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• N8430
  PAPUA NEW GUINEA
  [IN THE NATIONAL COURT OF JUSTICE]

  OS (HR) NO 3 OF 2020

  CHRISTOPHER SESEVE HAIVETA, GOVERNOR, GULF PROVINCE
  Plaintiff

  V

  PONDROS KALUWIN, PUBLIC PROSECUTOR
  First Defendant

  HONOURABLE JOB POMAT, SPEAKER, NATIONAL PARLIAMENT
  Second Defendant

  HONOURABLE DAVIS STEVEN, ATTORNEY-GENERAL
  Third Defendant

  OMBUDSMAN COMMISSION
  Fourth Defendant

  THE INDEPENDENT STATE OF PAPUA NEW GUINEA
  Fifth Defendant

  HONOURABLE SIR GIBBS SALIKA, CHIEF JUSTICE
  Sixth Defendant

  Waigani: Cannings J
  2020: 10th, 17th, 27th July

  HUMAN RIGHTS – application for enforcement – Leadership Code
  proceedings – request by Public Prosecutor to Chief Justice to appoint
  leadership tribunal – whether Public Prosecutor’s request infringed human
  rights of leader – lapse of more than 11 years after previous tribunal inquiring
  into same allegations of misconduct was disbanded – whether Public
  Prosecutor’s request was harsh, oppressive etc under Constitution, s 41
  (proscribed acts) – whether appointment of second tribunal would infringe

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• leader’s right to fair hearing within a reasonable time – Constitution, s 37
  (protection of the law) – whether Public Prosecutor’s request entailed breach of
  the principles of natural justice – Constitution, s 59 (principles of natural
  justice).

  REMEDIES – whether necessary or appropriate to grant: declarations as to
  breach of human rights, injunction to restrain appointment of another tribunal,
  permanent stay of leader’s suspension –Constitution, s 57 (enforcement of
  guaranteed rights and freedoms), s 155(4) (the national judicial system).

  The plaintiff, a member of the National Parliament, commenced proceedings by
  originating summons in the National Court, seeking declarations as to the breach
  of his human rights and permanent injunctions regarding the proposed
  appointment in 2020 of a leadership tribunal to inquire into allegations of
  misconduct in office against him, which were the subject of a matter concerning
  him referred to a leadership tribunal in February 2007. The plaintiff claimed that a
  request to appoint a new tribunal to inquire into the same allegations, made by the
  Public Prosecutor to the Chief Justice in May 2018, was harsh and oppressive for
  purposes of s 41 of the Constitution, amounted to infringement of his right under
  ss 37(1), (3) and (11) of the Constitution to a fair hearing within a reasonable time
  and would deprive him of the right to a fair hearing and protection of the
  principles of natural justice under s 59 of the Constitution. The defendants were
  the Public Prosecutor, the Speaker, the Attorney-General, the Ombudsman
  Commission, the State and the Chief Justice. All apart from the Chief Justice
  participated in the proceedings, and opposed all relief sought by the plaintiff.

  Held:

  (1) The Public Prosecutor’s request to the Chief Justice in May 2018 to appoint
  another leadership tribunal was harsh, oppressive and not warranted by the
  requirements of the particular circumstances for purposes of s 41 of the
  Constitution as: (a) the request was made nine months after the plaintiff
  had become a leader again, after a lapse of ten years; (b) the request was
  left un-pursued by the Public Prosecutor for one year, 10 months before the
  Chief Justice indicated his intention in March 2020 to appoint a new
  tribunal; (c) the request could only result in appointment of a new tribunal
  (two members of the previous tribunal having died), in 2020, that would
  have to rehear evidence presented to the previous tribunal 13 years ago; (d)
  in the 13-year period since the previous tribunal disbanded, it is reasonably

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• expected that some evidence would have been lost or misplaced, and some
  of the plaintiff’s witnesses had died; (e) the subject matter of the
  allegations traversed the period from 1993 to 2002, meaning that a tribunal
  appointed in 2020 would be inquiring into alleged misconduct committed
  18 to 27 years ago.

  (2) The Public Prosecutor’s request to the Chief Justice, in May 2018, to
  appoint another leadership tribunal, unpursued for one year, ten months,
  amounted to infringement of the plaintiff’s right under ss 37(1), (3) and
  (11) of the Constitution to the full protection of the law, in particular to a
  fair hearing of allegations of misconduct in office before a leadership
  tribunal within a reasonable time, in that the appointment in 2020 of a new
  tribunal cannot result in a fair hearing or a hearing within a reasonable
  time, due to: (a) the subject matter of the allegations traversed the period
  from 1993 to 2002, meaning that a tribunal appointed in 2020 would be
  inquiring into alleged misconduct committed 18 to 27 years ago; (b) in the
  13-year period since the previous tribunal disbanded, it is reasonably
  expected that some evidence would have been lost or misplaced, and some
  of the plaintiff’s witnesses had died; (c) the passage of time between when
  the Ombudsman Commission referred the plaintiff’s matter to the Public
  Prosecutor (January 2006) and when a new tribunal could, if its
  appointment is not restrained, be appointed (say August 2020), is
  (excluding the period of ten years from August 2007 to August 2017 when
  the plaintiff was not subject to the Leadership Code)was four years, seven
  months.

  (3) Declarations were made that the plaintiff’s human rights under ss 41(1) and
  37(1), (3) and (11) of the Constitution had been and would, if not
  restrained, be further infringed, and a permanent injunction was granted,
  enjoining the appointment of a new tribunal to inquire into the allegations
  referred to the previous tribunal in February 2007, and a permanent stay of
  the plaintiff’s February 2007 suspension was granted.

  Cases Cited

  The following cases are cited in the judgment:

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• Application by Benetius Gehasa (2005) N2817
  Application by Roger Bai Nimbituo & 4 Others (2015) N6516
  Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007)
  N5033
  Bomai Wati v David Gavera (2013) N5363
  Bona v Kidu [1992] PNGLR 316
  Joe Kape Meta v Kumono, Kulunio & The State (2012) N4598
  Joyce Avosa v Rene Motril (2014) N5732
  Leahy v Kaluwin (2014) N5813
  Morobe Provincial Government v John Kameku (2012) SC1164
  David Simon v Michael Koisen (2018) N7075
  Paru v Kotigama & Bmobile-Vodafone (2015) N6089
  Petrus & Gawi v Telikom PNG Ltd (2008) N3373
  Public Employees Association of PNG v Public Services Commission [1983]
  PNGLR 206
  Re Belden Namah (2020) SC1946
  Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership
  Tribunal (2008) SC1011
  Re Ricky Yanepa [1988-89] PNGLR 166
  SC Ref No 1 of 1984, Re Minimum Penalties Legislation [1984] PNGLR 314
  SC Ref No 2 of 1992, Reference by the Public Prosecutor [1992] PNGLR 336
  SC Ref No 1 of 2010, Re Constitutional (Amendment) Law 2008 (2013) SC1302
  SC Ref No 2 of 2016, Re Namah v Poole (2016) SC1516
  SC Ref No 5 of 1980, Re Joseph Auna [1980] PNGLR 500
  The State v Peter Kakam Borarae [1984] PNGLR 99
  The State v Peter Painke [1976] PNGLR 210

  ORIGINATING SUMMONS

  This was an application for enforcement of human rights in which the plaintiff
  sought declarations and permanent injunctions to restrain appointment of a
  leadership tribunal.

