SC1946
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCCOS NO 1 OF 2020

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

APPLICATION BY
THE HONOURABLE BELDEN NORMAN NAMAH MP,
IN HIS CAPACITY AS THE LEADER OF THE OPPOSITION
Waigani: Kandakasi DCJ, Mogish J,
Cannings J, Manuhu J, Shepherd J
2020: 13th, 29th May

PRACTICE AND PROCEDURE – objection to competency of proceedings commenced as application under Constitution, s 18(1) – whether applicant suspended from duty at time of making application – Organic Law on the Duties and Responsibilities of Leadership, s28 (suspension) – whether suspension of applicant affects competency of proceedings commenced in capacity as Leader of the Opposition. 
The first, second and fifth interveners objected to the competency of an application by the Leader of the Opposition under s 18(1) of the Constitution, which challenged the constitutionality of appointment of the Prime Minister. The principal ground of objection was that on the date of filing the application, through to the date of hearing the objection to competency, the applicant was suspended from duty under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadership due to allegations against him of misconduct in office, which had been referred to a Leadership Tribunal, and resulted in a decision that he was guilty of misconduct in office and recommended for dismissal from office. The applicant contended that he was neither dismissed nor suspended at the relevant time as the National Court had, in judicial review proceedings he commenced that challenged the decision of the Tribunal, stayed the decision of the Tribunal and the proceedings before it, the effect of which was to stay his suspension.The applicant further argued that if the Court found that he was suspended, it had no effect on the competency of the proceedings as he still had capacity to commence proceedings as Leader of the Opposition, the office which he continued to occupy. 
Held:
(1)	The applicant was suspended from duty under s 28 of the Organic Law on 18 October 2017 when the Public Prosecutor referred a matter regarding him to a second Leadership Tribunal. From that date to 4 July 2018 nothing happened that had the effect of setting aside, dissolving, staying or otherwise neutralising the applicant’s suspension. 

(2)	The order of the National Court of 5 July 2018, which granted a stay of the decision of the Leadership Tribunal, did not stay the proceedings of the Tribunal generally and did not stay the applicant’s suspension. 

(3)	The effect of the suspension was amongst other things to suspend him from duty as Leader of the Opposition, including suspending him from exercising all powers, functions, duties and responsibilities of Leader of the Opposition, which extended to commencing proceedings under s 18(1) of the Constitution, in his capacity as Leader of the Opposition to challenge a decision of the Parliament regarding appointment of a Prime Minister.

(4)	The commencement of proceedings in his capacity as Leader of the Opposition involved exercise of a power and duty, from which the applicant was suspended, with the effect that the applicant had not properly engaged the jurisdiction of the Court. The proceedings were therefore incompetent. 

(5)	The objection to competency was upheld and the proceedings were entirely dismissed. Parties were ordered to bear their own costs as the issue of the applicant’s suspension ought to have been raised by the interveners much earlier.

Cases Cited
The following cases are cited in the judgment:

Application by Namah (2020) SC1932
Application by Namah (2020) SC1934
Namah v Higgins Tribunal (2018) N7351
Namah v Poole Tribunal  (2015) N6121
Namah v Poole Tribunal  (2016) N6397
Pruaitch v Manek  (No 1) (2010) SC1052
Pruaitch v Manek (No 2) (2011) SC1093
Re the Honourable Belden Namah MP, Member for Vanimo-Green (2018) N7194 (LT)
SC Ref No 1 of 2017, Re Constitution, Section 28(5) and the Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645
SC Ref No 2 of 1982, Re Kunangel [1991] PNGLR 1
SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 1) (2016) SC1508
SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 2) (2016) SC1516
Somare v Manek [2011] 1 PNGLR 220
Wingti v Rawali (2010) N3982

OBJECTION

This was an objection to competency of an application under s 18(1) of the Constitution.

Counsel

G J Sheppard & P Tabuchi, for the Applicant
M Nale & A Serowa, for the First Intervener
N Yalo, for the Second Intervener
C Mende, for the Third Intervener
P Kuman, for the Fourth Intervener
R Leo, for the Fifth Intervener

29th May, 2020 

1.      BY THE COURT: This is a ruling on objections to competency of an application to the Supreme Court under s 18(1) of the Constitution. The application was filed by the applicant the Honourable Belden Norman Namah MP in his capacity as the Leader of the Opposition on 30 March 2020, and amended on 13 April 2020.

