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• SC1998
  PAPUA NEW GUINEA
  [IN THE SUPREME COURT OF JUSTICE]

  SCM NO. 16 OF 2020

  BETWEEN:
  THE INDEPENDENT STATE OF PAPUA NEW GUINEA
  First Appellant

  AND:
  PONDROS KALUWIN in his capacity as PUBLIC PROSECUTOR
  Second Appellant

  AND:
  HONOURABLE BELDEN NORMAN NAMAH, MP
  First Respondent

  AND:
  LEADERSHIP TRIBUNAL COMPRISING THE HON. JUSTICE HIGGINS
  & SENIOR MAGISTRATES PATRICIA TIVESE AND ALAX KALANDI
  Second Respondent

  AND:
  OMBUDSMAN COMMISSION
  Third Respondent

  AND:
  CHIEF JUSTICE
  Fourth Respondent

  Waigani: Manuhu, J.
  2020: 3rd & 10th September

  PRACTICE AND PROCEDURE –Appeal against permanent injunction of
  proceeding of leadership tribunal –Interim stay pending appeal –Whether stay is
  necessary – Burden of proof.

• Page 2 of 10

• Cases Cited

  Ano Pala v Cosmas Bidar (2015) SC 1465,
  Application Pursuant to Constitution, Section 18 (1) Application by Honourable
  Belden Norman Namah MP (2020) SC 1946,
  Ereman Ragi v Joseph Maingu (1994) SC459,
  Hon Belden Norman Namah v Leadership Tribunal & Ors (2020) No 299 of 2018,
  Kondra v Lenalia [2016] SC 1527,
  Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353,
  McHardy v Prosec Security and Communications Ltd [2000] PNGLR 279,
  Namah v. Poole & Ors [2016] N6397,
  Re the Honourable Belden Namah MP, Member for Vanimo-Green (2018) N7194
  (LT),
  SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 1) (2016) SC1508,
  SC Ref No 2 of 2016, Re Namah v Poole Tribunal (No 2) (2016) SC1516),
  SCC (OS) No. 4 of 2020 (IECMS) Application Pursuant to Constitution Section 18
  (1),
  SCC(OS) No 20 of 2020 (IECMS)Application Pursuant to Constitution Section 18
  (1).

  Counsel:

  G. Geroro, for the Applicant/Appellant
  G. Sheppard with P. Tabuchi, for the First Respondent.

  10th September 2020

  1. MANUHU, J.: Before me on 3rd September 2020 was an application for
  interim stay of the orders made by Cannings, J in a judicial review proceeding filed
  by the First Respondent, Hon Belden Norman Namah (“Belden Namah”) where he
  sought a judicial review of the findings and dismissal recommendation of the
  Leadership Tribunal which was appointed to investigate misconduct charges
  against him. This is my ruling on the application.

  Background facts

  2. Belden Namah is currently a Member of Parliament and Open Member for
  Vanimo-Green, an electorate in Sandaun Province. He has been a Member of
  Parliament since 2007. Following an investigation into alleged misconduct in
  office, Belden Namah was referred to the Public Prosecutor for prosecution under

• Page 3 of 10

• the Leadership Code on 13 April 2015. At the request of the Public Prosecutor, a
  Tribunal was appointed by the former Chief Justice, Sir Salamo Injia, which
  commenced its hearing at the end of November 2015.

  3. On 24 November 2015, Belden Namah was suspended on full pay by
  operation of section 28 of the Organic Law on Duties and Responsibilities of
  Leadership (“The Organic Law”) when the Public Prosecutor presented the
  Charges and Statement of Reasons to the Tribunal. On 2 September 2016, Belden
  Namah successfully obtained a permanent injunction against the Tribunal from
  proceeding with the inquiry: See Namah v. Poole & Ors [2016] N6397.

  4. The Court found that:

  “The conduct of the members of the leadership tribunal during the
  course of the litigation did give rise to a reasonable apprehension
  of bias on their part. A tribunal whose jurisdiction is called into
  question by proceedings in the National Could should normally pay
  no active role in the proceedings. Here, the role of the tribunal was
  so aggressive a reasonable person would suspect that the tribunal
  was no longer impartial and that if the plaintiff were required to go
  back before that tribunal, he would not be guaranteed a fair
  hearing. The tribunal had let itself be unduly antagonized by the
  plaintiff’s conduct and in doing so breached the principles of
  natural justice and shed itself of the cloak and aura of impartiality
  it was required to maintain at all times.”

