N8414(LT)

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

LT 01 of 2018

THE LEADERSHIP TRIBUNAL APPOINTED PURSUANT TO SECTION 27 (2) AND 27 (7) (e) OF THE ORGANIC LAW ON DUTIES AND RESPONSIBILITIES OF LEADERSHIP

AND:
IN THE MATTER OF THE HONOURABLE PATRICK PRUAITCH MP MEMBER FOR AITAPE LUMI OPEN and MEMBER WEST SEPIK PROVINCIAL ASSEMBY ("the Leader"), 
REFERENCE NUMBER LT.N0.1 OF 2018
BEFORE:

HONOURABLE JUSTICE NICHOLAS MIVIRI -Chairman-
HIS WORSHIP MR. MICHAEL APIE'E – Senior-Magistrate-Member-
HERWORSHIP MS. NANCY LIPAI – Senior –Magistrate-Member

Waigani
2020: 13th July
CONSTITUTIONAL LAW – Functions of Tribunal Section 27 OLDRL – Constitution of – Apprehension of Biasness – Impartiality – Constitutional process of – whether disqualification chairman & member of tribunal counsel in previous life of matter – Constitution Section 59 Principles of Natural Justice – Justice must be done & seen to be done – applicable – disqualification appropriate.
LEADERSHIP CODE – Whether tribunal has jurisdiction – Chairman counsel in previous life of matter – Reasonable apprehension of biasness – Integrity of the Leadership Code – disqualification appropriate – Objective application – disqualification of chairman – reconstitution of new tribunal with new chairman.
Cases Cited:

Pruaitch v Manek [2010] PGSC 7; SC1052
Pruaitch v Manek [2011] PGSC 67; SC1093
Pruaitch v Manek [2019] PGSC 123; SC 1884
Boating v The State [1990] PNGLR 342 
Diro v Justice Amet; Mellor; and Samuel [1995] PNGLR 411 
Counsel:
Mr. P. Kaluwin with H Roaloakona, Public Prosecutor Lawyer Assisting the Tribunal. 
Mr. G. Shepperd, with Mr. P. Tabuchi, Assisting the Leader 
					RULING
14th July, 2020
1.	THE TRIBUNAL: This is the ruling on a matter raised by counsel assisting the tribunal at the outset in respect of the Chairman of the tribunal continuing to preside and to hear because of previous role as counsel in related matters leading up.

2.	These are Pruaitch v Manek [2010] PGSC 7; SC1052 (31 May 2010) and Pruaitch v Manek [2011] PGSC 67; SC1093 (31 March 2011) where the chairman was counsel then for the second respondents on both occasions on record in his capacity then as Senior State Prosecutor of the office of the Public Prosecutor.

3.	Counsel assisting the leader takes no issue on the matter raised. But has asked to properly look over the matter and come back after to assist the tribunal. And counsel assisting the tribunal has agreed in principle on the same. Matter has been adjourned overnight on that premise to today for parties to assist address the matter. Hence this ruling emanating.

Brief Facts 

4.	Honourable Patrick Pruaitch was elected Member for Aitape Lumi on the 11th July 2002. In 2007 he was re-elected to the same office. As such he was subject to the Leadership Code. In the course of the referral of the matter up to the present it has seen a number of proceedings. Pertinently these are set out in the recent matter Pruaitch v Manek [2019] PGSC 123; SC 1884 (6 December 2019) at page 3 of that Judgment. We need not detail it here suffice to say it is on record and published. And the present is a culmination of these matters.

5.	 Two of which set out above on record the chairman of this tribunal was involved as counsel. Importantly time has flown but the matter is still the same matter in all respects by law and the facts leading to this present tribunal. One such aspect of particular relevance in law and evidence that was the subject of the proceedings was that of Kanawi Pouru then Managing director of National Forest Authority explanation of the allegations levelled of double dipping funds which are still being pursued here. Time has lapsed but the integrity of the process under the Constitution and the Organic law must be maintained. The Spirit of the Constitution must be maintained at the highest level because that is the pinnacle of all laws in our country and jurisdiction. Section 59 Principles of natural Justice fundamentally reinforces that pillar it gives that very base that Justice must be done and must be seen to be done.

6.	No formal reference has been filed to start the hearing of the matter, but it is important at this juncture to set the scene as it were which in our view is objective. What is raised by learned counsel is on the records of the proceedings and published fact over the history of this matter. And is available on the internet accessed by all who have access to it. The issue posed is, would a fair-minded Papua New Guinea versed with this fact view the proceedings as fair, independent, and impartial, bearing in mind that the Chairman was formally counsel prosecuting in the matter leading. Notably this is 10 years ago in one and 9 years in the other proceedings.

7.	It may be argued that time has withered and smothered what was in that case in the mind of the chairman, but objectively would that be the case. Particularly considering that the Member becomes a member of parliament elected by Constitutional process under section 104. The highest law in the land is the Constitution section 11 adherence to its dictate must be the highest accorded because the consequences entailing a leadership tribunal both by the constitution section 28 (1) (g) (i) (ii) (1A) and the Organic Law section 27 (5) are grave for the leader, if sustained is dismissal from the office and the position. It is therefore no light matter because the prerogative vested in the leader is by his people as their voice in the highest legislature of the land the Parliament. It is of fundamental importance that any process emanating from the Constitution and related laws in this case the Organic Law On The Duties And Responsibilities Of Leadership must be harmonious in their operation to sustain the outcome sought. It would be not so if dependency on time is sought as basis for the chairman to continue here. Convenience of administration including minimizing logistics and expenditure are there but do not override the over arching Constitutional pillars of Justice and the Rule of Law.

8.	It is important that objectively there are no issues raised as to the independence impartiality of the tribunal when it dispenses its duty by the Constitution and the Organic Law. Canvased at another level if the prosecutrix is sitting in court with the Police Informant and the Presiding Judge’s wife objectively Justice is not done because Justice must NOT only be done BUT must be seen to be done, Boating v The State [1990] PNGLR 342 (7 August 1990).  In our view that is applicable here given that application which has carried into a similar stance taken in Diro v Justice Amet; Mellor; and Samuel [1991] PGLawRp 534; [1995] PNGLR 411 (26 August 1991). 

9.	Like that case the present tribunal made its way from history set out above published on record undisputed. And the association of the chairman as prosecuting counsel in SC1052 (31 May 2010) and SC1093 (31 March 2011) supra makes it all the more probable that a reasonable and fair-minded person aware of all the contents in the previous cases prosecuted by the chairman as Prosecuting counsel there would be reasonable suspicion that a fair hearing for the Member Honourable Patrick Pruaitch was not possible. This is not the same as saying the chairman is biased but the objectivity of the matter invokes that disqualification is appropriate to uphold the integrity of the process by the Constitution. 

10.	Accordingly, that will befall the chairman from further sitting on this tribunal. The chief Justice will reconstitute a new tribunal with a new chairman to replace the current chairman now disqualified. The matter will reconvene as and when that is effected and parties are informed of the same.

DATED            THIS            14th             DAY   OF   JULY                 2020

...........................
Ms. N. Lipai
Member	................................ 
Justice N. Miviri
Chairman	....................................
Mr. M. Apie'e
Member
	
________________________________________________________________
Public Prosecutor			: Lawyer Assisting Tribunal		
Young & William Lawyers	: Lawyer Assisting Member