2.     The applicant challenges the constitutionality of the appointment on 30 May 2019 of the Prime Minister, the Honourable James Marape MP. He contends that the decision of the Parliament of that day to appoint Mr Marape as Prime Minister was made inconsistently with ss 50 (right to vote and stand for public office), 108  (functions of the Speaker and Deputy Speaker),114 (voting in the Parliament) and 142 (the Prime Minister) of the Constitutionand is accordingly invalid and ineffective. 

3.    Five parties have been granted leave under Division 4.7 of the Supreme Court Rules 2012 to intervene in the proceedings:

•	the first intervener, the Prime Minister, the Honourable James Marape MP; and

•	the second intervener, the Deputy Prime Minister, Minister for Justice and Attorney-General, the Honourable Davis Steven MP; and 

•	the third intervener, the Speaker of the National Parliament, the Honourable Job Pomat MP; and

•	the fourth intervener, the Registrar of Political Parties, Dr Alphonse Gelu; and 

•	the fifth intervener, Pangu Pati Inc.

4.     The first, second and fifth interveners have filed separate notices of objection to competency of the application. It is those three objections on which we are ruling. 

5.     The grounds of objection raised by the interveners overlap and some were abandoned at the hearing of the objections, leaving one only to be determined: that on the date of filing the application, through to the date of hearing the objections to competency, the applicant was suspended from duty under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadership (the Organic Law), due to allegations against him of misconduct in office, which had been referred to a Leadership Tribunal and had resulted in a decision that he was guilty of misconduct in office and recommended for dismissal from office. 

6.     The interveners argue that this rendered the proceedings incompetent, as the applicant lacked authority to commence proceedings as Leader of the Opposition. 

7.     The applicant contends that he was not suspended at the relevant time. He argues that when the National Court stayed the Leadership Tribunal proceeding and its decision, in judicial proceedings he commenced challenging the Leadership Tribunal proceedings, it effectively stayed his suspension. The applicant further argued that even if he were suspended, it had no effect on his capacity to commence proceedings as Leader of the Opposition as he still occupied that office.  
8.     Two issues therefore arise:
1.	Was the applicant suspended from duty on the date of filing the application, 30 March 2020?

2.	If yes, does that render the proceedings incompetent? 

1	WAS THE APPLICANT SUSPENDED ON THE DATE OF FILING THE APPLICATION, 30 MARCH 2020? 

9.     The interveners argue that the applicant has been suspended at least since 18 October 2017 when the matter concerning him was referred to a Leadership Tribunal chaired by Justice Higgins. The applicant argues that though he might have been suspended when the Tribunal was dealing with his matter, he was not suspended on the date of filing his application, 30 March 2020, as the Leadership Code proceedings regarding him were stayed by an order of the National Court on 5 July 2018, and that order remains in force. 

Facts 

10.     To assess those arguments we need to make some findings of fact. There have been two leadership tribunals appointed to determine allegations of misconduct in office regarding the applicant, which were originally referred by the Ombudsman Commission to the Public Prosecutor on 13 April 2015.

11.     The first tribunal, chaired by Justice Poole, was appointed by the then Chief Justice Sir Salamo Injia on 9 October 2015. The matter regarding the applicant was referred by the Public Prosecutor to the Poole tribunal on 24 November 2015(after an unsuccessful application to stay its proceedings, Namah v Poole Tribunal (2015) N6121).

12.     In 2016, after the determination of a Supreme Court reference regarding the constitutionality of appointment of the Poole Tribunal (SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 1) (2016) SC1508, SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 2) (2016) SC1516), the applicant successfully applied for enforcement of his human rights regarding the proceedings of the Poole Tribunal. 

13.    On 2 September 2016 the National Court (Cannings J) granted a permanent injunction restraining the Poole Tribunal from further convening in relation to the allegations of misconduct in office against the applicant and from further inquiring into and determining those allegations (Namah v Poole Tribunal  (2016) N6397). 