  5. It became necessary for a new tribunal to be appointed but no appointment
  was made until 28 September 2017. The new Tribunal proceeded with the hearing
  of the misconduct allegations against Belden Namah on 18 October 2017 and
  concluded its hearing on 10 November 2018. On 9 April 2018, the Tribunal found
  Belden Namah guilty of misconduct in office and recommended his dismissal from
  office.

  Judicial Review: findings and orders

  6. On 11 May 2018, Belden Namah was granted leave to review the decision of
  the Tribunal. The substantive relief sought in the review application was for
  permanent stay of any further investigation and hearing on allegations of
  misconduct in office. The basis for the challenge was that the Tribunal failed to
  accord him the opportunity to be heard before deciding on penalty.

• Page 4 of 10

• 7. Cannings, J, who presided in the review application found that the Tribunal
  did fail to accord natural justice to Belden Namah in that it failed to give him the
  opportunity to be heard before it decided to recommend his dismissal from office:
  Hon Belden Norman Namah v Leadership Tribunal & Ors (2020) No 299 of 2018.

  8. The substantive orders of Cannings, J are:

  • An order in the nature of certiorari is granted by which the
  decision of the Tribunal of 9 April 2018 is quashed in its entirety,

  • A permanent stay is granted of the allegations of misconduct in
  office contained in the charges and statement of reasons dated
  23rd November 2015,

  • A declaration that Belden Namah’s suspension from duty no
  longer applies is granted and accordingly it is declared that for
  the purposes of the proceedings under the Leadership Code the
  subject of these proceedings, these proceedings are by force of this
  Order resolved with immediate effect and Belden Namah
  suspension from duty under section 28 (1) of the Organic Law is
  lifted with immediate effect.

  9. The Public Prosecutor has appealed against the decision of the review court
  and is seeking an interim stay on the effects of the underlined orders. The
  application is opposed.

  Law on Stay

  10. Section 19 of the Supreme Court Act states:

  “19. STAY OF PROCEEDINGS ON APPEAL.

  “Unless otherwise ordered by the Supreme Court or a Judge, an
  appeal, or an application for leave to appeal, to the Supreme Court
  does not operate as a stay of proceedings.”

  11. Essentially, an appeal to the Supreme Court does not automatically stay the
  decision or order of the National Court. It is accepted that ordinarily, a successful
  litigant is entitled to enjoy the fruit of judgment and is at liberty to enforce the
  judgment pending the determination of any appeal. See McHardy v Prosec

• Page 5 of 10

• Security and Communications Ltd [2000] PNGLR 279.

  12. Secondly, grant of stay is discretionary.

  13. Thirdly, the onus is on an applicant to persuade the court to exercise its
  discretion, which the court will only do if circumstances are shown justifying the
  departure from the ordinary rule (that a successful litigant is entitled to the fruit of
  judgment).The main issue to consider is whether the grant of a stay is necessary:

  • to preserve the subject matter or
  • to preserve the integrity of the appeal, or
  • whether refusal of a stay could create practical difficulties in respect of the
  relief which may be granted on appeal.

  14. The case of McHardy v. Prosec Security and Communications Ltd [2000]
  PNGLR 279 sets out a list of factors to take into account before grant of stay. The
  decision in Kondra v Lenalia [2016] SC 1527 attempts to distinguish McHardy
  case in the context of Public Law and Private Law interests.

  15. Public Law are laws such as Criminal Law, Constitution and Organic Laws.
  They are laws that affect the public at large and the society as a whole while
  private law, such as contract law and tort law, affect individual citizens and
  corporations. See Luke Benjamin Supro v Gerea Aopi [1997] PNGLR 353 and
  Ereman Ragi v Joseph Maingu (1994) SC459. Understanding the distinction is
  useful when one is considering the merits of applications such as this or other
  interim orders pending appeal. See, for instance, the case of Ano Pala v Cosmas
  Bidar (2015) SC 1465.

  16. No doubt, no two cases are the same. Each case will be decided on its own
  merits. This application will be decided on its own merits. The question remains,
  is a grant of stay necessary?

  Submissions by the Public Prosecutor

  17. The Public Prosecutor, through counsel, Mr. Geroro, has submitted that the
  prejudice the appellants and citizens of this country are likely to suffer if an interim
  stay is not granted, including the prejudice to the operation of the Leadership
  Code, substantially outweigh any prejudice to Belden Namah. While Belden
  Namah has been found guilty of misconduct in office in the highest degree, he has
  resumed office as a Member of Parliament and as Opposition Leader.

