Unreported National Court Decisions
N1800
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 723 OF 1998
PUBLIC EMPLOYEES ASSOCIATION - PLAINTIFF
V
OMBUDSMAN APPOINTMENTS COMMITTEE - FIRST DEFENDANT
CHAIRMAN OF THE PSC - SECOND DEFENDANT
THE STATE - THIRD DEFENDANT
ILA GENO - FOURTH DEFENDANT
RAHO HITOLO - FIFTH DEFENDANT
Waigani
Woods J
19 February 1999
25 February 1999
PRACTICE AND PROCEDURE - declaratory relief - when available - a constitutional appointments committee - discretion - locus standi - sufficient interest.
Counsel
J Aisa for the Plaintiff
A Iwais for the 1st, 2nd, 3rd Defendants
D Cannings for the 4th & 5th Defendants
25 February 1999
WOODS J: The plaintiff has filed an originating summons seeking three declarations. However following certain preliminary mentions and applications the matter came for hearing on only one application:
A declaration that the appointment of Ila Geno and Raho Hitolo as Ombudsmen on the 14th December 1998 by the Ombudsman Appointments Committee pursuant to Section 217 of the Constitution are illegal null and void and of no effect having failed to comply with the requirement of the quorum as provided for by Section 217 as the Second Defendant had not been present nor an Acting Chairman of PSC was present at the quorum. 
However as a preliminary issue the question has arisen as to the locus standi of the plaintiff to seek such a declaration. 
First of all I must comment on a number of affidavits that have been filed in the proceedings. It is becoming quite common for lawyers when proceeding on affidavit to breach certain of the rules of evidence by including matters in affidavits which are clearly hearsay or inadmissible opinion and even matters of legal submissions. Actually some of the material goes as far as to challenge the personal qualities of the persons considered by the Committee however these are clearly inadmissible challenges to the discretion of the Committee. Much of the material in the affidavits should have been struck out as inadmissible if the court had taken the time to go through all the affidavits. However as it has turned out that the only issue on which the plaintiff is seeking a declaration is the first declaration then certain material which may have been to support the other declarations sought has not been needed and it has not been necessary to consider them. 
On the locus standi the first consideration is in what way is the plaintiff a person who has any interest or right to challenge the considerations of such a Constitutional Committee. The Ombudsman Appointments Committee comes under the Constitution Section 217 (2):
The members of the (Ombudsman) Commission shall be appointed by the Head of State, acting with, and in accordance with, the advice of the Ombudsman Appointments Committee consisting of: 
(a)      the Prime Minister, who shall be the Chairman; and
(b)      the Chief Justice; and
(c)      the Leader of the Opposition; and
(d)      the Chairman of the appropriate Permanent Parliamentary Committee..
(e)      the Chairman of the Public Services Commission.
By Section 190 of the Constitution the members of the Commission are appointed for a term of 5 years and must be citizens who have gained substantial experience in the National Public Service. 
There is no suggestion that appointments are a Public Service matter with reference to the Public Services (Management) Act or the Public Service General Orders. Therefore the appointments cannot be seen as a matter which is an employment matter between members of the Public Service and the State. The appointments are constitutional appointments made at the discretion of the members of what must be seen as one of the highest Constitutional Committees. The discretionary nature of such appointments must also mean that there can be no right in any person to be considered by such a committee and therefore conversely no right in any citizen to complain about not being considered. Whilst it may be envisaged that citizens could write to the committee to put their names forward for consideration there is no requirement for any public advertisement to be made seeking applicants, it always being in the discretion of the committee to consider any citizens whom it considers would be suitable. 
There is nothing in the Constitution or the Organic Law on the Ombudsman Commission which gives the PEA any status or right to any involvement in the considerations of the Appointments Committee. So where does the PEA gets its interest or right to challenge a meeting of the Committee. It appears that the PEA was requested by people claiming to be members of the PEA to make the application. And the only basis for this seems to be that certain individual members of the PEA had themselves applied to the Committee for consideration for the appointments. It seems therefore to be that certain individual persons are claiming private rights in a matter of public law and expecting their industrial union to pursue the matter for them.