  Counsel

  P A Lowing & P Andrew, for the Plaintiff
  G Geroro, for the First Defendant

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• E S Geita & H Wangi, for the Second, Third and Fifth Defendants
  R P Koralyo, for the Fourth Defendant

  27th July, 2020

  1. CANNINGS J: The plaintiff, the Honourable Christopher Seseve Haiveta
  MP, the Member for Gulf Provincial and Governor of Gulf Province, applies by
  originating summons for enforcement of his human rights. He seeks declarations
  and permanent injunctions regarding the proposed appointment in 2020 of a
  leadership tribunal to inquire into allegations of misconduct in office against him,
  which were the subject of a matter concerning him referred by the Public
  Prosecutor to a leadership tribunal in February 2007.

  2. The plaintiff claims that a request made by the Public Prosecutor to the Chief
  Justice in May 2018 to appoint a new tribunal to inquire into the same allegations,
  was and continues increasingly to be:

  • harsh and oppressive for the purposes of s 41 of the
  Constitution;

  • an infringement of his right under ss 37(1), (3) and (11) of the
  Constitution to a fair hearing of such allegations of misconduct in
  office before a leadership tribunal within a reasonable time; and

  • a deprivation of his right to a fair hearing and protection of the
  principles of natural justice under s 59 of the Constitution.

  3. The defendants are:

  • the Public Prosecutor, first defendant;
  • the Speaker of the National Parliament, second defendant;
  • the Attorney-General, third defendant;
  • the Ombudsman Commission, fourth defendant;
  • the State, fifth defendant; and
  • the Chief Justice, sixth defendant.

  4. All defendants except the Chief Justice participated in the proceedings and
  opposed all relief sought by the plaintiff.

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• ISSUES

  5. Four issues arise:

  1. Has the plaintiff proven any actual or imminent infringement
  of human rights under s 41 of the Constitution?

  2. Has the plaintiff proven any actual or imminent infringement
  of human rights under ss 37(1), (3) and (11) of the Constitution?

  3. Has the plaintiff proven any actual or imminent infringement
  of human rights under s 59 of the Constitution?

  4. Should the Court grant any of the remedies (declarations and
  injunctions) sought by the plaintiff?

  FACTS

  1992-2005

  6. The plaintiff was first elected as the member for Gulf Provincial at the 1992
  general election. He was re-elected at the 1997 and 2002 general elections. His
  holding office as a member of the National Parliament made him a leader and
  subject to the Leadership Code under s 26(1)(c) of the Constitution.

  2006

  31 January The Ombudsman Commission referred a matter of alleged
  misconduct in office regarding the plaintiff to the Public
  Prosecutor for prosecution before a leadership tribunal.

  30 August The Public Prosecutor requested the then Chief Justice, Sir Mari
  Kapi, to appoint an appropriate tribunal to inquire into the
  matter of alleged misconduct in office regarding the plaintiff,
  which had been referred to the Public Prosecutor by the
  Ombudsman Commission.

  6 October The Chief Justice appointed the tribunal comprising Justice Timothy
  Hinchliffe as Chairman and senior magistrates Mr Stephen
  Abisai and Mr Mark Pupaka.

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• 2007

  20 February The Public Prosecutor referred the matter to the Hinchliffe tribunal.
  The plaintiff was thereupon suspended from duty under s
  28(1) of the Organic Law on the Duties and Responsibilities of
  Leadership. The matter referred to the tribunal was 28
  allegations of misconduct in office, in four categories:

  (a) failing to furnish annual statements on time and failure
  to cooperate with the Ombudsman Commission during the
  period 1999-2002: allegation Nos 1 to 19;

  (b) misapplication of provincial support grants during the
  period 1999-2001, K1,402,500.00: allegation Nos 20 to 22;

  (c) misapplication of public funds (Kerema-Malalaua road
  upgrade and Yule Island Girls Boarding School) during the
  period 2001-2002, K524,000.00: allegation Nos 23 to 25;

  (d) misapplication of public funds (provincial support
  grants, discretionary component) during the period April-
  May 2002, K250,000.00: allegation Nos 26 to 28.

  Feb-May The Hinchliffe tribunal conducted its proceedings. It completed the
  process of hearing evidence presented by the Public
  Prosecutor, then ruled against the plaintiff on a no-case
  submission and then commenced hearing evidence for the
  plaintiff.

  23 May The last day of the Hinchliffe tribunal. At that point the plaintiff had
  given evidence and one other witness had given evidence for
  him. The plaintiff, through his counsel, Mr R Pato, indicated
  that he intended to call three more witnesses. However, the
  tribunal, after hearing submissions from the parties, decided to
  adjourn its proceedings to 6 August 2007, due to the
  impending general election at which the plaintiff was a
  candidate and the likelihood that it could not complete its
  proceedings until after the polling period.

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• June-July The plaintiff lost his seat at the 2007 general election.

  6 August The Hinchliffe tribunal convened briefly and formally disbanded as
  the plaintiff was no longer subject to the Leadership Code and
  the tribunal had no jurisdiction.

  Jul 07-Jul 17 In this ten-year period the plaintiff was not subject to the
  Leadership Code as he was an unsuccessful candidate at both
  the 2007 and the 2012 general elections and did not hold any
  other leadership position. He was appointed Acting Secretary
  to the National Executive Council in December 2011, but the
  evidence is unclear for how long he occupied that office,
  which appears, in any event, not to be a leadership office
  under s 26(1) of the Constitution.

  2017

  July The plaintiff was re-elected as member for Gulf Provincial at the 2017
  general election. The precise date on which he took office
  under s 104(1) of the Constitution (a member of the
  Parliament takes office on the day immediately following the
  day fixed for the return of the writ for the election in his
  electorate) is not clear from the evidence. I estimate that it was
  in late July.