• Page 6 of 10

• 18. The effect of a stay, if granted, would be that suspension under section 28 of
  the Organic Law would continue to run and prevent him from performing his
  function as Open Member for Vanimo-Green and as Opposition Leader, and
  preserve the integrity of the Leadership Code.

  Consideration of the merits of the application

  19. I begin with the premise that Belden Namah is entitled to enjoy the fruit of
  judgment. Mr. Geroro relied on the case of Kondra v Lenalia (above) to argue that
  Belden Namah should remain under suspension pending appeal but in my view
  that case does not assist the Public Prosecutor.

  20. In that case, Mr. Kondra was found guilty by his tribunal and there was a
  recommendation for his dismissal from office. He filed an application for judicial
  review which was dismissed. Mr. Kondra appealed to the Supreme Court and
  pending appeal, he sought an interim stay. I was a member of the bench which
  refused his application for a stay. Among other things, it held that a stay would be
  against public interest. It was expressed, thus:

  “This case is clearly a public interest case in that it raises
  Constitutional Law issues and issues of good governance. In
  appropriate public interest cases, it would be in the public interest
  that a person found guilty of misconduct in office be prevented from
  occupying a public office pending appeal. Respect for and
  confidence in the integrity of a public office is adversely affected
  when a person found guilty of misconduct in office continues to
  occupy a public office.”

  21. In this case, unlike Mr. Kondra, Belden Namah is a successful litigant in his
  judicial review application which found that the Tribunal breached the principles of
  natural justice. With that advantage, whoever that seeks to deprive him of the
  benefit of judgment bears the burden to demonstrate that it is necessary to grant a
  stay.

  22. The only practical reason advanced by the Public Prosecutor was that since
  the lifting of his suspension, Belden Namah has instituted proceedings questioning
  the validity of the Pandemic Act 2020 (SCC (OS) No. 4 of 2020 (IECMS)
  Application Pursuant to Constitution Section 18 (1)) and the election of the Prime
  Minister (SCC(OS) No 20 of 2020 (IECMS) Application Pursuant to Constitution
  Section 18 (1)). It was submitted that if a stay is not granted:

• Page 7 of 10

• “…it could cause an absurd situation where he is, ultimately, suspended or
  dismissed from office but performed various leadership roles and
  responsibilities, including successfully challenge the constitutional validity
  of legislation, when he was never entitled to do so ab initio.”

  23. Based on the recent Supreme Court decision in Application Pursuant to
  Constitution, Section 18 (1) Application by Honourable Belden Norman Namah
  MP in his capacity as the Leader of the Opposition (2020) SC 1946, I do
  understand and appreciate the concerns raised by the Public Prosecutor. However, I
  am of the view that the Public Prosecutor’s reason does not prejudice his
  prosecution of the appeal and will not affect the Supreme Court’s consideration of
  the merits of the appeal.

  24. The concerns raised by the Public Prosecutor at first glance seemed
  convincing but on closer examination, they are political in nature and therefore,
  with due respect, ill-conceived as far as this application is concerned. A stay, if
  granted, would undoubtedly favour the Prime Minister and the ruling coalition.
  However, the validity of the Pandemic Act, if the hearing proceeds, would be
  determined according to law. The validity of the election of the Prime Minister
  would likewise be considered according to law.

  25. The two proceedings have been widely publicized. The public is interested
  in the outcome of these proceedings. On the basis of the Public Prosecutor’s
  argument, grant of stay would surely interfere with the two proceeding. See
  Application Pursuant to Constitution, Section 18 (1) Application by Honourable
  Belden Norman Namah MP (2020) SC 1946. I am of the view that the question of
  whether Belden Namah, as Opposition Leader, is entitled to initiate those
  proceeding has to be decided in those proceedings – not here.

  26. Secondly, the Public Prosecutor is confident of the prospect of success of the
  appeal to support his application for a stay. In my view, it may not be that easy
  considering the extent of inconvenience and hardship Belden Namah (and his
  electorate) has been subjected to. Justice delayed is justice denied.

  27. The misconduct charges arose from an incident that took place eight years
  ago on 24 May 2012 when Belden Namah attempted to arrest this former Chief
  Justice, Sir Salamo Injia, who at that time was presiding in court. Belden Namah
  was subsequently cited for contempt which was withdrawn in 2013.

  28. The Ombudsman Commission then referred Belden Namah to the Public
  Prosecutor for prosecution under the Leadership Code. Charges and Statement of

• Page 8 of 10

• Reasons were presented to the first Tribunal on 24 November 2015. Belden
  Namah was automatically suspended upon presentation of the Charges and
  Statement of Reasons.

