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Namah v Higgins [2020] PGNC 174; N8407 (7 July 2020)

N8407

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO 299 OF 2018


HON BELDEN NORMAN NAMAH
Plaintiff


V


LEADERSHIP TRIBUNAL COMPRISING
THE HONOURABLE JUSTICE TERENCE HIGGINS AND
SENIOR MAGISTRATES PATRICIA TIVESE AND ALEX KALANDI
First Defendant


PUBLIC PROSECUTOR
Second Defendant


OMBUDSMAN COMMISSION
Third Defendant


CHIEF JUSTICE
Fourth Defendant


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fifth Defendant


Waigani: Cannings J
2020: 24th, 30th June, 1st, 7th July


JUDICIAL REVIEW – review of decision of leadership tribunal to find leader guilty of misconduct in office and recommend dismissal from office – whether Public Prosecutor functus officio after a first tribunal to which the matter was referred was permanently restrained from dealing with it – whether Public Prosecutor obliged to obtain fresh referral of matter from the Ombudsman Commission – whether Chief Justice obliged to revoke appointment of first tribunal before appointing second tribunal – whether Public Prosecutor, Chief Justice and/or leadership tribunal exceeded jurisdiction.


NATURAL JUSTICE – leadership tribunals –whether a leader found guilty of misconduct in office has a right to be heard at a separate hearing on the question of penalty – tribunal proceedings subject to the principles of natural justice – Constitution, ss 28(1)(g), 28(5), 59 – Organic Law on the Duties and Responsibilities of Leadership, s 27(4).


The Ombudsman Commission referred a matter of alleged misconduct in office regarding the plaintiff to the Public Prosecutor for prosecution before a leadership tribunal. The Public Prosecutor requested the Chief Justice to appoint a tribunal, which he did, and the Public Prosecutor referred the matter to the tribunal. However, that tribunal was, on application by the plaintiff, permanently restrained by the National Court from conducting any further hearing of the plaintiff’s matter on the ground of apprehended bias. The Public Prosecutor then requested the Chief Justice to appoint a second tribunal, which he did, and the Public Prosecutor then referred the same matter to the second tribunal. Upon appearing before the second tribunal, the plaintiff questioned its jurisdiction and requested it to refer constitutional questions to the Supreme Court, his contention being that it lacked jurisdiction, as the Public Prosecutor was functus officio and the tribunal had been unlawfully appointed. The tribunal declined the request and proceeded to inquire into the matter. After receiving the evidence and hearing submissions from counsel for the Public Prosecutor and the plaintiff, the tribunal reserved its decision. It found that the plaintiff was guilty of misconduct in office and recommended that he be dismissed from office. The plaintiff then, before the recommendation for dismissal was implemented, applied to the National Court and was granted leave for judicial review of the tribunal’s decision and a stay of its decision. At the trial of the application for judicial review the plaintiff raised two principal arguments in support of his grounds of review: (1) that the Public Prosecutor’s request to the Chief Justice to appoint a second tribunal and subsequent decisions, including the tribunal’s final decision were unconstitutional and invalid, in that: (a) the Public Prosecutor was functus officio as he had discharged his functions in relation to the matter referred to him by the Ombudsman Commission; and (b) the appointment of the first tribunal was not revoked prior to appointment of the second tribunal; and (2) the second tribunal failed to afford natural justice to the plaintiff, in that it failed to give him an opportunity to be heard before deciding to recommend that he be dismissed from office.


Held:


(1) The Public Prosecutor was not functus officio as there was no law expressly or impliedly requiring him to obtain a fresh referral of a matter from the Ombudsman Commission in circumstances where the tribunal to which the first referral had been referred was restrained from further dealing with it, and the terms of the injunction restraining the first tribunal did not restrain the Public Prosecutor from using the matter he had referred to the first tribunal as the basis for his request to the Chief Justice to appoint a new tribunal or from referring the same matter to and prosecuting it before the second tribunal.

(2) Though it might be desirable for the appointment of members of a leadership tribunal that has been permanently restrained from dealing with a matter, to be expressly revoked before appointment of a replacement tribunal, it is constitutionally unnecessary where, as in this case, the jurisdiction of the first tribunal was dissolved by operation of the order of the National Court, resulting in the appointment of the members of the first tribunal being by necessary implication dissolved.

(3) The Public Prosecutor’s request to the Chief Justice to appoint a second tribunal, the appointment of the second tribunal by the Chief Justice, the referral of the matter to the second tribunal, the prosecution before the second tribunal and the proceedings of the second tribunal did not involve errors of jurisdiction arising from the Public Prosecutor’s failure to obtain a fresh referral from the Ombudsman Commission or the Chief Justice’s failure to formally revoke the appointment of members of the first tribunal.

(4) A leadership tribunal is bound by ss 28(1)(g), 28(5) and 59 of the Constitutionand s 27(4) of the Organic Law on the Duties and Responsibilities of Leadership to conduct its proceedings in accordance with the principles of natural justice, the minimum requirements of which are to act fairly and be seen to act fairly.

(5) If a tribunal decides that the leader is guilty of misconduct in office, it must, in order to act fairly and be seen to act fairly (because of the discretion available to it as to whether to recommend dismissal from office or imposition of an alternative penalty) conduct a separate hearing and provide the leader with the opportunity to be heard on the question of penalty.

(6) Here, the tribunal failed to afford natural justice to the plaintiff, as it failed to give him the opportunity to be heard before recommending that he be dismissed from office.

(7) Declared: that there were no errors of jurisdiction arising from the alleged errors of the Public Prosecutor not obtaining a fresh referral from the Ombudsman Commission and the Chief Justice not revoking the appointment of members of the first tribunal, but there was an error of jurisdiction in the second tribunal’s recommendation that the plaintiff be dismissed from office, arising from its failure to afford natural justice to the plaintiff.

(8) Ordered: that there be a further hearing on the question of what further orders, declarations or other remedies, if any, ought to be granted.