  2018

  18 May The Public Prosecutor wrote to the then Chief Justice, Sir Salamo
  Injia, requesting the appointment of an appropriate tribunal to
  inquire into the matter of alleged misconduct in office, which
  had been referred by the Ombudsman Commission to the
  Public Prosecutor in January 2006, and referred by the Public
  Prosecutor to the Hinchliffe tribunal in February 2007. The
  Public Prosecutor provided a background of the matter,
  indicating that during the period since May 2007 two
  members of the tribunal, Justice Hinchliffe and Mr Abisai, had
  died. The Public Prosecutor’s request for appointment of a
  tribunal was reported in the media. There was an exchange of
  correspondence between the Public Prosecutor and the
  plaintiff’s lawyers. The plaintiff was notified formally of the

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• Public Prosecutor’s intentions.

  May-December There was no response to the Public Prosecutor’s 18 May
  2018 request. On 31 October 2018 Sir Salamo Injia’s term of
  office ended. Sir Gibbs Salika was appointed Chief Justice in
  November 2018.

  2019

  January-December Nothing happened throughout 2019 regarding the plaintiff’s
  matter. The Public Prosecutor did nothing to follow up his 18
  May 2018 request to Chief Justice Injia to appoint a tribunal.

  2020

  24 March Chief Justice Salika wrote to the Public Prosecutor, indicating that
  his understanding was that the leadership tribunal regarding
  the plaintiff was left part-heard in 2007, that the plaintiff was
  again subject to the Leadership Code, that it was a long
  outstanding matter and that it was his intention to appoint
  another leadership tribunal to complete the matter.

  14 April The Public Prosecutor acknowledged the Chief Justice’s letter of 24
  March 2020 and said he awaited appointment of the tribunal.
  He also said that the plaintiff had been advised of the intention
  to appoint another tribunal. However, there is no evidence
  (and it is not conceded by the plaintiff) that in fact the plaintiff
  was advised of the Chief Justice’s intention.

  5 June The plaintiff commenced the present OS (HR) proceedings

  17 June This Court granted, on application by the plaintiff, a declaration that
  until further order of the Court he is not suspended from duty
  arising out of his referral to the leadership tribunal in February
  2007.

  I now address the four issues identified earlier.

  1:HAS THE PLAINTIFF PROVEN ANY ACTUAL OR IMMINENT
  INFRINGEMENT OF HUMAN RIGHTS UNDER S 41 OF THE

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• CONSTITUTION?

  7. This issue gives rise to three further questions:

  (a) Does the plaintiff have any enforceable rights under s 41?

  (b) Is it lawful for a leader to face prosecution for alleged
  misconduct in office committed in a previous period of office?

  (c) Would it be harsh or oppressive etc for the plaintiff to face
  another leadership tribunal?

  (a) Does the plaintiff have any enforceable rights under s 41?

  8. Section 41 (proscribed acts) states:

  (1) Notwithstanding anything to the contrary in any other provision of
  any law, any act that is done under a valid law but in the particular
  case—

  (a) is harsh or oppressive; or
  (b) is not warranted by, or is disproportionate to, the
  requirements of the particular circumstances or of the
  particular case; or
  (c) is otherwise not, in the particular circumstances, reasonably
  justifiable in a democratic society having a proper regard for
  the rights and dignity of mankind,

  is an unlawful act.

  (2) The burden of showing that Subsection (1)(a), (b) or (c) applies in
  respect of an act is on the party alleging it, and may be discharged
  on the balance of probabilities.

  (3) Nothing in this section affects the operation of any other law under
  which an act may be held to be unlawful or invalid.

  9. Mr Geroro led the defendants’ position on this point by arguing no, s 41 does
  not create any basic rights, and is not enforceable under s 57 of the Constitution,
  which is the provision the plaintiff is relying on to seek relief. Mr Geroro relied

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• on the majority opinion of Kidu CJ and Kapi DCJ, which prevailed over the
  strong dissent of Amet J, in the leading Supreme Court case of Raz v Matane
  [1985] PNGLR 329.

  10. There is certainly support for the majority view in Raz v Matane that s 41
  has a restricted application, in the form of a string of National Court decisions,
  including those of Cory J in Application by Tom Ireeuw [1985] PNGLR 430,
  Hinchliffe J in Tarere v ANZ Bank [1988] PNGLR 201, Brown J in Bank of
  Papua New Guinea v Muteng Basa [1992] PNGLR 271 and Curran v The State
  (1994) N1259, Salika J in Max Umbu v Steamships Ltd (2004) N2738 and
  Hartshorn J in Department of Works v International Construction (PNG) Ltd
  (2008) N5896 and James Geama v OTML Shares In Success Ltd (2011) N4269.

  11. However, as I observed in Agnes Millia Okona-Meten v Leslie B Mamu,
  Public Solicitor (2019) N7668, there is another school of judicial thought on s 41,
  which follows the approach of Sir Arnold Amet in Raz v Matane: s 41 creates
  rights and freedoms and is enforceable under s 57 of the Constitution in the same
  way that are the other provisions of Division III.3 of the Constitution. It is all-
  embracing and has no restricted application.

  12. This broad approach has been taken by Brunton AJ in Re Ricky Yanepa
  [1988-89] PNGLR 166 and Los J in Nowra No 8 Pty Ltd v Kala Swokin [1993]
  PNGLR 498. It is the approach I have taken in Kamit v Aus-PNG Research &
  Resources Impex Ltd (2007) N3112, Petrus & Gawi v Telikom PNG Ltd (2008)
  N3373, Joyce Avosa v Rene Motril (2014) N5732, Paru v Kotigama & Bmobile-
  Vodafone (2015) N6089, David Simon v Michael Koisen (2018) N7075 and in
  Okona-Meten v Mamu.

  13. Mr Geroro did not persuade me that I ought to change my mind on s 41 or
  that there is any special reason it is inapplicable to a case such as this. Nor were
  learned counsel for defendants other than the Public Prosecutor able to show me
  why s 41 cannot apply, at least potentially.

  14. It is very significant that s 41 is in Division III.3 (basic rights) of the
  Constitution, surrounded by provisions that very clearly confer the following
  rights and freedoms on all persons (or in some cases only citizens) in Papua New
  Guinea:

  • right to freedom (s 32);
  • right to life (s 35);

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• • freedom from inhuman treatment (s 36);
  • protection of the law (s 37);
  • liberty of the person (s 42);
  • freedom from forced labour (s 43);
  • freedom from arbitrary search and entry (s 44);
  • freedom of conscience, thought and religion (s 45);
  • freedom of expression (s 46);
  • freedom of assembly and association (s 47);
  • freedom of employment (s 48);
  • right to privacy (s 49);
  • right to vote and stand for public office (s 50);
  • right to freedom of information (s 51);
  • right to freedom of movement (s 52);
  • protection from unjust deprivation of property (s 53);
  • equality of citizens (s 55).

