Haiveta v Kaluwin [2020] N8430

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    National Court decision that the public prosecutors decision to seek a new Leadership Tribunal to hear allegations of misconduct against the Plaintiff that were committed some 18-27 years ago and some 13-years after the original tribunal was disbanded, was harsh, oppressive and unfair and breached the plaintiff's Constitutional rights. A permanent injunction was granted preventing the appointment of a new tribunal and the plaintiff's suspension from office was lifted.

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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

  • Page 2 of 29

  • 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

  • Page 3 of 29

  • 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:

  • Page 4 of 29

  • 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.

  • Page 7 of 29

  • 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

  • Page 9 of 29

  • 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

  • Page 10 of 29

  • 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

  • Page 11 of 29

  • 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);

  • Page 12 of 29

  • • 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

  • Page 14 of 29

  • 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

  • Page 15 of 29

  • 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