Cases Cited


The following cases are cited in the judgment:


Application by Hon Belden Norman Namah MP in his capacity as Leader of the Opposition (2020) SC1946
Dale Christopher Smith v Minister for Lands (2009) SC973
Demetrio v Independent Police Complaints Commission [2015] EWHC 593
Gabriel Laku v The State [1981] PNGLR 350
GR Logging Ltd v David Dotaona (2018) SC1690
Iambakey Okuk v Gerald Sidney Fallscheer [1980] PNGLR 274
Isaac Lupari v Sir Michael Somare (2008) N3476
Konivaro v Constitutional Office-holders Rights Tribunal, OS (JR) No 901 of 2016, 13.04.18 unreported
Leonard Sabadi v The Police (2002) N2164
Moses Aikaba v Tami [1971-1972] PNGLR 155
Namah v Poole (2016) N6397
Namah v Tribunal (2015) N6121
Namah v Leadership Tribunal (2018) N7351
Philip Kamo v Commissioner of Police (2001) N2084
Re Belden Namah (2018) N7194 (LT) N7351
Saperus Yalibakut v The State[2006] 1PNGLR 357
SC Ref No 1 of 2017, Special Reference by the Ombudsman Commission re Constitution, Section 28(5) and Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645
SC Ref No 2 of 2016, Re Section 169(4)(c) of the Constitution (2016) SC1508
SC Ref No 2 of 2016, Re Section 169(4)(c) of the Constitution (2016) SC1516
SC Ref No 3 of 2005, Re the Public Prosecutor’s Power to Request Chief Justice to Appoint a Leadership Tribunal (2008) SC1011
SC Ref No 7 of 2014 & SC Ref Nos 1 & 2 of 2015 Re the Powers, Functions, Duties & Responsibilities of the Public Prosecutor & Leadership Tribunals (2016) SC1534
South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761
Steven Kongi Dami v The State (2009) N3628
The State v Bafe Quati [1990] PNGLR 57
Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329
Tom Longman Yaul v The State (2005) SC803


JUDICIAL REVIEW


This was an application for judicial review of the decision of a leadership tribunal to find a leader guilty of misconduct in office and recommend his dismissal from office.


Counsel:


G J Sheppard & P Tabuchi, for the Plaintiff
P Kuman &M Boas, for the First Defendant
G Geroro, for the Second Defendant
R P Koralyo& M Kik, for the Third Defendant
P Ifina, for the Fourth Defendant
T Tanuvasa, for the Fifth Defendant


7th July, 2020


1. CANNINGS J: This caseis an application by the plaintiff, the Honourable Belden Norman Namah MP, for judicial review of the decision of a leadership tribunal chaired by Justice Higgins (the first defendant, the “Higgins tribunal”),made on 9 April 2018,to find him guilty of misconduct in office and recommend his dismissal from office. He makes two principal arguments:


(1) the Public Prosecutor’s request to the Chief Justice to appoint the Higgins tribunal, and all subsequent decisions including the decision of 9 April 2018 were unconstitutional and invalid, because:


(a) the Public Prosecutor was functus officio; and


(b) the appointment of members of an earlier tribunal (the “Poole tribunal”), which had been permanently restrained from dealing with the plaintiff’s matter, was not revoked prior to appointment of the Higgins tribunal; and


(2) the Higgins tribunal failed to afford him natural justice.


2. Before addressing those arguments (which are my summation of a more elaborate pleading of grounds of review in the plaintiff’s originating statement under Order 16, Rule 3(2)(a) of the National Court Rules), I will set out the facts.


FACTS


3. I make the following findings of fact.


2015


13 April the Ombudsman Commission referred a matter of alleged misconduct in office regarding the plaintiff to the Public Prosecutor for prosecution before a leadership tribunal


14 August Public Prosecutor requested Chief Justice to appoint tribunal


9 October Injia CJ appointed Poole tribunal (comprising Justice Poole as Chairman and senior Magistrates Mark Selefkariu and Ernest Wilmot)


20 November an application by the plaintiff for an injunction to restrain the proceedings of the Poole tribunal in OS (HR) No 8 of 2015 was refused by the National Court (Namah v Tribunal (2015) N6121)


24 November Public Prosecutor referred matter to the Poole tribunal


2016


2 February the National Court (Koeget AJ) referred a question of constitutional interpretation to the Supreme Court under s 18(2) of the Constitution regarding the appointment of the Poole tribunal (SC Ref No 2 of 2016, Re Section 169(4)(c) of the Constitution (2016) SC1508)


26 July the Supreme Court reference was resolved (SC Ref No 2 of 2016, Re Section 169(4)(c) of the Constitution (2016) SC1516)


2 September the National Court (Cannings J) in OS (HR) No 8 of 2015 permanently restrained the Poole tribunal from proceeding further on the ground of apprehended bias, as a result of an application for enforcement of human rights by the plaintiff (Namah v Poole(2016) N6397)


8 November Public Prosecutor requested Chief Justice to appoint another tribunal


2017


28 September Salika ACJ appointed the Higgins tribunal


18 October Higgins tribunal commenced sitting – the plaintiff raised the jurisdictional questions that now fall under his first principal argument, and requested that the questions be referred to the Supreme Court under s 18(2) of the Constitution – the tribunal declined the request – the Public Prosecutor referred the same matter regarding the plaintiff (referred to him by the Ombudsman Commission), which had been referred to the Poole tribunal, to the Higgins tribunal


20 October day 2 of Higgins tribunal – evidence received


7 November day 3 of Higgins tribunal – evidence received


8 November day 4 of Higgins tribunal – evidence received, and the prosecution case was closed


9 November day 5 of Higgins tribunal – Mr Sheppard for the plaintiff indicated that there would be no evidence for the plaintiff – adjourned to next day for submissions


