Kiniwi v Auali [1998] PGLawRp 758; [1998] PNGLR 162 (7 June 1998)

[1998] PNGLR 162

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

PETER KOP KINIWI

V

VINCENT AUALI; and
THE STATE

WAIGANI: WOODS J
12 May and 9 June 1998

Facts

The first defendant who is the Member of Parliament for the Tambul-Nebilyer Open Electorate refused to release to the plaintiff information relating to monies granted to him for use in the electorate. The plaintiff sought to enforce his right under s 51 of the Constitution to ensure accountability of the first defendant.

Held

1. A citizen has the right to access information relating to monies allocated to his or her Member of Parliament where the monies are allocated to the Member for use in the electorate.
   
2. The freedom of the citizens to access the courts to enforce his or her constitutional right cannot be precluded by the normal operations of constitutional offices and State organs.
   

Counsel

J Kil, for the plaintiff.
S Carter, for the first defendant.
C Makail, for the second defendant.

9 June 1998

WOODS J. The plaintiff has filed an originating summons seeking declarations concerning the accountability of the first defendant as the Member of Parliament for the Tambul-Nebilyer Open Electorate in the National Parliament for monies granted to him and used by him for the Electorate.

The defendants have applied to have the proceedings dismissed as being res judicature and alternatively under Order 12 rule 40 of the National Court Rules as disclosing no reasonable cause of action, or being frivolous or vexatious or being an abuse of the process of the court. So what is the cause of action? It is seeking orders within the right given in the Constitution, s 51 – Right to freedom of information.

(1) Every citizen has the right to reasonable access to official documents. Subject only to the need for such secrecy as is reasonably justifiable in a democratic society in respect of - (here lists certain matters)

(2) Provision shall be made by law to establish procedures by which citizens may obtain ready access to official information.

The plaintiff is claiming as a citizen of the first defendant’s electorate for the access to relevant documentation and acquittals under that constitutional provision as he has tried to obtain details of the relevant acquittals from the Government Department responsible for those matters and also as there is no relevant law made by the Parliament under Subsection 3 for this access to be readily available. I need not go into other evidence already filed in the matter, which relates to specific allocation of such funds by the Member.

The defendants are first of all relying on a judgement given in December 1996 titled Kil v Auali & Ors (Unreported N1492) where the court refused a similar application on the argument that the courts cannot interfere in administrative decisions of the executive. The court then suggested that there were various governmental authorities such as the Ombudsman Commission, Auditor General, Finance Department who have duties to perform in these areas. The court suggested that a party has to go through those systems first as being the first remedies before the plaintiff can come to the court. Therefore, it is submitted that the matter before me now has already been adjudicated upon.

However, the substance of the claim has not been considered, only the principle whether there is a cause of action. Here before me the plaintiff has come as a citizen and claims that he was to be a beneficiary of certain aid or assistance and is calling the Member to account. And he claims that he has that right under s 51 of the Constitution. And I am not sure that an ordinary citizen necessarily has the benefit of the Government institutions like the Auditor-General, the Department of Finance, and the Ombudsman Commission to monitor his interests in the terms of s 51. If there is already sufficient accessibility and performance by such Government instrumentalities why is the public being besieged with calls for new institutions such as an Independent Commission Against Corruption. As a judge I cannot be ignorant of what is seen in the press and otherwise.

It may be that the defendants will be able to acquit fully for what they have done, but that is not the question before me at present, but it is a risk that the applicant is taking. The National Court is not necessarily restricted to the causes of action that are usually found in a common-law system. The National Court has an unlimited jurisdiction and this jurisdiction includes many matters which originate in rights and responsibilities referred to in the Constitution. We cannot assume that because it is now over 20 years since the Constitution came into being, we have set all the different possible approaches to the Court into concrete and there can be nothing new. I am satisfied that the plaintiff may have a legitimate cause of concern and may have a right to pursue this concern in the manner he has and that this may be a matter that comes within s 51 of the Constitution. I cannot say that this process is frivolous or an abuse of the process of the court. Whether he still has a cause of complaint after all the evidence is in is a risk he is taking.

I dismiss the defendant’s motions.

Lawyer for the plaintiff: J Kil.
Lawyer for the first defendant: Pato Lawyers.
Lawyer for the second defendant: Solicitor General