14.     In the 2017 general election the applicant was re-elected as the member for Vanimo-Green River Open in the National Parliament, a seat he has held since 2007. 

15.     The second tribunal, chaired by Justice Higgins, was appointed by then Acting Chief Justice Sir Gibbs Salika on 28 September 2017. The matter regarding the applicant was referred by the Public Prosecutor to the Higgins Tribunal on18 October 2017. It conducted its proceedings until 10 November 2017, then reserved its decision.

16.     On 9 April 2018 the Higgins Tribunal delivered its decision, finding the applicant guilty of misconduct in office and recommending his dismissal from office (Re the Honourable Belden Namah MP, Member for Vanimo-Green (2018) N7194 (LT). 

17.     It appears that the Higgins Tribunal’s recommendation for dismissal  has not been conveyed to the Governor-General. His Excellency would, it appears, be obliged, being the “appropriate authority” in the case of the applicant, to act in accordance with the recommendation under s 28(2) of the Constitution. However, irrespective of whether the recommendation was conveyed to and/or received by the Governor-General, it is clear that the applicant has not been dismissed from office. He is still the member for Vanimo-Green River Open in the National Parliament, a leadership office under s 26(1)(c) of the Constitution. 

18.     On 11 May 2018 the applicant applied, in proceedings described as OS(JR) No 299 of 2018, for leave for judicial review of the Higgins Tribunal’s decision and of other decisions regarding his matter, including the decision of 28 September 2017 of Acting Chief Justice Salika to appoint that Tribunal (which ought, the applicant contends, to have been preceded by a fresh referral of his matter by the Ombudsman Commission to the Public Prosecutor and a fresh request by the Public Prosecutor to the Chief Justice for appointment of a new tribunal). The leave application was heard, together with an application for a stay of decision of the Higgins Tribunal, by Dingake J,in May-June 2018. 

19.     On 5 July 2018 Dingake J delivered a written judgment, granting leave for judicial review (Namah v Higgins Tribunal (2018) N7351). As to the stay application his Honour stated:

27. With respect to the application of stay of the decision of the defendants, it seems to me that having come to the conclusion that the applicant has established that he has a prima facie arguable case, and that there is a serious issue to be tried, it would be unjust that the decision of the Leadership Tribunal should be allowed to take effect, pending an appeal which may succeed.  In my mind the balance of convenience and the interests of justice require that a stay be granted to preserve the status quo.

28.  Significantly, Order 16, Rule 3(8) of the National Court Rules provides that:

“(8)	Where leave to apply for judicial review is granted, then —

(a)	if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders; and 

(b)	if any other relief is sought, the Court may at any time grant in the proceedings such interim relief as could be granted in an action begun by writ.”

29.   In all the circumstances of this case, I am satisfied that the applicant has satisfied all the requirements mentioned earlier.

20.    The order of Dingake J entered on 5 July 2018 is in the following terms:

1.	Pursuant to Order 16 Rule 3 of the National Court Rules the applicant is granted leave to apply for judicial review of the decision of the Leadership Tribunal made in LT 6 of 2015 delivered on the 9thApril, 2018, in which the Leadership Tribunal found the plaintiff guilty of misconduct in office, and recommended that plaintiff be dismissed from office as Member-elect for the Vanimo-Green River Electorate.

2.	Pursuant to Order 16 Rule 4(8) [sic]an Order that the grant of leave operate as a stay of the decision of the Leadership Tribunal delivered on the 9thApril, 2018.

3.	Costs of and incidental to this Originating Summons be reserved.

4.	The time for entry of this order be abridged to the time of settlement by the Registrar which shall take place forthwith.

21.     That order has not been set aside or stayed. For reasons that are not clear there has been no hearing of the application for judicial review. The applicant has resumed duty as member for Vanimo-Green River Open. He has, as from 18 July 2018, been participating in meetings of the National Parliament. 

22.     On 30 May 2019 the Honourable James Marape was appointed Prime 
Minister. 

23.     On 11 September 2019 the applicant became the Leader of the Opposition, which is recognised as a separate leadership office under s26 (1)(b) of the Constitution. 