10 November last day of Higgins tribunal sittings – submissions made and the tribunal reserved its decision


2018


9 April the Higgins tribunal announced its decision: the plaintiff was found guilty of misconduct in office and recommended for dismissal from office (Re Belden Namah (2018) N7194 (LT)N7351)


11 May the plaintiff commenced the present proceedings by applying for leave to seek judicial review


5 July National Court (Dingake J) granted leave for judicial review in these proceedings and stayed the decision of the Higgins tribunal (Namah v Leadership Tribunal (2018) N7351)


2019


11 September plaintiff became Leader of the Opposition


2020


29 May in separate proceedings commenced by the plaintiff in his capacity as Leader of the Opposition under s 18(1) of the Constitution, challenging the appointment in May 2019 of Hon James Marape MP as Prime Minister, the Supreme Court declared that the plaintiff has been suspended from duty with effect from 18 October 2017 when the matter concerning him was referred to the Higgins tribunal (Application by Hon Belden Norman Namah MP in his capacity as Leader of the Opposition (2020) SC1946)


24 June judicial review trial commenced


1 July judicial review trial concluded and decision reserved


Other findings


4. I also make these findings of fact:


Tribunal decision of 9 April 2018


5. Two sets of reasons for decision were delivered. One was by Justice Higgins and Senior Provincial Magistrate Tivese. The other was by the other member of the tribunal, Senior Magistrate Alex Kalandi.


6. There were five categories of allegations of misconduct in office (and, as explained by Mr Kalandi, but not by Higgins J and Ms Tivese) ten numbered allegations or counts:


1 – interference with administrative process re suspension of District Administrator (count 1);


2 –storming the Supreme Court when Court was in session and demanding resignation of Chief Justice on 24 May 2012 (count 2);


3 –late or non-submission of Ombudsman Commission annual statements 2007 to 2012 (counts 3, 4, 5, 6 and 7);


4 – misleading annual statement to the Ombudsman Commission: 2006-2007 (counts 8 and 9);


5 –failure to lodge financial returns to Office of Integrity of Political Parties and Candidates re 2012 general election (count 10).


7. Mr Kalandi agreed with the Chairman and Ms Tivese on both the question of guilt and the question of penalty.


8. As to guilt, the conclusion was that the plaintiff was:


9. Count 2 was clearly regarded as the most serious finding of misconduct, as it was the only one that was regarded as warranting dismissal from office.


10. It is a feature of both sets of reasons that there was no clear demarcation between the findings of guilt and the recommendations as to penalty. For example, Higgins J and Ms Tivese, when summing up their findings regarding count 2, stated:


65. To the extent that these proceedings are analogous to criminal proceedings, a leader has a right to a fair hearing within a reasonable time. However, as the cases indicate, the fact that there has been delay, even undue delay, does not mandate either a stay or, as is here suggested, an acquittal. The seriousness of the misconduct committed together with the lack of any explanation or expression of remorse further militates against any response other than a recommendation of dismissal. It is an unfortunate consequence that a local member twice re-elected is taken away from his constituents for 3 years but that is the result of the Leader’s own misconduct.


66. It follows that we are obliged to recommend to his Excellency, the Governor-General, that on this proven allegation of misconduct, the leader be dismissed from office.


67. We turn now to the remaining allegations.


11. Higgins J and Ms Tivese dealt first with the finding of guilt (without expressly stating it) and the appropriate penalty for category 2/count 2, and then proceeded to deal with the findings of guilt and penalty for the other categories and counts.


12. Mr Kalandi took a slightly different (and slightly clearer) approach in that he started with category 1/count 1 and worked through the allegations in numerical order. However, like Higgins J and Ms Tivese, he conflated the issues of guilt and penalty. For example, Mr Kalandi, when summing up his findings regarding count 2, stated:


The Constitution establishes the three arms of the government and the duties and functions that goes with them. Section 99 of the Constitution plainly sets out the Structure of the Government of the Independent State of Papua New Guinea. Thus, the respective powers and functions of the three arms of the government shall be kept separate from each other. The conduct by the Leader and associates, fellow politicians who aided and abetted him in executing the event as unfolded was a serious war on the independence of the arms of government, thus the judiciary.


In this Tribunal, I am satisfied as per the evidence presented by the prosecution which is uncontested by the counsel for the Leader and I reject his submission for no dismissal of the Leader. The Leader is guilty of misconduct in office as alleged on this charge.


13. The conflation of the issues of guilt and penalty that characterised both sets of reasons for decision was carried through to the final paragraph, No 80, of the recorded decision of the tribunal, which states:


80. It is therefore recommended to the Head of State that:


Category 1

FINDING:

Ø The Leader is not guilty of misconduct in office.


Category 2

FINDING:

Ø The Leader is guilty of misconduct in office and should be dismissed from office.


Category 3

Ø Count 1: The Leader is guilty of misconduct in office.

A fine of K1000.00 is recommended.


Ø Count 2: The Leader is guilty of misconduct in office.

A fine of K750.00 is recommended.


Ø Count 3: The Leader is guilty of misconduct in office.

A fine of K250.00 is recommended.


Ø Count 4: The Leader is guilty of misconduct in office.

A fine of K750.00 is recommended.


Ø Count 5: The Leader is guilty of misconduct in office.

A fine of K500.00 is recommended.


Ø Count 6: The Leader is guilty of misconduct in office.

A fine of K1000.00 is recommended.


Ø Count 7: The Leader is guilty of misconduct in office.

No further penalty is recommended.


_____________________ _________________ ________________

Justice Terence J Higgins Ms Patricia Tivese Mr Alex Kalandi

Senior Principal Magistrate Senior Magistrate


14. It will be observed that there is no mention of categories 4 and 5 and that the numbering of the counts does not match how they were set out (as 1 to 10) in the text of the reasons for decision of Mr Kalandi.


15. It is unclear from the evidence whether a formal instrument of recommendation as to penalty was ever executed (in the above or any other terms) by the members of the tribunal, and if it was, whether it was conveyed to the Governor-General.


