a matter of law deal with this question of misconduct in office as part of the underlying law, the law-making power of the court is not without restraint. Sch 2.4 of the Constitution is in the following terms:

"In all cases, it is the duty of the National Judicial System, and especially of the Supreme Court and the National Court, to ensure that, with due regard to the need for consistency, the underlying law develops as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except insofar as it would not be proper to do so by judicial act." (emphasis added)

In Supreme Court Reference No 2 of 1981 (supra) Greville Smith J addressed this issue. At p 164, he said:

"Schedule 2.3 provides that if in a particular matter before a court there appears to be no rule of law that is applicable and appropriate to the circumstances of the country it is the duty of the National Judicial System to formulate an appropriate rule as part of the underlying law, and Sch. 2.4 provides that it is the duty of the National Judicial System to ensure that the underlying law develops 'as a coherent system in a manner that is appropriate to the circumstances of the country from time to time, except in so far as it would not be proper to do so by judicial act'."

It follows from the foregoing and from what the Constitution, s 9, declares to be exclusively "the laws of Papua New Guinea", the courts are expressly, in the provisions I have mentioned, given power to provide only a part, and that is by formulation and development of what may be described as the non-legislative law, namely the "underlying law". That the function of the courts should be confined even in this field is, I think, to be inferred from the following, namely:

1.       The report under the provisions of s 187 of the Constitution to the Head of State for presentation to Parliament shall comment upon the state, suitability and development of the underlying law;

2.       The provision contained in Sch 2.14 that it is the special responsibility of the Law Reform Commission to investigate and report to the Parliament and to the National Executive on the development and on the adaption and appropriateness of the rules and principles of the underlying law to the circumstances of the country from time to time; and

3.       The fact that the duty placed upon the National Judicial System (by the provisions of Sch 2.4) is to ensure the development of the underlying law in the way specified. This is circumscribed by the words "except insofar as it would not be proper to do so by judicial act".

As to the provision last mentioned, it is not proper by judicial act to invade the province of the legislature. In R v Coney [1882] UKLawRpKQB 30; (1882) 8 QBD 534 at 550, Stephen J said as follows:

"A considerable part of the law of England consists of judicial decisions, and in the very nature of things this must be so. Every decision upon a debated point adds a little to the law by making that point certain for the future. Indeed, whichever way this case may be decided, it will settle the law upon the precise point involved, and it is this which gives to judicial decisions their great importance.

It seems to me, however, that in exercising the narrowly qualified power of quasi legislation which the very nature of our position confers upon us, we ought to confine ourselves as far as possible (there may be cases where such a course is not possible) to applying well-known principles and analogies to new combinations of facts, and to supplying to general definitions, and maxims, or to general statutory expressions qualifications, which though not expressed, are, in our opinion, implied ... if we go further and extend the law upon considerations of general expediency, we are, I think, invading the province of the legislature."

In my view, it was the intention of the legislature to impose analogous restrictions upon the National Judicial System in the discharge of its duty to develop the underlying law.

It seems to me, in the light of the foregoing, that the People set out in the Constitution to supply, for the time being, a system of laws as complete as possible for the needs of the new nation, to make provision, within the area of the underlying laws, and in the limited way specified, for the "ad hoc" remedying by the courts in matters which come before them of any deficiencies or incongruities, and to maintain the power of legislation as the chief and overriding source of law.

Whether misconduct in a previous office may constitute an act of misconduct for purposes of a later leadership office is a policy issue which has sparked off a public and parliamentary controversy. For example, there was a move by certain members of the Parliament to completely abolish the office of the Ombudsman Commission and the Leadership Code. I understand that these proposals have not been pursued in the Parliament. This simply illustrates the policy and political considerations surrounding such a subject matter. 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. See State v Wik Kor [1983] PNGLR 24.

I also find that the second proposition in Auna's case is not workable and not practicable. Counsel for the Public Prosecutor on p 36 of his submissions put the issue in this way: "The problems caused by the Supreme Court interpretation cannot be cured by a process of prosecuting a leader when he assumes another leadership office. This may be a number of years later, and in the intervening period witnesses may have disappeared or vital documentary evidence lost".