24.     On 23 September 2019 the applicant commenced proceedings in the Supreme Court, SCC (OS) No 4 of 2019, under s 18(1) of the Constitution, bearing a close similarity to the present proceedings, in which he challenged the constitutionality of the appointment on 30 May 2019 of Prime Minister Marape. 

25.     The Supreme Court on 23 March 2020 granted the applicant’s request for a declaration that he had standing to make the application in SCC (OS) No 4 of 2019 (Application by Namah (2020) SC1932). 

26.     On 27 March 2020 the Supreme Court upheld an objection to competency of SCC (OS) No 4 of 2019 and those proceedings were dismissed (Application by Namah (2020) SC1934). 

27.     On 30 March 2020 the applicant commenced the present proceedings, which is another application challenging the constitutionality of the appointment on 30 May 2019 of Prime Minister Marape. The question of his standing to make the application has not yet been heard. 

28.     On 13 May 2020 we heard the three objections to competency on which we are now ruling. 

29.     We now address the issues surrounding the applicant’s suspension, based on those facts. When was he suspended? What, if anything, has happened to set aside, dissolve, stay, lift or otherwise neutralise his suspension, or to reinstate his suspension? What is the effect of the order of 5 July 2018? What is the effect of determination of the allegations of misconduct in office?

When was the applicant suspended? 

30.     The relevant law is found in s 28(1) (suspension) of the Organic Law on the Duties and Responsibilities of Leadership, which provides:

(1)	Where a matter has been referred to a tribunal under Section 27 the person alleged to have committed misconduct in office is suspended from duty.

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

31.     Until the decision of the Supreme Court in SC Ref No 1 of 2017, Re Constitution, Section 28(5) and the Organic Law on the Duties and Responsibilities of Leadership, Sections 27(4) and 28(1) (2017) SC1645, there was uncertainty as to the timing of a leader’s suspension from duty, in cases where the Ombudsman Commission had referred a leader for prosecution for alleged misconduct in office. The uncertainty arose from conflicting Supreme Court decisions. 

32.     In Pruaitch v Manek  (No 1) (2010) SC1052 the Court (Kirriwom J, Gavara-Nanu J, Davani J) held that suspension takes effect when the Chief Justice appoints the leadership tribunal. 

33.     In Somare v Manek [2011] 1 PNGLR 220 the Court (Salika DCJ, Kirriwom J, Kandakasi J) opined that a leader was suspended when the Public Prosecutor requested the Chief Justice to appoint a tribunal. 

34.     In Pruaitch v Manek (No 2) (2011) SC1093 the Court (Sakora J, Lenalia J, Manuhu J) held that the leader is suspended when the Public Prosecutor refers the matter to the tribunal. 

35.     In SC Ref No 1 of 2017, it was decided by majority (Injia CJ, Batari J, Cannings J; Kirriwom J and Kandakasi J deciding otherwise) that Pruaitch v Manek (No 2) (2011) SC1093 was correctly decided: suspension of a leader automatically takes effect by operation of s 28 of the Organic Law when the Public Prosecutor refers the matter to the tribunal by formally presenting the allegations of misconduct in office accompanied by the statement of reasons, to the tribunal at a public hearing.
36.     That means in this case, the applicant was suspended on 24 November 2015 when the Public Prosecutor referred the matter concerning him to the Poole Tribunal. 

What, if anything, has happened to neutralise or reinstate the applicant’s suspension? 

37.     Subject to any decision to the contrary that might be made in the judicial review trial OS (JR) No 299 of 2018 following full argument on the point (of which we did not have the benefit), it appears that the order of the National Court of 2 September 2016, which permanently restrained the Poole Tribunal from dealing further with the applicant’s matter, had the effect of dissolving the applicant’s suspension.

38.     However, we find that the applicant was again suspended on 18 October 2017 when the Public Prosecutor referred the matter regarding him to the Higgins Tribunal. 

The order of 5 July 2018

39.     The question then arises: what is the effect of the order of 5 July 2018? Counsel for the applicant, Mr Sheppard, submits that the order is a stay of the proceedings to which the decision that is the subject of the application for judicial review relates, and that there are no allegations of misconduct in office pending against the applicant. Therefore the applicant’s suspension has been stayed by the order of 5 July 2018. 