FORMAL GROUNDS OF REVIEW


16. The grounds are pleaded in the originating statement in the following terms:


  1. The decision by the Public Prosecutor (“PP”) on the 8th November 2016 to request the CJ to appoint a second Leadership Tribunal to investigate allegations of misconduct in office against the plaintiff and the formal written request to do so, made in the absence of any revocation of the first Leadership Tribunal’s appointment, and in the absence of a fresh or further referral from the Ombudsman Commission (“OC”), was an error of jurisdiction, unconstitutional and invalid for the following reasons:
  2. The decision by the DCJ to appoint a second tribunal without revoking the appointment of the first tribunal, or without a valid request from the PP, was an error of jurisdiction, unconstitutional and invalid, not being in accordance with, and contrary to s 27 of the OLDRL and the Constitution.
  3. The decision of the second Leadership Tribunal delivered 9 April 2018 was ultra vires its powers for the reasons that the constitutional process resulting in the purported appointment of the second Leadership Tribunal pleaded in paragraphs 1 and 2 above was fraught with jurisdictional error, such as to vitiate its proceedings, findings and recommendations, and render them ineffective, invalid and unconstitutional.
  4. Further and or alternatively,

17. The connexion between the formal grounds of review and principal arguments (as I have summarised them) 1(a), 1(b) and 2, is shown in the following table.


CONNEXION BETWEEN GROUNDS OF REVIEW AND PRINCIPAL ARGUMENTS

Grounds of review
Principal arguments
1(a)
1(a)
1(b)
1(b)
2
1(a) and 1(b)
3
1(a) and 1(b)
4(a)
1(a)
4(b)
2

FIRST PRINCIPAL ARGUMENT: PUBLIC PROSECUTOR’S REQUEST TO CHIEF JUSTICE TO APPOINT SECOND TRIBUNAL AND ALL SUBSEQUENT DECISIONS INVOLVED JURISDICTIONAL ERROR


Plaintiff’s argument


18. The plaintiff argues that the Public Prosecutor’s request to the Chief Justice to appoint the Higgins tribunal, the appointment of that tribunal by the Acting Chief Justice, the referral of the matter regarding the plaintiff to the Higgins tribunal, the prosecution before the Higgins tribunal and the entire proceedings of the Higgins tribunal, including the decision of 9 April 2018, involved errors of jurisdiction, were unconstitutional and invalid, because:


(a) the Public Prosecutor was functus officio; and


(b) the appointment of the Poole tribunal was not revoked prior to appointment of the Higgins tribunal.


Defendants’ response


19. In addition to arguing that the Public Prosecutor was not functus officio, and that the failure to expressly revoke the appointment of the Poole tribunal is inconsequential, the defendants argue, as a preliminary point, that all issues relating to whether a second tribunal could be appointed to inquire into the same allegations of misconduct in office that were referred to the Poole tribunal, were resolved by the decision of the National Court in Namah v Poole (2016) N6397. They refer to the comments I made, as the presiding Judge, in the course of explaining that a permanent injunction would be granted, restraining the Poole tribunal, that it would be permissible for a second tribunal to be appointed. I stated:


I will in general terms grant the injunction sought. The argument to justify a permanent injunction to restrain the tribunal from further convening has been made out by upholding the plaintiff’s second fundamental proposition [that a reasonable apprehension of bias on the part of the tribunal has arisen]. It is in the interests of justice to grant such an injunction as the tribunal, as it is presently constituted, has, with respect, compromised the real and apparent impartiality that it is required to bring to bear on the matter before it.


This is not a permanent injunction to restrain the appointment of another, differently constituted, tribunal. It is not a bar to the Public Prosecutor making another request to appoint a tribunal. It does not prevent the Chief Justice appointing another tribunal. It does not protect the plaintiff from prosecution before a differently constituted tribunal. It puts the plaintiff back in the position he was in prior to the appointment of the tribunal. He will need to wait for the Public Prosecutor to decide whether he still wishes to bring the proceedings.


20. The defendants argue, on the strength of those comments, that the questions the plaintiff has argued as to the appointment of the Higgins tribunal are captured by the doctrines of res judicata and issue estoppel: the issues have been finally resolved in previous litigation. The defendants submit that the preconditions for application of those doctrines, as set out by the Supreme Court in many cases, summarised recently in GR Logging Ltd v David Dotaona (2018) SC1690, have been satisfied. That is, when a comparison is drawn between the present litigation and the earlier decision in Namah v Poole (2016) N6397:


(1) the earlier decision was judicial;


(2) the decision was pronounced;


(3) the decision-maker (the National Court) had jurisdiction over the parties and the subject matter;


(4) the decision was:

(a) final; and

(b) on the merits;


(5) the earlier decision determined the question that is raised in the present litigation (ie whether a second tribunal could be appointed to deal with the same matter that was before the Poole tribunal); and


(6) the parties are, or are effectively, the same.


I will deal with that preliminary point first.


Do the doctrines of res judicata or issue estoppel apply to the plaintiff’s first principal argument?


21. No. The defendants have failed to appreciate the nub of the plaintiff’s first principal argument. The plaintiff argues that there were flaws in the appointment of the Higgins tribunal, due to the Public Prosecutor being functus officio and there being no revocation of appointment of the Poole tribunal. The plaintiff is not arguing that there could be no second tribunal; rather that, if there were to be a second tribunal, certain procedures had to be followed: there had to be a fresh referral from the Ombudsman Commission to the Public Prosecutor, and the Chief Justice had to revoke the appointment of the Poole tribunal before appointing the Higgins tribunal.


22. It is only the issue of whether there could be a second tribunal that was determined in Namah v Poole (2016) N6397. The issue of what procedure would need to be followed before a second tribunal was appointed was not determined. Therefore, neither the doctrine of res judicata nor the doctrine of issue estoppel apply in the present case. The plaintiff is not prevented from raising the issues underpinning his first principal argument.