  15. Section 41 proscribes (ie prohibits) and gives protection against seven sorts
  of acts (Morobe Provincial Government v John Kameku (2012) SC1164, Petrus
  and Gawi v Telikom PNG Ltd (2008) N3373; Joe Kape Meta v Kumono, Kulunio
  & The State (2012) N4598). Even if done under a valid law and notwithstanding
  anything to the contrary in any law, an act is unlawful if it is, in the particular
  case:

  1 harsh; or
  2 oppressive; or
  3 not warranted by the requirements of the particular
  circumstances; or
  4 disproportionate to the requirements of the particular
  circumstances; or
  5 not warranted by the requirements of the particular case; or
  6 disproportionate to the requirements of the particular case; or
  7 otherwise not, in the particular circumstances, reasonably
  justifiable in a democratic society having a proper regard for
  the rights and dignity of mankind.

  16. Under s 41(2) the burden of showing that another person has committed an
  act falling within one of the seven categories of acts proscribed by s 41(1) is on
  the party alleging it.

  17. The answer to the question ‘does the plaintiff have any enforceable rights

• Page 13 of 29

• under s 41?’ is yes.

  (b) Is it lawful for a leader to face prosecution for alleged misconduct in
  office committed in a previous period?

  18. Yes. Even if the plaintiff had held a leadership position different in
  character to the one he now occupies, eg if he had been a departmental head for
  the period 1992 to 2007, then became subject to the Leadership Code again, as a
  member of Parliament in 2017, he could still face prosecution during his current
  term of office as a member of Parliament for alleged misconduct committed in his
  term as departmental head. That is the effect of the Supreme Court decisions in
  SC Ref No 5 of 1980, Re Joseph Auna [1980] PNGLR 500 and SC Ref No 2 of
  1992, Reference by the Public Prosecutor [1992] PNGLR 336.

  19. However, it is important to appreciate that s 41 can apply to “any act that is
  done under a valid law” and “notwithstanding anything to the contrary in any
  other provision of any other law”. This means that an act that is done under a
  valid law and in compliance with a valid law, ie an ostensibly lawful act, can be
  rendered unlawful under s 41 if in the particular case it falls within one of the
  seven categories of proscribed acts in s 41(1)(a), (b) or (c).

  20. In the present case, the impugned act of the Public Prosecutor, requesting
  the Chief Justice on 18 May 2018 to appoint a tribunal to inquire into allegations
  of misconduct in office that were partly dealt with by the Hinchliffe tribunal in
  February-May 2007, was done under valid laws: the Constitution and the Organic
  Law on the Duties and Responsibilities of Leadership. There is nothing in those
  laws that prohibits the Public Prosecutor taking that action, 11 years after the
  Hinchliffe tribunal concluded. Nor is there anything in those laws that fixes
  anything like a limitation period found in the Frauds and Limitations Act 1988 for
  commencement of some civil proceedings.

  21. That means that the Public Prosecutor’s request of 18 May 2018 and the
  proposed prosecution of the plaintiff before a leadership tribunal in 2020 for
  misconduct in office are ostensibly lawful acts.

  22. The question then arises whether those ostensibly lawful acts are rendered
  unlawful by their falling into one of the seven categories of proscribed acts in
  s41(1).

  (c) Would it be harsh or oppressive etc for the plaintiff to face another

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• leadership tribunal?

  23. Ms Koralyo, for the Ombudsman Commission, submitted that s 41, though
  it may potentially apply in the present case, has no actual relevance, as s 41,
  according to the reasoning of Kapi DCJ in SC Ref No 1 of 1984, Re Minimum
  Penalties Legislation [1984] PNGLR 314, only applies to discretionary acts. It
  was submitted that the Public Prosecutor, having decided in 2006, to bring
  proceedings regarding the plaintiff, had no discretion not to continue the
  proceedings after the plaintiff resumed leadership status in late July 2017.

  24. I reject that argument. I find that the Public Prosecutor could properly have
  decided in August 2017 to not pursue the matter. He had a discretion to exercise:
  to pursue or to not pursue the matter. He exercised that discretion eventually, by
  deciding to pursue the matter, after a long delay.

  25. Bearing in mind that it is the plaintiff who must show, on the balance of
  probabilities, that the act of the Public Prosecutor in writing to the Chief Justice
  on 18 May 2018 to request the appointment of a leadership tribunal,falls into one
  or more of the seven categories of proscribed acts in s 41(1), I find that the
  plaintiff has discharged that burden; particularly when account is taken of what
  has happened, regarding the allegations of misconduct in office against the
  plaintiff, in the two years since May 2018.

  26. What has happened is next to nothing. The Chief Justice wrote to the Public
  Prosecutor on 24 March 2020 to say that he intended to appoint a tribunal. But no
  tribunal has been appointed. That is the only thing to happen in the last two years
  and two months. There is no evidence that the plaintiff has been put on notice that
  some action is imminent. He is the one who has brought the issue to a head.

  27. The following aspects of this unusual case require such findings:

  (i) The request, of May 2018, was made nine months after the plaintiff
  had become a leader again, in late July 2017, after a lapse of ten years.

  28. The nine-month period was an inordinate delay, in my view. The
  Ombudsman Commission, one of the purposes of establishment of which is,
  under s 218(d) of the Constitution, “to supervise the enforcement of Division III.2
  (leadership code”), should have maintained a watching brief over the plaintiff’s
  leadership status. It should have advised the Public Prosecutor, immediately the
  plaintiff resumed office as a member of Parliament in late July 2017, that he was

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• again subject to the Leadership Code. There is no evidence that that happened.
  Nor is there evidence that it did not happen.

  29. It should have happened, but even if it didn’t, the Public Prosecutor should
  have, without being prompted by the Ombudsman Commission, been alert to the
  need, in August 2017, to make a decision on what to do with the plaintiff’s case.

  30. The Public Prosecutor has two primary functions conferred by s 177(1) of
  the Constitution: (a) “to control the exercise an performance of the prosecution
  function … before the Supreme Court and the National Court …”; and (b) “to
  bring or decline to bring proceedings under Division III.3 (leadership code) for
  misconduct in office”. Prosecution of matters before leadership tribunals is not a
  minor or subsidiary task for the Public Prosecutor. It is one of his core
  constitutional functions.

  31. Leadership tribunal cases should be given a special priority. This one
  wasn’t. The plaintiff was left to resume office as member for Gulf Provincial after
  a gap of ten years and settle himself back into that significant office for nine
  months without anyone, in particular the Public Prosecutor, notifying him of the
  intention to resurrect a matter that had last been before a leadership tribunal 11
  years previously.

  (ii) The request was left unpursued by the Public Prosecutor for one year, 10
  months before the Chief Justice indicated his intention in March 2020 to
  appoint a new tribunal.