40.     Order No 2 of 5 July 2018 is in the following terms:

Pursuant to Order 16 Rule 4(8) [sic] an Order that the grant of leave operate as a stay of the decision of the Leadership Tribunal delivered on the 9th April, 2018. 

41.     It will be observed that the order stays the “decision” of the Tribunal, which was to find the applicant guilty and recommend him for dismissal from office. It does not stay the proceedings, including the leader’s automatic suspension under the Leadership Code. It makes no mention of a stay of the applicant’s suspension. Mr Sheppard submitted that it is clear that what was intended was a stay of the Leadership Code proceedings generally as the order was made pursuant to Order 16, Rule 3(8)(a) of the National Court Rules, which provides:

Where leave to apply for judicial review is granted, then … if the relief sought is an order of prohibition or certiorari and the Court so directs, the grant shall operate as a stay of the proceedings to which the application relates until the determination of the application or until the Court otherwise orders
[emphasis added].

42.    Mr Sheppard argued that Order 16, Rule 3(8)(a) applied here as this was a case in which leave to apply for judicial review was granted and the relief sought was in the nature of certiorari (to quash the tribunal’s decision) and the Court had ‘so directed’ that there be a stay of the proceedings to which the application for judicial review relates. Therefore the grant of leave operated as a “stay of proceedings [ie the Leadership Code proceedings, including the suspension of the applicant] to which the application relates”. 

43.    There are a number of problems with that argument. First, the order does not refer to Order 16, Rule 3(8) of the National Court Rules, it refers to Order 16, Rule 4(8), which does not exist, and it does not even mention the National Court Rules. 

44.    Secondly, the order does not say that the Court is staying the proceedings and in particular the automatic suspension under the Leadership Code. It refers only to the decision of the Leadership Tribunal. 

45.     Thirdly, the Court granted the applicant the order that he sought. He sought a stay of the decision of the Leadership Tribunal and that is what he was granted. It is hard to say that the Court intended to grant a more extensive order than the order actually granted, when what was sought, was granted. 

46.    Fourthly, when the terms of the order are interpreted in the context of the reasons for decision of Dingake J (it is proper to consider the reasons given for making an order when interpreting the meaning and effect of an order, for the reasons explained in Wingti v Rawali (2010) N3982) it is apparent that his Honour was focussed on the issue of whether to stay implementation of the Tribunal’s decision. His Honour was concerned that “it would be unjust that the decision of the Leadership Tribunal should be allowed to take effect”. His Honour gave no attention to whether the applicant’s suspension ought to be stayed. 

47.     Fifthly, suspension of a leader is an integral part of the constitutional process by which allegations of misconduct in office are investigated, heard and determined. Staying the suspension of a leader is a significant judicial decision as it involves interruption of an event that occurs automatically by operation of a Constitutional Law. Any order to stay a suspension must be expressed unambiguously in the clearest of terms and be a result of the deliberate judgment of the Court. The order of 5 July 2018 was clear and unambiguous on the issue of suspension. There was no deliberate judgment on the part of the primary Judge that suspension of the applicant should be stayed. It was the decision of the Leadership Tribunal that was stayed.

We find that the order of 5 July 2018 did not stay the applicant’s suspension.

No allegations pending

48.     As to Mr Sheppard’s submission that there are no allegations of misconduct in office pending against the applicant, that is correct, in the sense that the allegations against the applicant have been determined by the Higgins Tribunal. He was found guilty of some, and not guilty of others. But it does not follow that his suspension has been lifted or neutralised. 

49.     In the normal course of events the suspension of a leader against whom allegations of misconduct in office have been the subject of a Leadership Tribunal inquiry would only be lifted if and when:

•	the leader is found not guilty of all allegations; or

•	the leader is the subject of a penalty other than dismissal from office, such as a fine, entry into a recognisance or suspension without pay, imposed under the Leadership Code (Alternative Penalties) Act (Chapter 1A) and the leader complies with the penalty (eg by paying the fine, entering into the recognisance or serving the suspension), and there is no recommendation for dismissal in addition to any other penalty; or 

•	the leader is dismissed from office. 