23. I will now address the merits of both limbs of the plaintiff’s first principal argument.


(a) Was the Public Prosecutor functus officio?

24. Mr Sheppard for the plaintiff submits that the Public Prosecutor discharged his functions in relation to the matter regarding the plaintiff, which had been referred to him by the Ombudsman Commission on 13 April 2015, by using it as the basis for his request to the Chief Justice to appoint the Poole tribunal and by referring it on 24 November 2015 to that tribunal. He stresses that the Poole tribunal was on 2 September 2016 permanently enjoined from making due inquiry into the matter referred to it by the Public Prosecutor, by the order of the National Court, which stated:


The relief sought in paragraph 1(e) is generally granted and accordingly the first defendants are permanently restrained from further convening in relation to the allegations of misconduct in office against the plaintiff, the subject of these proceedings, and from inquiring into and determining those allegations of misconduct in office.
25. In these circumstances it is argued that the Public Prosecutor, and also the Acting Chief Justice, were functus officio in connection with the matter regarding the plaintiff that had been referred by the Ombudsman Commission to the Public Prosecutor on 13 April 2015. Mr Sheppard referred to the following description of the term functus officio provided by Burnett LJ in Demetrio v Independent Police Complaints Commission [2015] EWHC 593, which was adopted by Collier J in South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761:


Functus officio means no more than that a judicial, ministerial or administrative actor has performed a function in circumstances where there is no power to revoke or modify it. It is a Latin tag still in universal use and usually abbreviated to the short statement that someone is “functus”.


26. Mr Sheppard points out that the functus officio principle has been recognised as being applicable to the decisions of the Public Prosecutor and the Chief Justice and the whole of the Leadership Code process of prosecution by the Supreme Court in SC Ref No 7 of 2014 & SC Ref Nos 1 & 2 of 2015 Re the Powers, Functions, Duties & Responsibilities of the Public Prosecutor & Leadership Tribunals(2016) SC1534. He cites Salika DCJ (in an opinion shared by Kandakasi J, Mogish J, Kassman J and Higgins J), whostated:


The other reason the Public Prosecutor cannot ask the Ombudsman Commission to furnish further evidence is because once the Ombudsman Commission refers the matter to the Public Prosecutor, it (Ombudsman Commission) is functus officio on that matter. ...


The Public Prosecutor’s role is to satisfy him or herself on the matter referred to him or her by the Ombudsman Commission that there is indeed sufficient reliable credible cogent evidence that the leader is guilty of misconduct in office. In other words the Public Prosecutor must agree from his own independent assessment and consideration of the relevant evidence with the opinion of the Ombudsman Commission. If the Public Prosecutor in his or her independent opinion does not agree with the opinion of the Ombudsman Commission, he or she must decline to prosecute the matter. The matter ends there and the Public Prosecutor is functus officio.


27. Mr Sheppard submits that once the Public Prosecutor referred the plaintiff’s matter to the Poole tribunal, he became functus officio on that matter: he discharged his function and he could not go back and refer the same matter to a different tribunal.


28. I reject that argument, for two reasons. First, the Public Prosecutor did not fully discharge his functions in regard to the matter that had been referred to him by the Ombudsman Commission. He partially exercised his functions by making the decision to prosecute the matter and to request the Chief Justice to appoint a tribunal and to refer the matter to the Poole tribunal. However, he had yet to complete the discharge of his functions as he did not prosecute the matter before the Poole tribunal.


29. Secondly, this is not a case where the Public Prosecutor discharged functions and then discharged them again in a way that purported to reverse, amend or remake decisions made in the original discharge of functions. It is only when a decision-maker completes the discharge of their functions and later wants to do something different, that the functus officio principle is actually applicable. This is apparent from the leading judgment of Collier J in South Seas Tuna Corporation Ltd v Betty Palaso (2019) SC1761, where her Honour, at para 77,in an opinion shared by the other Judges, Nablu J and Neill J, set out the circumstances in which an administrative decision-maker will be regarded as being functus officio in respect of a decision that has already been made:


30. I consider that the functus officio principle has no application in the present case as the Public Prosecutor did not propose to, and did not, make any decisions regarding the plaintiff’s matter that differed from the decisions he had previously made regarding the prosecution of the same matter before the Poole tribunal.


31. Furthermore, there is no law expressly or impliedly requiring the Public Prosecutor to obtain a fresh referral of a matter from the Ombudsman Commission in circumstances where the tribunal to which the first referral had been referred was restrained from further dealing with it, and the terms of the injunction restraining the first tribunal did not restrain the Public Prosecutor from using the matter he had referred to the first tribunal as the basis for his request to the Chief Justice to appoint a new tribunal or from referring the same matter to and prosecuting it before the second tribunal.


32. I find that the Public Prosecutor, and also the Acting Chief Justice who appointed the Higgins tribunal, were not functus officio. I therefore find that the following decisions and processes:


did not involve jurisdictional error on account of the Public Prosecutor being functus officio.


(b) Should the appointment of the members of the Poole tribunal have been revoked?

33. Mr Sheppard highlights the fact that the appointment of the members of the Poole tribunal had not been revoked prior to the appointment on 28 September 2017 of the Higgins tribunal, and submits that it was a jurisdictional error on the part of the Acting Chief Justice to have appointed two tribunals to deal with the same matter. It is argued that a decision ought to have been made under Schedule 1.10 of the Constitution to revoke the appointment of the Poole tribunal. Schedule 1.10 (exercise and performance of powers and duties) states:


(1) Where a Constitutional Law confers a power or imposes a duty, the power may be exercised, or the duty shall be performed, as the case may be, from time to time as occasion requires.

(2) Where a Constitutional Law confers a power or imposes a duty on the holder of an office as such, the power may be exercised, or the duty shall be performed, as the case may be, by the holder (whether substantive or other) for the time being of the office.