  32. This was another inordinate and unsatisfactory delay, in my view. The
  Public Prosecutor made his request to appoint a tribunal to Chief Justice Injia on
  18 May 2018. The request, the evidence shows, was not responded to by the time
  Chief Justice Injia’s term expired, five months later, in October 2018.

  33. Then, no attempt was made by the Public Prosecutor to bring the matter
  to the attention of Sir Gibbs Salika when he took office as Chief Justice in
  November 2018. The Public Prosecutor continued to do nothing to pursue his
  request for a further 16 months before Chief Justice Salika indicated in March
  2020 his intention to appoint a tribunal.

  34. It is no answer to the allegation of continued inaction on the part of the
  Public Prosecutor, in failing to pursue or follow up his request of 18 May 2018, to
  say that the question of appointment of a tribunal is a matter entirely for the Chief

• Page 16 of 29

• Justice. Yes, that is true, to a point. The following principles were settled by the
  Supreme Court (Cannings J, David J, Polume-Kiele J) in SC Ref No 2 of 2016, Re
  Namah v Poole (2016) SC1516:

  • appointment of a leadership tribunal for a member of
  Parliament is an administrative, not a judicial, function, for the
  Chief Justice to perform under s 27(7)(e) of the Organic Law on
  the Duties and Responsibilities of Leadership. It is a function that
  entails duties and discretion;

  • the Chief Justice cannot refuse to appoint the members of a
  tribunal;

  • the Chief Justice has a discretion under Section 27(7)(e) of the
  Organic Law as to who is appointed, provided that the Chairman
  is a Judge and the two other members are senior magistrates (Re
  Public Prosecutor’s Power to Request Chief Justice to appoint a
  Leadership Tribunal (2008) SC1011);

  • the Chief Justice also has a discretion as to the timing of the
  appointments (Bona v Kidu [1992] PNGLR 316).

  35. The fact that appointment by the Chief Justice (or any of the other
  appointing authorities) of leadership tribunals is a constitutional function
  entailing duties and discretions, necessarily means that, if there were an issue
  about alleged refusal on the part of the Chief Justice to appoint a tribunal or
  appointment of allegedly unqualified members or alleged unreasonable delay in
  appointment, the decision (or failure to make a decision) by the Chief Justice
  would be amenable to judicial review or to some other enforcement proceedings
  (eg under ss 22 and 23 of the Constitution).

  36. I am not suggesting that the Public Prosecutor ought to have resorted to
  such action in this case. But what he should clearly have done, after making the
  request to Chief Justice Injia in May 2018 and not having received an
  acknowledgment of it, is at least after a reasonable period – say, one month – sent
  a reminder to the Chief Justice.

  37. When a new Chief Justice took office five months after the 18 May 2018
  request was made, it was incumbent on the Public Prosecutor to bring the matter
  to the attention of the new Chief Justice, especially bearing in mind that by this

• Page 17 of 29

• time – November 2018 – it was 15 months since the plaintiff had again become
  subject to the Leadership Code.

  38. The Public Prosecutor did nothing, however, in November 2018, and
  continued to do nothing for a further 16 months before Chief Justice Salika, of his
  own volition (without being asked by the Public Prosecutor) indicated his
  intention in March 2020, to appoint a tribunal.

  39. I reiterate that it is the Public Prosecutor’s duty to give leadership tribunal
  cases a special priority. This one, and the leader involved, were not accorded that
  priority. The plaintiff, who had been informed in May 2018 of the likelihood of a
  tribunal being appointed to resume an inquiry into the allegations considered by
  the Hinchliffe tribunal, was left again to continue in office as member for Gulf
  Provincial and Governor of that province, without being told anything by anyone
  about the appointment of a tribunal.

  40. In fact, what he should have been told, by the Public Prosecutor and/or the
  Ombudsman Commission, is that he was still under suspension from 20 February
  2007, when his matter was referred to the Hinchliffe tribunal (Re Belden Namah
  (2020) SC1946). No advice of that nature was given to the plaintiff at any time.

  (iii) The request could only result in appointment of a new tribunal (two
  members of the previous tribunal having died), in 2020, that would have to
  rehear evidence presented to the previous tribunal 13 years ago.

  41. Because of the death of Justice Hinchliffe and Senior Magistrate Mr Abisai,
  it is impossible to reconvene the leadership tribunal which in 2007 partly dealt
  with the plaintiff’s matter. It must also be noted that the third member of the
  tribunal, Mr Pupaka, is now the Chief Magistrate. I heard no argument on
  whether a Chief Magistrate can be appointed as a member of a tribunal under
  s27(7)(e) of the Organic Law on the Duties and Responsibilities of Leadership,
  which requires that a tribunal for any member of Parliament other than the Prime
  Minister shall consist of “a Judge (who shall be Chairman) and two senior
  Magistrates appointment by the Chief Justice”. It is a moot point whether the
  present Chief Magistrate could or should be appointed if there is to be a newly
  appointed tribunal.

  42. However, the reality needs to be addressed that if a new tribunal is
  appointed, it will consist of at least two new members, and the imposing task of
  the new tribunal will be to rehear evidence that was first presented to the

• Page 18 of 29

• Hinchliffe tribunal 13 years ago.

  43. In the 13-year period since the previous tribunal disbanded, it is reasonably
  expected that some evidence would have been lost or misplaced. There is
  evidence in these proceedings that some of the plaintiff’s witnesses have died
  since 2007. This will make it intrinsically difficult for the plaintiff to defend the
  allegations.

  (iv) The subject matter of the allegations traverses the period from 1993 to
  2002, meaning that a tribunal appointed in 2020 would be inquiring into
  alleged misconduct committed 18 to 27 years ago.

  44. This fact alone bespeaks the very great practical problems confronting any
  newly appointed tribunal. The most recent allegations are in the final category:
  misapplication of K250,000.00 public funds, derived from the 2002 Provincial
  Support Grants, in the months of April and May 2002. Specifically, it is alleged
  that the plaintiff made “37 unverifiable and/or improper debit transactions
  totalling K163,451.37 by writing out cheques to pay cash”.

  45. It will be virtually impossible for a newly appointed tribunal to properly
  inquire into such allegations, 18 years after the event. And it will be virtually
  impossible for the plaintiff to defend himself.

  46. Those are the most recent allegations. The oldest ones go back to 1993,
  when the plaintiff allegedly began consistently failing to provide his annual
  statements to the Ombudsman Commission in accordance with s 4 of the Organic
  Law on the Duties and Responsibilities of Leadership.

  47. The age of the allegations and the difficult position in which the plaintiff
  will be placed makes fresh proceedings before a newly appointed tribunal look
  like a costly exercise in futility.