50.     Unless and until one of those events occurs and the constitutional process is thereby completed, or the National Court or the Supreme Court orders a stay of the leader’s suspension, the leader remains suspended from duty under s 28 of the Organic Law.

51.     In this case none of those events have yet occurred, and neither the National Court nor the Supreme Court have stayed the applicant’s suspension. It follows that the applicant remains suspended.

Conclusion as to suspension 

52.     The applicant was most recently suspended from duty on 18 October 2017 by operation of s 28(1) of the Organic Law. We are not persuaded that anything has happened between then and the date of hearing of the objections to competency, 13 May 2020, to set aside, dissolve, stay, lift or otherwise neutralise the applicant’s suspension. The applicant was under suspension on the date of filing the application, 30 March 2020, and remained under suspension on the date of hearing of the objections to competency.

2	DOES THE APPLICANT’S SUSPENSION RENDER THE PROCEEDINGS INCOMPETENT? 

53.     Mr Sheppard submitted that a finding that the applicant was suspended at the time of commencing these proceedings has no bearing on the competency of the proceedings. The applicant commenced the proceedings in his capacity as Leader of the Opposition. It was confirmed by the Supreme Court in its ruling on competency in the previous proceedings, in Application by Namah (2020) SC1934, that he was duly appointed Leader of the Opposition on 11 September 2019. He continues to occupy that office. There was no misrepresentation on his part in holding himself out as commencing the proceedings in his capacity as Leader of the Opposition as that is what he was, and still is, pending the outcome of the judicial review proceedings in OS (JR) No 299 of 2018. 

54.     It was submitted that the applicant would only be suspended from such duties, functions and actions that are germane to or formally part of the exercise of his functions as the Leader of the Opposition such as participating as a member of various constitutional appointment committees, including:

•	Electoral Commission Appointments Committee, (Organic Law on National and Local-level Government Elections, s 6);
•	KUMUL Appointments Committee (Organic Law on Papua New Guinea's Ownership of Hydrocarbons and Minerals and the Consolidation and Commercialisation of Papua New Guinea's Business Law, s 2);
•	Ombudsman Appointments Committee (Constitution, s 217); 
•	Public Services Commission Appointments Committee (Constitution, s 190); and 
•	Sovereign Wealth Fund Appointments Committee (Organic Law on the Sovereign Wealth Fund, s 22)

55.    It was further contended that the applicant’s suspension from duty cannot extinguish his legal rights as a citizen and as member for Vanimo-Green River Open and as Leader of the Opposition to commence these proceedings. 

Distinction between office and duty

56.    We have no difficulty with the distinction drawn between a leader occupying an office and being suspended from duty. The distinction was recognised by the Supreme Court in SC Ref No 2 of 1982, Re Kunangel [1991] PNGLR 1. That was a Constitution, s 18(2) reference by a leadership tribunal in which the primary question was whether a leader could resign from office and nullify the tribunal’s jurisdiction after it commenced its inquiry into alleged misconduct in office. The answer given, by a 4: 1 majority (Kapi DCJ, Andrew J, Bredmeyer J, Gajewicz J; Kaputin J dissenting), was in the affirmative. The majority decided that a leader suspended from duty under s 28(1) of the Organic Law continues to occupy the leadership office(s) to which the allegations of misconduct in office relate, giving the leader the right to resign from their office; and if that right was exercised, the tribunal would be deprived of jurisdiction. 

57.     Kapi DCJ explained how a leader can continue to hold office, but be suspended from duty, in these terms:

In any case I consider that suspension under s 28 of the Organic Law is limited. A person who is alleged to have committed misconduct in office is "suspended from duty". Mr Roddenby has submitted that the word "duty" is to be read synonymously with the word "office". I do not consider that the word "duty" has been used to mean "office". It is to be noted that both these words are used in s 28. They convey a different meaning. The word "office" has a broader meaning than the word "duty". The word "office" is used to mean the position which is occupied by the office-holder. This includes the "duty" or "duties" to be performed by virtue of the office. The word "duty" is used to mean the functions and the proper actions which the law authorises to be performed in the office: see Canadian Pacific Tobacco Co Ltd v Stapleton (1952) 86 CLR 1 at 6, per Dixon CJ.