It was suggested in argument that when a leader is charged with an offence in a later office, the Tribunal which considered the question of misconduct in a previous office could be simply revived. It would be difficult to bring together a previous Tribunal after many years intervening between the two offices. This would be completely unworkable in a situation where a leader who was previously charged in a previous office was dealt with by a Tribunal which is different from a Tribunal which would be constituted to deal with a leader in a later office which requires a different Tribunal. For example, a Tribunal which was set up to deal with a member of Parliament who was previously dealt with by a Tribunal may be different if such a member occupied a different office such as office of Chief Justice or a judge of the National Court. The later office would be dealt with by a different Tribunal to the previous Tribunal which dealt with the previous office. This simply would create an unworkable situation.

The second proposition in Auna's case poses many potential difficulties. The parliament failed to address them. This is further support for the argument that Parliament did not address the issue at hand and that there is a gap in the law.

There is another issue which has not been raised by this reference, namely, whether a leader who has completed a term of office or resigns from office may be charged with the same misconduct offence after 3 years has expired from the expiration of the term of office or from resignation from the office. The Constitution or the Organic Law are silent on this point. Again, there is a gap in the law on this issue. This is a matter which is reserved for the Parliament under s 28 of the Constitution. Parliament has not addressed this issue.

For all these reasons, I would not formulate such a rule of law but leave this matter for legislation.

I now turn to the application of these conclusions to the questions specifically referred. It would be more appropriate to deal with the questions Q2, Q1, and Q3 in that order. That is the chronological order of events in a leadership Tribunal proceeding.

Question 2 has been poorly worded and is confusing. It would appear that this question was based on the assumption that the second proposition in Auna's case is valid. As I have rejected this assumption, it is not necessary to answer questions 2(a) to 2(e). Those are questions dealing with the jurisdiction of the Ombudsman Commission and the Public Prosecutor before the matter is referred to a Tribunal. Questions 2(f) to 2(i) essentially raise the same questions as were raised in Question 1 in Auna's case. As I have endorsed the first part of Auna's case, I would answer these questions in the negative.

Question 1 does not raise the question of jurisdiction of a Tribunal. Where a Tribunal completes its hearing and makes a recommendation to the appropriate authority on penalty, there is nothing further it is required to do under the law as far as adjudication of the matter is concerned. In essence, what this question raises is the legal effect of a penalty imposed by the appropriate authority after the leader has resigned from office. It would appear from the provisions relating to the powers of the Governor-General that he is bound to act. If he acts after the resignation is presented, it would not be practicable to dismiss a person who is not in office. Such a dismissal could not in law operate as a dismissal from office. That is the effect of the first proposition in Auna's case. In relation to the question of other penalties, the only other penalty which may practically be imposed is that of a fine but in my view this does not serve any purpose as a fine is intended to be imposed on a person who is in office and the fine is intended to discipline him to either correct or improve his conduct in office.

Question 3 has been posed again on the assumption that the second proposition in Auna's case is valid. As I have rejected this argument, there is no question of a leader being charged in a current office for misconduct in a previous leadership position. That is the position in law as it stands.

Where the question deals with matters of substantial law, it follows from the first proposition in Auna's case that these are matters that should be dealt with by the legislature. Insofar as these questions raise matters of procedure, this Court has no jurisdiction whatsoever. Under s 41 of the Organic Law, such matters are delegated to be made by the Head of State on the advice of the National Executive Council in the form of regulations. It is clear that no such regulations have been made. Under s 22 of the Constitution, where there is a lack of such procedural laws, this may be supplied by the National Court. The Supreme Court has no such jurisdiction. I would answer this question as follows. The Supreme Court has no jurisdiction to deal with these issues.

My answers are as follows:

Question 1

(a)      No

(b)      No

Question 2

(a)      Not necessary to answer

(b)      Not necessary to answer

(c)      Not necessary to answer

(d)      Not necessary to answer

(e)      Not necessary to answer

(f)      No

(g)      No

(h)      No

(i)       No

Question 3

Insofar as this question raised substantive matters of law, they are matters for the National Parliament. Insofar as this question raises matters of practice and procedure, they are matters of regulation to be made by the Head of State on the advice of the National Executive Council.