(3) Where a Constitutional Law confers a power to make any instrument or decision (other than a decision of a court), the power includes power exercisable in the same manner and subject to the same conditions (if any) to alter the instrument or decision.


(4) Subject to Subsection (5), where a Constitutional Law confers a power to make an appointment, the power includes power to remove or suspend a person so appointed, and to appoint another person temporarily in the place of a person so removed or suspended or, where the appointee is for any reason unable or unavailable to perform his duties, to appoint another person temporarily in his place.


(5) The power provided for by Subsection (4) is exercisable only subject to any conditions to which the exercise of the original power or appointment was subject.


34. Mr Sheppard points out that there is precedent for the revocation of the appointment of members of a tribunal in circumstances in which their original appointment is no longer appropriate, in the case of the proceedings registered as LT No 1 of 2018, in the matter of the Honourable Patrick Pruaitch MP, the member for Aitape-Lumi Open. The original tribunal comprised Salika DCJ and then senior Magistrates Peter Toliken and Nerrie Eliakim. The appointment of the Magistrates had become inappropriate by 2018 due to their elevation to other judicial positions, as a Judge and as Chief Magistrate respectively, so the then Chief Justice, Sir Salamo Injia, on 21 August 2018 executed an instrument of revocation of appointment.


35. A similar decision should have been made in this case, it is argued, prior to the appointment of members of the Higgins tribunal. The absence of such a decision means that the Higgins tribunal was unlawfully appointed.


36. I reject that argument. Though it might be desirable for the appointment of members of a leadership tribunal that has been permanently restrained from dealing with a matter, to be expressly revoked before appointment of a replacement tribunal, it is constitutionally unnecessary where, as in this case, the jurisdiction of the first tribunal was dissolved by operation of the order of the National Court.


37. While it would have put the issue beyond all doubt if the order I made on 2 September 2016 had expressly revoked the appointment of the members of the Poole tribunal, the order that I actually made is to the same effect. The Poole tribunal, as constituted by its three members, was “permanently restrained from further convening in relation to the allegations of misconduct in office against the plaintiff, the subject of these proceedings, and from inquiring into and determining those allegations of misconduct in office”. Its jurisdiction was permanently dissolved, resulting in the appointment of the members of the Poole tribunal being by necessary implication dissolved.


38. I find no jurisdictional error on the part of the Acting Chief Justice in appointing the Higgins tribunal in the absence of express revocation of the appointment of the members of the Poole tribunal.


SECOND PRINCIPAL ARGUMENT: HIGGINS TRIBUNAL FAILED TO AFFORD NATURAL JUSTICE TO THE PLAINTIFF


39. The plaintiff argues that the tribunal failed to afford him natural justice as it failed to give him the opportunity to be heard before it decided to recommend that he be dismissed from office.


40. The defendants respond that in fact the plaintiff was given a right to be heard on penalty as the invitation provided by the tribunal to counsel, after the close of evidence, before submissions were made on 10 November 2017, was to make submissions generally; and the submissions actually made (by Mr Popeu for the Public Prosecutor and Mr Sheppard for the plaintiff) encompassed the appropriate penalty that should be recommended in the event that the plaintiff was found guilty of misconduct in office. The defendants point out that there is no requirement in the Constitution or the Organic Law on the Duties and Responsibilities of Leadership for a separate hearing on penalty, and in all the circumstances it cannot be said that the plaintiff was denied natural justice.


Tribunal obliged to afford natural justice


41. All parties agree that the Higgins tribunal was obliged to conduct its proceedings in accordance with the principles of natural justice. Its obligation in that regard and the correlative right of the plaintiff to be afforded natural justice arise under ss 28(1)(g), 28(5) and 59 of the Constitution and s27(4) of the Organic Law on the Duties and Responsibilities of Leadership.


42. Section 28(1)(g) of the Constitution states:


For the purposes of this Division, an Organic Law ... shall establish independent tribunals that—


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


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


43. Section 28(5) of the Constitution states:


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


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

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

[Emphasis added]


44. Section 59 of the Constitution states:


(1) Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.


(2) The minimum requirement of natural justice is the duty to act fairly and, in principle, to be seen to act fairly.


[Emphasis added]


45. Section 27(4) of the Organic Law on the Duties and Responsibilities of Leadership, at the relevant time (October and November 2017, when the proceedings of the Higgins tribunal were conducted, before reserving for a decision, which was delivered on 9 April 2018) stated:


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


[Emphasis added]


46. The above version of s 27(4), which had come about by virtue of the Organic Law on the Duties and Responsibilities of Leadership Amendment Law No 2 of 2006, which required that a tribunal “make due inquiry into the matter referred to it, with legal formalities and strict compliance with the rules of evidence and the provisions of the Evidence Act”, was on 22 December 2017 ruled invalid, ineffective and unconstitutional by the Supreme Court in SC Ref No 1 of 2017, Special Reference by the Ombudsman Commission re Constitution, Section 28(5) and Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1)(2017) SC1645. Consequently, since 22 December 2017, including on the day, 9 April 2018, that the Higgins tribunal delivered its decision, s 27(4) has reverted to its original wording, which is:


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


[Emphasis added]


47. Significantly, both versions of 27(4) required the tribunal to comply with the principles of natural justice. So at all times from the beginning to the end of its proceedings the Higgins tribunal was obliged to afford natural justice to the leader.


Facts


48. As to whether the parties were invited by the tribunal to make submissions on penalty at the same time that they were invited to make submissions on guilt, I reiterate my findings of fact, that:


49. Irrespective of whether there was an invitation to make submissions on penalty and whether there was an expectation on the part of the tribunal that such submissions would be made and whether such submissions were in fact made, the question of law that remains is whether, as part of his right to be accorded a fair hearing in accordance with the principles of natural justice, the plaintiff had a right to a separate hearing on the question of penalty.