Consequently, if an officer is suspended from duty, he is only suspended from the performance of the duties but he is still an occupant or office-holder of the position. This is to be contrasted with suspension of a constitutional office-holder from office under s 9 of the Organic Law on the Guarantee of the Rights and Independence of the Constitutional Office-holders: see also suspension of the Prime Minister from office under s 142(6) of the Constitution. It appears to me that s 28 of the Organic Law simply suspends the leader from performing the duties and functions assigned to him by virtue of his office. Such a suspension also affects the salary because salary is connected to the performance of duties and functions. Such a suspension does not in any way affect the position or office occupied by a Member of the Parliament. Thus the right of a Member to resign from the seat is not affected.

58.     Bredmeyer J took a similar view: that suspension from duty is a narrower construct than suspension from office, but that suspension from duty is still fairly wide:

Under s 28(4) of the Constitution an Organic Law could have provided for suspension from office of a leader pending the investigation of charges against him. Instead, s 28(1) of the Organic Law on the  Duties and Responsibilities of Leadership provides for suspension from duty. Suspension from duty is I think narrower than suspension from office. Nevertheless I consider that suspension from duty is fairly wide. It would debar a leader not only from performing his duty or duties (see Constitution, Sch 1.8) but also from exercising certain powers and rights. For instance, I consider a Minister suspended from duty would be debarred from exercising any powers of appointment, to grant licences and permits and to authorise expenditure. I consider a suspended Minister would be debarred from drawing his salary were it not for s 28(2) of the Organic Law which expressly provides that he is to be suspended on full pay.

59.     We agree that it was determined in Application by Namah (2020) SC1934 that the applicant was duly appointed Leader of the Opposition on 11 September 2019. He held that position on the date of commencement of these proceedings, 30 March 2020. He continues to hold that position. 

What does suspension from duty entail?

60.     However, we have difficulty with the submission that a leader who is suspended under s 28 of the Organic Law is only suspended from formal duties or functions of the leader conferred by a written law. We consider that the notion of “duty” in s 28 of the Organic Law is more extensive than that, and that the dicta of Kapi DCJ and Bredmeyer J in Kunangel provide a guide to giving the word “duty” a broader interpretation than that contended for on behalf of the applicant. We must also have regard to Schedule 1.5 of the Constitution. This requires the Court to do two things. First, read each Constitutional Law “as a whole”. Secondly, give all provisions of, and all words, expressions and propositions in, a Constitutional Law, “their fair and liberal meaning”.

61.     We consider that, reading the Organic Law as a whole and giving the word “duty” and the notion of suspension from duty their fair and liberal meaning, when a leader is suspended from duty, the leader is suspended from performing all the powers, functions, duties and responsibilities – including both those formal constitutional or statutory in character and those that are real, but less formal in character – that are attached to the leader’s office. 

62.    In Application by Namah (2020) SC1932, which was the decision of the Supreme Court that the present applicant had standing in the previous proceedings, SCC (OS) No 4 of 2019, the question of whether he had a sufficient interest in the proceedings was raised, and the Court made the following comments on the roles and functions of the Leader of the Opposition: 

We are satisfied that he has a sufficient interest in the subject matter of the application in two respects. First, he is a citizen and a member of the National Parliament. He therefore has a legitimate political interest and a genuine concern in questioning the constitutionality of appointment of the Prime Minister. 

Secondly, he is presently the Leader of the Opposition. Though the question whether he held that office on the day he filed the application (23 September 2019) and, if he did not, whether that affects the competency of the application (which arises in a notice of objection to competency filed in these proceedings) is yet to be heard and determined, it is uncontentious that the applicant is now the Leader of the Opposition. He has held that office for a continuous period since at least 8 October 2019. It is a function of the Leader of the Opposition to hold the Government of the day to account. That includes being able to test the constitutionality of appointment of the Prime Minister

[emphasis added].