  Conclusion as to s 41

  48. I find that the plaintiff has proven that the Public Prosecutor’s request to the
  Chief Justice of 18 May 2018 to appoint another leadership tribunal to inquire
  into the allegations of misconduct in office against the plaintiff, which were the
  subject of a matter concerning him referred by the Public Prosecutor to a
  leadership tribunal on 20 February 2007, was and is:

• Page 19 of 29

• • harsh, and
  • oppressive, and
  • not warranted by the requirements of the particular case; and
  is therefore
  • a proscribed act for the purposes of s 41 of the Constitution.

  2: HAS THE PLAINTIFF PROVEN ANY ACTUAL OR IMMINENT
  INFRINGEMENT OF HUMAN RIGHTS UNDER SS 37(1), (3) AND (11)
  OF THE CONSTITUTION?

  49. It is the plaintiff’s contention that the request made by the Public
  Prosecutor to the Chief Justice in May 2018 to appoint a new tribunal to inquire
  into the same allegations that were partly inquired into by the Hinchliffe tribunal
  in 2007 was, and continues increasingly to be, an infringement of his right under
  ss 37(1), (3) and (11) of the Constitution to a fair hearing within a reasonable
  time.

  50. The defendants do not deny that the plaintiff has a right to the full
  protection of the law, and assure the plaintiff that he will be afforded that
  protection in the event that a new tribunal is appointed to inquire into the
  allegations of misconduct in office. However, the defendants assert that the
  specific right in s 37, as to a fair hearing within a reasonable time, is not that one
  that inures in favour of the plaintiff. Two questions arise:

  (a) Does the plaintiff have a right to a fair hearing within a
  reasonable time?

  (b) Has any such right been infringed?

  (a) Does the plaintiff have a right to a fair hearing within a reasonable time?

  51. Sections 37(1), (3) and (11) of the Constitution are in the following terms:

  (1) Every person has the right to the full protection of the law, and the
  succeeding provisions of this section are intended to ensure that
  that right is fully available, especially to persons in custody or
  charged with offences. …

  (3) A person charged with an offence shall, unless the charge is
  withdrawn, be afforded a fair hearing within a reasonable time, by

• Page 20 of 29

• an independent and impartial court. …

  (11)A determination of the existence or extent of a civil right or
  obligation shall not be made except by an independent and
  impartial court or other authority prescribed by law or agreed
  upon by the parties, and proceedings for such a determination
  shall be fairly heard within a reasonable time. [Emphasis added.]

  52. It was decided by the Supreme Court (Kidu CJ, Pratt J, Bredmeyer J) in
  Public Employees Association of PNG v Public Services Commission [1983]
  PNGLR 206 that the term “offence” in s 37(3) means criminal offences only. It
  does not extend to disciplinary offences. I accept the defendants’ argument that
  misconduct in office under the Leadership Code is not a criminal offence.
  Although a finding of guilt of misconduct in office can lead to a criminal penalty
  in the form of a fine, leadership tribunal proceedings are not criminal
  proceedings. So s 37(3) does not directly apply.

  53. However, I consider that s 37(3) indirectly applies, in that the rights it
  confers, and the obligations it imposes, are channelled into and reflected in
  s37(11). I uphold the submission of Mr Lowing, for the plaintiff, that proceedings
  before a leadership tribunal are properly regarded as “a determination of the
  existence or extent of a civil right or obligation” and, that being the case,
  “proceedings for such a determination” – being leadership tribunal proceedings –
  “shall be fairly heard within a reasonable time”. Thus the plaintiff has the right to
  a fair hearing within a reasonable time.

  54. Though the rights are not expressly conferred under s 37(11), in the same
  way as they are in s 37(3), it can hardly be contemplated that the opposite
  construction of s 37(11) should prevail: that it does not apply to Leadership Code
  matters. That would mean that a person charged with a criminal offence has a
  right to a fair hearing within a reasonable time, but a leader alleged to have
  committed misconduct in office has no such right. I don’t think that that would be
  the fair, large or liberal interpretation of the Constitution that is required. So I
  reject the defendants’ argument that s 37(11) is irrelevant to this case.

  55. A leader facing allegations of misconduct in office has rights to the full
  protection of the law in the same way that persons charged with criminal offences
  have the following rights:

  • a fair hearing;

• Page 21 of 29

• • within a reasonable time;
  • by an independent and impartial court or tribunal (The State v
  Peter Painke [1976] PNGLR 210, The State v Peter Kakam
  Borarae [1984] PNGLR 99, Application by Benetius Gehasa
  (2005) N2817).

  56. In criminal matters, the “reasonable time” requirement imposes two
  obligations on the Public Prosecutor:

  • he must commence the prosecution within a reasonable time after the
  accused is charged; and

  • he must complete the case within a reasonable time after
  commencing it (Leahy v Kaluwin (2014) N5813).

  57. What is a “reasonable time” will vary from case to case. If there is an
  apparently inordinate delay in having a case commenced or completed, it is
  incumbent on the prosecutor to explain the delay and provide good reasons for it
  (Application for Enforcement of Basic Rights by Boisen Buo and Ali Buo (2007)
  N5033).

  58. The “reasonable time” requirement imposes obligations on all persons and
  institutions involved in the criminal justice system to ensure that all accused
  persons have the charges against them heard and determined with all due dispatch
  (Re Ricky Yanepa [1988-89] PNGLR 166, Application for Enforcement of Basic
  Rights by Boisen Buo and Ali Buo (2007) N5033, Bomai Wati v David Gavera
  (2013) N5363, Application by Roger Bai Nimbituo & 4 Others (2015) N6516).

  59. The same principles apply, in my view, to Leadership Code proceedings.
  There is no good reason that leaders, who are subject to additional obligations
  under the Leadership Code over and above persons who are not leaders, ought to
  have a lesser standard of protection of the law than persons who are charged with
  criminal offences.

  60. As for this case, I find that the plaintiff had, and has, an ongoing right to a
  fair hearing of the allegations of misconduct in office within a reasonable time.

  (b) Has the plaintiff’s right to a fair hearing within a reasonable time been
  infringed?

• Page 22 of 29

• 61. The defendants argue strongly no, the plaintiff will still get a fair hearing
  and it will be within a reasonable time, if and when a new tribunal is appointed.
  They point to the fact that the ten-year hiatus in the plaintiff’s leadership status
  meant that nothing could be done regarding the allegations, so the delay involved
  in that period cannot be taken into account.

  62. I agree that the ten years from July 2007 to July 2017 cannot be directly
  counted in ascertaining whether the allegations have been prosecuted within a
  reasonable time.

  63. However, I uphold the submission of Mr Lowing that what has happened,
  or not happened, since late July 2017 is very relevant, and that the effect of the
  delay in dealing with the matter must be considered in the context of the long
  lapse in time since the last tribunal and the “age” of the allegations. I am satisfied
  that the plaintiff has proven that he has been denied a right to a fair hearing within
  a reasonable time, for the following reasons:

  (i) The subject matter of the allegations traversed the period from
  1993 to 2002, meaning that a tribunal appointed in 2020 would be
  inquiring into alleged misconduct committed 18 to 27 years ago.