  29. Belden Namah filed proceedings in the Supreme Court questioning the
  constitutionality of the appointment of the Tribunal: SC Ref No 2 of 2016, Re
  Namah v Poole Tribunal (No 1) (2016) SC1508, SC Ref No 2 of 2016, Re Namah v
  Poole Tribunal (No 2) (2016) SC1516). Then he applied for enforcement of his
  human rights regarding the proceedings of the Tribunal.

  30. On 2 September 2016 the National Court granted a permanent injunction
  restraining the Tribunal from further convening in relation to the allegations of
  misconduct in office against Belden Namah (Namah v Poole Tribunal (2016)
  N6397). The permanent injunction also extinguished his suspension. As a free
  man, Belden Namah contested in the 2017 general election and was re-elected as
  member for Vanimo-Green River Open Electorate.

  31. Then the second Tribunal was appointed on 28 September 2017 as requested
  by the Public Prosecutor. Misconduct Charges and Statement of Reasons were
  presented to the Tribunal on18 October 2017 and, upon that presentation, Belden
  Namah was again suspended. On 9 April 2018, the Tribunal found Belden Namah
  guilty of misconduct in office and recommended his dismissal from office: Re the
  Honourable Belden Namah MP, Member for Vanimo-Green (2018) N7194 (LT).

  32. The suspension continued after the Tribunal completed its hearing until 16
  July 2020 when Cannings, J. ruled on the judicial review application. Belden
  Namah’s first suspension was for nine months. The second suspension was for two
  years and nine months. He has been under suspension for a total of three years and
  six months.

  33. It is worth noting that under section 31 of the Organic Law a person who has
  been dismissed for misconduct in office under the Leadership Code is not eligible
  to hold any elective public office for a period of three years from the date of his
  dismissal. Belden Namah’s total sum of suspension has exceeded three years.

  34. It is clear that those charged with the responsibility to administer the
  Leadership Code have a duty to act with due diligence. I endorse the comments
  made by Cannings J in Hon Belden Norman Namah v Leadership Tribunal & Ors
  (2020) OS (JR) No 299 of 2018:

  “It is incumbent on all constitutional office-holders and institutions

• Page 9 of 10

• involved in administration and enforcement of the Leadership Code
  to act quickly and decisively…”

  35. Belden Namah and the people of his electorate have been severely affected
  by his suspension for more than three years and a general delay of over eight years
  so far. These are factors that would ordinarily mitigate his penalty and, if he is sent
  back to face a new tribunal, the tribunal could decide against a recommendation for
  dismissal.

  36. In the circumstances, I am of the view that Belden Namah deserves a
  reprieve, at least temporarily, until such time the Supreme Court decides on the
  appeal, which result could go either way. If he loses the appeal, he would be
  facing some more months, if not years, of suspension before a new tribunal decides
  on penalty.

  37. Thirdly, and I raised this point with counsel, why should I restore Belden
  Namah’s suspension when there is no Leadership Tribunal in existence? The last
  Tribunal has been disbanded. If the appeal is successful, a new tribunal would
  have to be appointed.

  38. Section 28 of the Organic Law, states:

  “(1) Where a matter has been referred to a tribunal under
  Section 27 the person alleged to have committed misconduct in
  office is suspended from duty.
  (2) A suspension under Subsection (1) is on full pay.”

  39. It seems to me that the provision envisaged suspension taking effect while
  the proceeding of a tribunal is in progress. This argument was not specifically
  raised in Application Pursuant to Constitution, Section 18 (1) Application by
  Honourable Belden Norman Namah MP (2020) SC 1946 so until such time it is
  raised, argued, and determined, I am reluctant to exercise my discretion in favour
  of grant of stay when Belden Namah’s Tribunal is already functus officio.

  Conclusion

  40. Ultimately, for the foregoing reasons, I find that the Public Prosecutor has
  failed to demonstrate that grant of stay is necessary. I would dismiss the
  application with costs which, if not agreed, shall be taxed.

  41. I have been advised by counsel that compilation of the appeal book is

• Page 10 of 10

• progressing well and nearly completed. I would encourage the parties to act with
  due diligence and ensure that the appeal is heard without delay. Preferably, this
  appeal is heard and determined before the hearing of the two proceedings.

  Orders accordingly.
  __________________________________________________________________
  Geroro Lawyers: Lawyer for the Applicant
  Young & Williams: Lawyer for the Respondents