63.     The Court also addressed the roles and functions of the Leader of the Opposition when addressing the issue of whether the applicant was a busybody:

The applicant cannot be labelled a busybody. He is not someone meddling in other people’s affairs that should be of no concern to him. He was at least, at the time of filing the application, a member of the National Parliament. He is also presently the Leader of the Opposition, an office which is specifically recognised in the Constitution (ss 26(1)(b) (application of Division 2), 176(4) (establishment of offices), 190(2)(c) (establishment of the Commission), 216A(2)(c) (the Salaries and Remuneration Commission) and 217(2)(c) (the Ombudsman Commission)).  It is a legitimate role of the Leader of the Opposition to challenge the constitutionality of the appointment of the Prime Minister [emphasis added].

64.    We endorse the approach of the Court taken in that decision: it is a legitimate exercise of the powers, functions, duties and responsibilities of the Leader of the Opposition to challenge the appointment of the Prime Minister by commencing proceedings under s 18(1) of the Constitution. We find that in filing the present application on 30 March 2020 the applicant wasprima facieproperly exercising the powers, functions, duties and responsibilities of the office of Leader of the Opposition.

65.     The problem for the applicant is that on the day of filing the application he was suspended from duty and therefore not lawfully capable of – indeed prohibited from – exercising the powers, functions, duties and responsibilities of the office of Leader of the Opposition. In that sense, the present proceedings are prohibited, by operation of s 28(1) of the Organic Law. 

Extinguishment of rights?

66.     We reject the applicant’s argument that this interpretation of his legal status has the effect of extinguishing his rights to enforce the law. His rights are not extinguished, but suspended in so far as his ability to commence the proceedings in his capacity as Leader of the Opposition, while being suspended from duty, is concerned. 

Jurisdiction and competence

67.     We uphold the interveners’ position that the applicant has not properly or lawfully invoked the jurisdiction of the Supreme Court, while he was suspended from duty. This renders the proceedings incompetent. The consequence is that these proceedings are fatally flawed. The application is incompetent. We uphold the objections to competency. 

CONCLUSION

68.     When he filed the application, the applicant was suspended from duty. He remains suspended from duty. We will make a declaration to that effect. This means that the proceedings are incompetent and must be dismissed.

In the course of hearing this matter it became apparent that the applicant’s judicial review proceedings in the National Court have been attended by inordinate delay. That unsatisfactory state of affairs must be remedied immediately. We will order that those proceedings be called for directions before a Judge of this Court as soon as practicable, to ensure there is no further delay.

70.     As to costs, the interveners should have raised the issue of the applicant’s suspension much earlier. They should have raised it in the previous proceeding, SCC (OS) No 4 of 2019, which was dismissed on competency grounds (but not on the ground of suspension, which was not raised) on 27 March 2020 (Application by Namah (2020) SC1934). In fact it ought to have been raised in the hearing on standing in that proceeding, but wasn’t (Application by Namah (2020) SC1932). In these circumstances, the parties will, subject to any specific costs orders made during the course of the proceedings, bear their own costs.

ORDER

(1)	It is declared that the applicant has been, with effect from 18 October 2017, suspended from duty under s 28(1) of the Organic Law on the Duties and Responsibilities of Leadership and has been so suspended for a continuous period from that date through to the date of hearing the application the subject of these proceedings, and that such suspension will continue until the final determination of the Leadership Code proceedings regarding him or until an order of a competent Court that stays or otherwise sets aside or dissolves such suspension.

(2)	The objections to competency by the first, second and fifth interveners are upheld.

(3)	These proceedings are entirely dismissed.

(4)	The proceedings in the National Court, OS (JR) No 299 of 2018, shall be called for directions before a Judge of this Court, sitting as a Judge of the National Court, as soon as practicable so that those proceedings can be heard and determined with expedition. 

(5)	The parties will, subject to any specific costs orders made during the course of the proceedings, bear their own costs of these proceedings. 

Judgment accordingly.
_____________________________________________________________
Young & Williams Lawyers:	Lawyers for the Applicant 		
Jema Lawyers:  			Lawyers for the First Intervener	
Nemo Yalo Lawyers: 		 Lawyers for the Second Intervener	
Wantok Legal Group:  		Lawyers for the Third Intervener		
Kuman Lawyers:  			Lawyers for the Fourth Intervener	
Robert Leo Lawyers:  		Lawyers for the Fifth Intervener