So what is the PEA. It appears to be an Association incorporated under the Unincorporated Associations Act as the association of members of the Public Service for the purposes of the Industrial Organisations Act for the regulation of industrial matters between the State as employer and the members as public servants. According to the Articles of the PEA the objects include the following:
(a)      to uphold the rights and improve, protect and foster the best interests of all members.
(b)      To secure redress for any grievances had or injustices suffered by any members in relation to his employment.
(c)      To make claim, enter into negotiations, join councils established under the Industrial Relations Act to obtain equitable rates of pay and better working and living conditions of all members.
(d)      To affiliate, federate with or amalgamate with any registered industrial organisation having objects similar in whole or in part to the objects of the Association.
(e)      To formulate and pursue schemes for the industrial, social, educational, cultural or vocational welfare of all members and /or dependents.
It is clear from the above that the PEA is an association of members of a workforce to work for and achieve and negotiate working conditions for its members in the terms of what is meant by ‘industrial matters’ in the Industrial Organisations Act. So where can it have any interest or right to challenge the actions of the Ombudsman Appointments Committee whose role is nothing to do with the employment, or promotion arrangements or working conditions of members of the public service. The fact that a member of the PEA may have put forward their name for consideration by the committee cannot make the considerations of the Committee an industrial matter. Individual members may wonder how their applications were dealt with or considered but that is a personal matter to them, it is not a matter giving rise to an industrial dispute where their is no right of promotion or employment. 
It is submitted on behalf of the plaintiff that the meetings and considerations of the Committee must be a matter of public concern and the way the committee met and deliberated must be open to scrutiny through the court especially where it appears that an error may have been made in the procedures. Whilst the deliberations of the committee may be a matter of public interest that does not make it a matter that can be open to the challenge of missed-out busybodies. The committee is composed of the most senior public figures in the Nation and the decisions are a matter for their discretion and the Constitution quite deliberately does not bind the committee with procedures which are open to challenge. Any questions as to whether procedures have been followed must be a matter for the members of the committee themselves and if necessary to the appointed members if they feel that their appointment may be questionable. But there cannot be an open fiat for any busybody to challenge the discretions and actions of the committee. 
These proceedings can in no way be seen as an area of activity for which the PEA is registered as an interested or aggrieved person or a party that has a personal stake in the decision of the committee or a party who has been damaged or where there is a potential for damage or who is otherwise authorised by law to interfere. I must find that the PEA has no locus standi to make such an application questioning the good intents of the Ombudsman Appointments Committee. 
I will briefly mention that if there is any question as to the validity of the meeting of the Committee by reason of the quorum requirements I would be satisfied that the meeting was held properly. The quorum for the meetings of the committee is the full membership. At the meeting held on the 14th December there was a full representation. However the Chairman of the PSC was himself being considered for appointment so in accordance with the requirements of the Organic Law on the Duties and Responsibilities of Leadership his interest in the deliberations was noted and with the approval of the other members of the committee he absented himself from the deliberations. This did not affect the quorum requirements. He was present but for the right reasons and in accordance with the requirements of the Organic Law he took no part. The Constitution is meant to be create a workable and sensible structure. So for the purposes of the considerations of that meeting he had to abstain and therefore his membership for the purposes of a quorum was not allowed and this is provided for under Section 15(3)(b) of the Organic Law where a member who discloses his beneficial interest is to be disregarded for the purposes of constituting a quorum. The suggestion that the Chairman of the PSC should have a made an acting appointment for the purposes of the sitting of the Committee is not a practical consideration worth any time, as there was no precondition for such an acting appointment such as a vacancy or a temporary absence from duty. 
I dismiss the proceedings.