  (ii) In the 13-year period since the previous tribunal disbanded, it
  is reasonably expected that some evidence would have been lost or
  misplaced, and some of the plaintiff’s witnesses had died.

  (iii) The passage of time between when the Ombudsman
  Commission referred the plaintiff’s matter to the Public Prosecutor
  (January 2006) and when a new tribunal could, if its appointment
  is not restrained, be appointed (say August 2020), is (excluding the
  period of ten years when the plaintiff was not subject to the
  Leadership Code) four years, seven months.

  (iv) It is almost three years since the plaintiff, in late July 2017,
  resumed leadership status. In that period insufficient steps have
  been taken to prosecute the allegations. The plaintiff was subject
  to the Leadership Code for nine months before the Public
  Prosecutor did anything. Even if the Public Prosecutor were
  regarded as having the standard time of one to four months to
  make a decision on whether to bring proceedings (see SC Ref No 1
  of 2010, Re Constitutional (Amendment) Law 2008 (2013)

• Page 23 of 29

• SC1302), he was too slow to act. The matter has been left to drag
  on. The plaintiff has been left in limbo for almost three years.
  These issues are only being brought to a head because of the
  plaintiff’s actions, not the defendants’ actions.

  (v) I repeat the view I expressed in the recent case of Namah v
  Higgins (No 2) (2020) N8415 that it is incumbent on all
  constitutional office-holders and institutions involved in
  administration and enforcement of the Leadership Code to act
  quickly and decisively when there is clear evidence of very serious
  allegations of misconduct in office involving a leader. There
  comes a time when enough is enough, and that time is now.

  All of this amounts to a denial of the full protection of the law.

  Conclusion re s 37

  64. The Public Prosecutor’s request to the Chief Justice, in May 2018, to
  appoint another leadership tribunal, which was then unpursued for one year, ten
  months, amounts to infringement of the plaintiff’s right under ss 37(1), (3) and
  (11) of the Constitution to the full protection of the law, in particular to a fair
  hearing of allegations of misconduct in office before a leadership tribunal within
  a reasonable time.

  3: HAS THE PLAINTIFF PROVEN ANY ACTUAL OR IMMINENT
  INFRINGEMENT OF HUMAN RIGHTS UNDER S 59 OF THE
  CONSTITUTION?

  65. 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.

  66. The plaintiff has failed to articulate this part of his case. I am not satisfied
  that there has been any breach by the defendants of the right of the plaintiff to

• Page 24 of 29

• protection of the principles of natural justice. The plaintiff has not proven any
  actual or imminent infringement of his rights in that regard.

  4: SHOULD THE COURT GRANT ANY OF THE REMEDIES
  (DECLARATIONS AND INJUNCTIONS) SOUGHT BY THE PLAINTIFF?

  67. Mr Geita, for the Attorney-General, the Speaker and the State, submitted
  that, even if the plaintiff succeeds in showing an actual or imminent infringement
  of some of his human rights, he should be refused all relief he is seeking, as all of
  his concerns can be addressed by a freshly constituted leadership tribunal. The
  plaintiff, according to this argument, can rest assured that he will be afforded the
  full protection of the law by the new tribunal, which is obliged to conduct its
  proceedings in accordance with the principles of natural justice. Mr Geita
  submitted that the Court should exercise extreme caution before seriously
  contemplating interrupting the constitutional process. Reliance was placed on
  dicta of the Supreme Court (Manuhu J, Murray J & Pitpit J) in Patrick Pruaitch v
  Chronox Manek (2017) SC1593:

  In relation to proceedings under the Leadership Code, we are also
  of the view that the National Court in its civil jurisdiction should
  not interfere with proceedings of the process under the Leadership
  Code. Proceedings under the Leadership Code are sanctioned by
  an Organic Law – not any ordinary Act of Parliament. For that
  reason alone, an aggrieved person enforcing his private right
  should not be allowed to interfere with the proceeding when it is
  still in progress. In the exercise of discretion, the Courts ought to
  take into account the hierarchy of laws and supremacy of
  Constitutional Laws and refrain from entertaining intervening
  civil proceedings.

  68. I have taken full account of those words of caution, and I am being
  extremely cautious. However, I think that this is such a special and unprecedented
  case, involving substantial delays and inaction since the plaintiff was referred by
  the Ombudsman Commission to the Public Prosecutor 14 and a half years ago, in
  January 2006, that it is time to call a halt to a process that will, if allowed to
  continue, entail a serious breach of human rights and be a costly and time-
  consuming exercise in futility.

  69. I will now consider the specific relief sought by the plaintiff. By the further
  amended originating summons filed on 8 July 2020, the plaintiff seeks five

• Page 25 of 29

• substantive remedies, identified in paragraphs 1 to 5. The relief sought in
  paragraph 6 was abandoned. Paragraphs 7 and 8 are about costs, which I will deal
  with separately. Paragraph 9 seeks any other orders the Court deems fit and
  paragraph 9 is about the abridgment of time.

  70. The further amended originating summons seeks:

  1. A declaration pursuant to section 57(1) and 155(4) of the
  Constitution that the Public Prosecutor Mr Pondros Kaluwin’s
  request to the then Chief Justice, Sir Salamo Injia on 18th May
  2018, to appoint an appropriate tribunal (the Tribunal) or any other
  leadership tribunal, to hear and enquire into allegations of
  misconduct against the plaintiff pursuant to Section 27(7)(e) of the
  Organic Law on Duties and Responsibilities of Leadership (OLDRL)
  and/ or any subsequent similar requests(s) by the Public Prosecutor
  to the sixth defendant, or any person acting in his position to
  appoint a leadership tribunal to hear and enquire into the
  allegations of misconduct charges against the plaintiff is:

  (a) harsh and oppressive, not warranted by the circumstances of the
  case and/ or not reasonably justifiable in a democratic society
  having proper regard for the rights and dignity of the plaintiff
  as a person and/ or a leader, contrary to section 41 of the
  Constitution;

  (b)has taken an inordinate amount of time and accordingly is
  contrary to and in breach of the plaintiff’s human rights
  pursuant to section 37(3) and/ or 37(11) of the Constitution; and

  (c) any such Leadership Tribunal would deprive the plaintiff of his
  rights under section 59 of the Constitution and is accordingly
  unlawful.