Did the plaintiff have a right to separate hearing on penalty?


50. Though there is no express legal requirement for a separate hearing, I have concluded that such a right indeed exists for the following reasons.


51. First, a leadership tribunal by its very nature involves a two-step decision-making process:


Step 1: is the leader guilty of misconduct in office? If yes, in what respects (of what charges or allegations has the leader been found guilty)?


Step 2: What is the appropriate penalty?


52. The issues involved in each step are different, calling for different submissions from the parties, and in the event that the leader is found guilty, even in instances where the leader admits some or all of the allegations, the details of the submission on penalty turn on the details of the finding that the leader is guilty. It is unfair to expect the leader to estimate what the details of a guilty finding might be, and to make submissions on penalty at the same time that submissions are made on verdict (Philip Kamo v Commissioner of Police (2001) N2084).


53. The sharp distinction between the decisions as to verdict and penalty has been recognised, in the case of leaders who are constitutional office-holders, by the Supreme Court in SC Ref No 3 of 2005, Re the Public Prosecutor’s Power to Request Chief Justice to Appoint a Leadership Tribunal (2008) SC1011. That distinction was not adhered to in a case of alleged misbehaviour by the Clerk of the Parliament in Konivaro v Constitutional Office-holders Rights Tribunal, OS (JR) No 901 of 2016, 13.04.18 unreported. It resulted in the entire referral process being vitiated by jurisdictional error. The decisions of the tribunal that the Clerk was guilty of misbehaviour and that he be removed from office were quashed by the National Court. Injia CJ stated:


It is clear that the NEC decided the question of removal without giving the applicant an opportunity to be heard on that question. ... A decision on the question of removal is a separate and distinct decision made by the appointing authority but before it is made, the case has to be put to the COH [constitutional office-holder] and the COH invited to give his response.


54. The decision in Konivaro might be thought to apply only to the special category of leaders who are constitutional office-holders, and the plaintiff does not fall within that category. However, the principle in Konivaro, which recognises and enforces the sharp distinction between the decision on guilt and the decision on penalty, applies, in my view, to all leadership tribunals.


55. Secondly, the tribunal that finds a leader guilty of misconduct in office has a discretion as to penalty. Dismissal from office is not mandatory. The discretion must be exercised in accordance with ss 28(1)(g)(ii) and 28(1A) of the Constitution and s 27(5) of the Organic Law on the Duties and Responsibilities of Leadership and the Leadership Code (Alternative Penalties) Act Chapter 1A. The discretionary nature of the decision on penalty requires that the leader found guilty be given the opportunity to make submissions as to the careful and methodical exercise of discretion.


56. Thirdly, though leadership tribunal proceedings are not criminal proceedings, they are disciplinary proceedings involving a determination of whether the person subject to the proceedings is guilty or not guilty, and if the person is guilty, a separate determination of the appropriate penalty. There are close parallels between criminal proceedings and leadership tribunal proceedings.


57. In criminal proceedings, the offender who has been found guilty has a right to a separate hearing on penalty, including the right to raise matters in mitigation on sentence, through the allocutus procedure (Moses Aikaba v Tami [1971-1972] PNGLR 155, Gabriel Laku v The State [1981] PNGLR 350, The State v Bafe Quati [1990] PNGLR 57, Leonard Sabadi v The Police (2002) N2164, Tom Longman Yaul v The State (2005) SC803, Saperus Yalibakut v The State[2006] 1PNGLR 357, Steven Kongi Dami v The State (2009) N3628).


58. There is no good reason that a leader who has been found guilty of misconduct in office by a leadership tribunal should have any lesser right, in terms of a right to a separate hearing on penalty, than a person convicted of a criminal offence by a court. A leader found guilty must be given the opportunity to express remorse, to explain why they acted as they did, to say why they should not be dismissed from office and really, to say whatever they want to say in mitigation of the misconduct in office of which they have been found guilty.


59. Fourthly, just as a court conducting criminal proceedings is obliged to be pro-active in ensuring that the accused person is afforded the full protection of the law under s 37 of the Constitution (Thomas Kavali v Thomas Hoihoi [1986] PNGLR 329), so it must be that a leadership tribunal is obliged at all times, from the beginning to the end of the proceedings, to ensure that the leader is afforded the full protection of the law.


60. Full protection means, in my view, hearing from the leader on the question of penalty at a separate hearing on penalty conducted after the tribunal has made a decision that the leader is guilty of misconduct in office. A tribunal must take control of the proceedings and ensure that there is such a separate hearing even in cases in which the leader and/or the leader’s legal representative want to shorten the process by making submissions on verdict and penalty at the same time.


61. Fifthly, I take judicial notice of it being the usual and accepted practice in the case of a leader who has been found guilty of misconduct in office by a leadership tribunal, to be provided a separate hearing on penalty. That it is the usual and accepted practice gave rise to a legitimate expectation on the part of the plaintiff and his legal advisers that in the event that he was found guilty, there would be a separate hearing on penalty. Denial of that legitimate expectation is in itself tantamount to a denial of natural justice (Iambakey Okuk v Gerald Sidney Fallscheer [1980] PNGLR 274).


Was the plaintiff denied natural justice by the Higgins tribunal?


62. The answer is yes for the following reasons:


  1. The tribunal did not make it clear when it adjourned on 9 November 2017 whether it would hear submissions only on verdict or on both verdict and penalty.
  2. By allowing, indeed encouraging, submissions to be made on both verdict and penalty on 10 November 2017, the tribunal clouded the minds of both counsel as to what they were making submissions on, and the tribunal clouded the minds of its members as to whether they were making a decision only on verdict or on both verdict and penalty.
  3. In the two sets of reasons for decision delivered on 9 April 2018, both Higgins J and Ms Tivese (in their joint statement of reasons) and Mr Kalandi (in his separate statement of reasons) conflated the issues of verdict and penalty, and this conflation, and merging and confusion of issues, was acute in the case of the category 2/allegation 2, regarding the storming of the Court on 24 May 2012.
  4. Neither Higgins J and Ms Tivese nor Mr Kalandi addressed the question of penalty and the relevant considerations set out in the Constitution and the Organic Law on the Duties and Responsibilities of Leadership in a systematic, careful or methodical way.
  5. By giving a combined decision on verdict and penalty, the tribunal failed to adhere to the rigour of the two-step decision-making process that was required.
  6. Critically, the tribunal failed, due to the absence of a systematic approach, to provide the plaintiff a separate hearing on penalty.
  7. The legitimate expectation of the plaintiff that he would have the opportunity to speak on the question of whether he should be dismissed from office, was defeated.

63. I conclude that there was a denial of natural justice: a failure of procedural fairness: a lack of due process. In the words of s 59 of the Constitution, the Higgins tribunal, with respect, failed to discharge its duty, in regard to its recommendation that the plaintiff be dismissed from office, to act fairly and to be seen to act fairly.


DETERMINATION OF GROUNDS OF REVIEW


64. I have dismissed the plaintiff’s first principal argument ((a) functus officio and(b) failure to revoke appointment of Poole tribunal), but upheld his second principal argument (natural justice). The formal determination of the grounds of review is shown in the following table.


DETERMINATION OF GROUNDS OF REVIEW

Grounds of review
Determination
1(a)
Dismissed
1(b)
Dismissed
2
Dismissed
3
Dismissed
4(a)
Dismissed
4(b)
Upheld

REMEDIES


65. As one of the grounds of review (4(b), being the plaintiff’s second principal argument) has been upheld, the decision of the Higgins tribunal, to find the plaintiff guilty of misconduct in office and to recommend his dismissal from office, is susceptible to judicial review.


66. It does not necessarily follow that the court will make the declarations and orders sought by the plaintiff. In any judicial review the court’s determination of the review proceeds in two stages:


(a) determining whether the plaintiff has proven one or more grounds of review, and if he has


(b) deciding as a matter of discretion what remedies, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).


67. The remedies sought by the plaintiff are set out in the notice of motion filed on 26 July 2018 under Order 16, Rule 5 of the National Court Rules, subsequent to the granting of leave for judicial review:


  1. An order in the nature of certiorari to bring into Court and quash, in its entirety, the decision of the defendant delivered 9 April 2018.
  2. A permanent stay of the allegations of misconduct in office against the plaintiff as contained in the charges and statement of reasons dated 23 November 2015 and presented to the Leadership Tribunal in proceedings registered as LT 6 of 2015.
  3. The defendant pay the plaintiff’s costs of and incidental to the proceedings.
  4. Such further and other orders or directions this Honourable Court considers appropriate.

68. Those are very significant and substantial orders that the plaintiff is seeking. This is an unusual and unprecedented case and I consider that the parties should be given time to digest this decision and consider its consequences for the appropriate remedies that ought to be granted.


69. The issue of whether the plaintiff is restricted to asking for relief in terms other than he has sought needs to be addressed. And the question of whether the Court is restricted in the exercise of its discretion as to remedies also needs to be ventilated. My preliminary view is that the Court is not so restricted. However, there are other positions that are reasonably open on that issue, and all parties should be given the opportunity to make submissions on it. I will therefore order, in the same vein as the reasoning adopted in this judgment, that there be a separate hearing on the question of remedies.


ORDER


  1. It is declared that there was no error of jurisdiction under the Constitution or the Organic Law on the Duties and Responsibilities of Leadership arising from the alleged errors of jurisdiction referred to in grounds of review 1, 2, 3 and 4(a) in the Order 16, Rule 3(2)(a) statement filed 11 May 2018, in relation to:

(a) the Public Prosecutor’s decision and request to the Chief Justice dated 8 November 2016 for appointment of a leadership tribunal;


(b) the appointment by the acting Chief Justice on 28 September 2017 of the leadership tribunal, being the first defendant in these proceedings (the “Higgins tribunal”); or


(c) the referral on 18 October 2017 by the Public Prosecutor of the matter (being allegations of misconduct in office) regarding the plaintiff, to the Higgins tribunal; or


(d) the decision of the Higgins tribunal of 9 April 2018 to find the plaintiff guilty of misconduct in office and recommend his dismissal from office; or


(e) other decisions or processes made or undertaken by the Public Prosecutor and/or the Chief Justice in relation to the prosecution of the plaintiff’s matter before the Higgins tribunal.


  1. It is declared that there was an error of jurisdiction under ss 28(1)(g), 28(5) and 59 of the Constitution and s 27(4) of the Organic Law on the Duties and Responsibilities of Leadership arising from the alleged errors of jurisdiction referred to in ground of review 4(b) in the Order 16, Rule 3(2)(a) statement filed 11 May 2018, in that part of the decision of the Higgins tribunal that recommended that the plaintiff be dismissed from office and that other penalties be imposed on the plaintiff, arising from the failure of the Higgins tribunal to afford natural justice to the plaintiff, in that it failed to give the plaintiff the opportunity to be heard before it decided to recommend that he be dismissed from office.
  2. There will be a further hearing in these proceedings, to be conducted in accordance with directions of the Court, to hear submissions from the parties as to what further orders, declarations or other remedies, if any, ought to be granted, including whether all or any of the relief sought in the plaintiff’s notice of motion filed 26 July 2018 ought to be granted.
  3. The question of costs of these proceedings will be addressed at the further hearing.

Judgment accordingly.
_________________________________________________________________
Young & Williams: Lawyers for the Plaintiff
Kuman Lawyers: Lawyers for the First Defendant
Geroro Lawyers: Lawyers for the Second Defendant
Counsel to the Commission: Lawyer for the Third Defendant
P Ifina, NJSS Principal Legal Officer: Lawyer for the Fourth Defendant
Solicitor-General: Lawyer for the Fifth Defendant

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