  2. A declaration in accordance with sections 57 and 155(4) of the
  Constitution that the continued supervision or suspension of the
  plaintiff of his duties after the commencing of a Leadership
  Tribunal on or around February 2007 and comprising that late
  Justice Timothy Hinchcliffe, the late Stephen Abisai and Mr Mark
  Pupaka to enquire into allegations contained in a reference from the
  Public Prosecutor (the reference), in accordance with section 28(1)

• Page 26 of 29

• of the OLDRL, is a breach of the plaintiff’s human rights under
  sections 37(3) and/ or 37(11), 41 and 59 of the Constitution.

  3. In accordance with section 57(1) and section 155(4) of the
  Constitution and Order 12 Rule 1 of the National Court Rules, a
  permanent injunction enjoying the appointment of the Tribunal, or
  any subsequent leadership tribunal from commencing, resuming or
  conducting any hearing or inquiry into the allegations of
  misconduct against the plaintiff pursuant to section 27 of the
  OLDRL and dealing generally with allegations of misconduct and
  as contained in the reference and dealt with by the Leadership
  Tribunal comprising the lateTimothy Hinchcliffe, the late Stephen
  Abisai and Mr Mark Pupaka on or around February 2007.

  4. In accordance with sections 57 and 155(4) of the Constitution and
  Order 12 Rule 1 of the National Court Rules, a permanent stay of
  and order setting aside the suspension of the plaintiff of his duties as
  the member of the National Parliament for the Gulf Regional seat
  and consequently as the Governor of the Gulf Province, pursuant to
  section 28(1) of the OLDRL, as a consequence of the referral to the
  Leadership Tribunal on 20 February 2007.

  5. Consequent upon terms 1,2,3 and 4 above and pursuant to
  sections 58, 23(2) and 155(4) of the Constitution, a declaration that
  damages are payable to the plaintiff by the defendants.

  6. Further, and/or alternatively, an order pursuant to Order 4 Rule
  35(1) of the National Court Rules that the proceedings continued on
  pleadings, or affidavits filed by parties in the proceedings stand as
  pleadings or order that a statement of claim or other pleadings be
  filed as ordered by the Court.

  7. An order that the costs (on an indemnity basis) of the Plaintiff in
  relation to the aborted leadership tribunal appointed on or about 27
  January 2006, comprising of late Hinchliffe J, Senior Magistrates
  Messrs late Abisai and Mark Pupaka proceedings be paid by the
  fifth defendant.

  8. Costs of these proceedings be paid by the fifth defendant.

• Page 27 of 29

• 9. Any other orders this Honourable Court deems fit.

  10. The time for entry of these orders be abridged to the date of
  settlement by the Registrar which shall take place forthwith.

  71. In determining these claims for relief I am exercising jurisdiction under ss
  57(3), 57(5) and 155(4) of the Constitution.

  72. Sections 57(3) and 57(5) (enforcement of guaranteed rights and freedoms)
  state:

  57(3): A court that has jurisdiction under Subsection (1) may
  make all such orders and declarations as are necessary or
  appropriate for the purposes of this section, and may make an
  order or declaration in relation to a statute at any time after it is
  made (whether or not it is in force). …

  57(5): Relief under this section is not limited to cases of actual or
  imminent infringement of the guaranteed rights and freedoms, but
  may, if the court thinks it proper to do so, be given in cases in
  which there is a reasonable probability of infringement, or in
  which an action that a person reasonably desires to take is
  inhibited by the likelihood of, or a reasonable fear of, an
  infringement.

  73. Section 155(4) (the National Judicial System) states:

  Both the Supreme Court and the National Court have an inherent
  power to make, in such circumstances as seem to them proper,
  orders in the nature of prerogative writs and such other orders as
  are necessary to do justice in the circumstances of a particular
  case.

  74. I will grant the relief sought in paragraphs 1 to 5. It is not necessary to
  make any other substantive order.

  75. The plaintiff will therefore be substantially awarded the relief he sought in
  these proceedings. It is appropriate that costs follow the event, but not appropriate
  that costs be awarded on an indemnity basis. The result was not a lay-down-
  misere. The costs order will be on a party-party basis and apply against the State,

• Page 28 of 29

• which is the appropriate entity to carry liability for costs in a proceeding of this
  nature.

  ORDER

  76. It is ordered, in relation to the further amended originating summons filed 8
  July 2020, that:

  (1) The relief sought in paragraphs 1 to 4 is substantially granted and
  accordingly, pursuant to ss 57(3), 57(5) and 155(4) of the Constitution:
  (a) it is declared that the Public Prosecutor’s request to the Chief Justice
  of 18 May 2018 to appoint another leadership tribunal to inquire into
  the allegations of misconduct in office against the plaintiff, which were
  the subject of a matter concerning him referred by the Public
  Prosecutor to a leadership tribunal on 20 February 2007, was and is
  harsh and oppressive and not warranted by the requirements of the
  particular case and is a proscribed act for purposes of s 41 of the
  Constitution, and did and does amount to infringement of the plaintiff’s
  right under ss 37(1), (3) and (11) of the Constitution to a fair hearing of
  such allegations of misconduct in office before a leadership tribunal
  within a reasonable time;
  (b) it is declared that the continued suspension of the plaintiff in respect
  of the referral of a matter concerning him to a leadership tribunal on 20
  February 2007 would be harsh and oppressive and a proscribed act for
  purposes of s 41 of the Constitution, and would amount to infringement
  of the plaintiff’s right under ss 37(1), (3) and (11) of the Constitution to
  a fair hearing of such allegations of misconduct in office before a
  leadership tribunal within a reasonable time;
  (c) a permanent injunction is granted enjoining the appointment of
  another leadership tribunal to inquire into the same allegations of
  misconduct in office against the plaintiff that were the subject of the
  referral of a matter concerning him to a leadership tribunal on 20
  February 2007;
  (d) the suspension of the plaintiff under s 28(1) of the Organic Law on
  the Duties and Responsibilities of Leadership that took effect in respect
  of the referral of a matter concerning him to a leadership tribunal on 20

• Page 29 of 29

• February 2007, is permanently stayed.
  (2) The relief sought in paragraphs 5, 6 (abandoned) and 7, is refused.

  (3) The relief sought in paragraph 8 is substantially granted and accordingly it
  is ordered that, subject to any costs orders made in the course of the
  proceedings, the fifth defendant shall pay the plaintiff’s costs of the
  proceedings on a party-party basis, which shall, if not agreed, be taxed.

  (4) All interim orders made in the course of the proceedings are dissolved.

  (5) The proceedings are thereby determined and the file is closed.

  Ordered accordingly.
  ________________________________________________________________
  Leahy Lewin Lowing Sullivan Lawyers: Lawyers for the Plaintiff
  Geroro Lawyers: Lawyers for the First Defendant
  Solicitor-General: Lawyers for the Second, Third & Fifth Defendants
  Counsel to the Commission: Lawyer for the Fourth Defendant