Gore v Lua [2015] PGNC 49; N5981 (18 May 2015)

N5981

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS No. 187 OF 2015

BETWEEN:

THE HONOURABLE DELILAH GORE MP, MINISTER FOR RELIGION YOUTH & COMMUNITY DEVELOPMENT
-Plaintiff-

AND:

RIGO LUA, Chief Ombudsman, PHOEBE SANGETARI, Ombudsman
-First Defendants-

AND:

PONDROS KALUWIN, Public Prosecutor
-Second Defendant-

Waigani: Gavara-Nanu, J
2015: 23 April & 18 May

JUDICIAL REVIEW – Practice and procedure – Application for leave to apply for judicial review - Ombudsman Commission – Power of the Ombudsman Commission to refer a leader to the Public Prosecutor – The quorum for the Ombudsman Commission – Constitution; ss. 10, 11, 217 (1), (7), Schedules 1.5 and 1.12 (1) and Division III.2 (Leadership Code) – Organic Law on the Ombudsman Commission; ss. 3 and 14 – Organic Law on Duties and Responsibilities of Leadership; ss. 28 and 29.

Cases cited:

Avia Aihi v. The State [1981] PNGLR 81
Mauga Logging Co. Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80
Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329
Public Employees Association of Papua New Guinea v. Public Services Commission (1983) SC253
The State v. The Independent Tribunal; Ex Parte Moses Sasakila [1976] PNGLR 491

Counsel

I Malloy & D Bona, for the plaintiff
M. Efi, for the first defendants
B. Kulumbu, for the second defendant and the State

18th May, 2015

1. GAVARA-NANU J: The plaintiff applies for leave to apply for judicial review of the decision of the first defendants (Ombudsman Commission) made on or about 28 January, 2015, to refer her to the second defendant (Public Prosecutor), for prosecution before an appropriate tribunal for an alleged misconduct in Office. The plaintiff's referral to the Public Prosecutor was made pursuant to s. 29 (1) of the Constitution and ss. 17 (d), 20 (4) and 27 (l) (a) of the Organic Law on Duties and Responsibilities of Leadership (Leadership Code).

2. The plaintiff is a Member of Parliament for Sohe Open Electorate and is a Minister in the National Government.

3. Mr. Molloy of counsel for the plaintiff submitted that the plaintiff has satisfied all the requirements for a grant of leave, and should be granted leave. The four basic requirements for a grant of leave are:

(i) the plaintiff has sufficient interest in the matter;

(ii) there is no delay in making the application. The relevant period of delay is four months from the date of the decision sought to be reviewed as stipulated under (Order 16 r 4 (2) of the NCR, because the relief sought is an order for certiorari.

(iii) all the administrative remedies have been fully exhausted by the plaintiff before seeking leave, and

(iv) there is an arguable case or a serious issue to be tried.

4. The first and second requirements are stipulated respectively under Order 16 r 3 (5) and r 4 (2) of the NCR. The third and fourth requirements derive from the common law.

5. No issues arise in regard to the first, second and third requirements, because the defendants do not dispute that the plaintiff has satisfied all the three requirements. In regard to the fourth requirement, Mr. Molloy argued that there is an arguable case, which he said arises from the current membership of the Ombudsman Commission which is comprised of the Chief Ombudsman and one Ombudsman. Mr. Molloy submitted that this is contrary to s. 217 (1) of the Constitution, which provides; "there shall be an Ombudsman Commission consisting of the Chief Ombudsman and two Ombudsmen". It was submitted that because the current membership of the Ombudsman Commission is less than the full membership of three as stated under s.217 (1), the Ombudsman Commission had acted in excess of its jurisdiction when referring the plaintiff to the Public Prosecutor. Mr. Molloy also relied on s. 4 of the Organic Law on the Ombudsman Commission, which states the appointment qualifications for the Chief Ombudsman and the two Ombudsmen. As I understood Mr. Molloy's argument, this section reinforces s, 217 (1) of the Constitution that the Ombudsman Commission has to have three members viz. the Chief Ombudsman and two Ombudsmen to have a quorum to, among other things, properly exercise its power of referral under s. 29 (1) of the Constitution.

6. It was argued that the Ombudsman Commission's power to make a referral under s. 29 (1) of the Constitution is intended to be exercised by an Ombudsman Commission consisting of the Chief Ombudsman and two Ombudsmen as stated under s. 217 (1) of the Constitution and s. 4 of the Organic Law on the Ombudsman Commission. It was submitted that the only statutory power permitting the Ombudsman Commission to have a quorum of less than its full membership of three is in s. 14 (3) of the Organic Law on the Ombudsman Commission, which provides:

(3) For the purposes of conducting an inquiry, under this law, quorum at a meeting of the Commission is two.

7. However, it was submitted that pursuant to the terms of s. 3, the exception provided under s. 14 (3) does not apply to the exercise of power by the Ombudsman Commission in respect of matters relating to Division III.2 (Leadership Code) of the Constitution, which includes the power of the Ombudsman Commission to make referrals under s. 29 (1) of the Constitution. It was argued that the Ombudsman Commission cannot rely on s. 14 (3) of the Organic Law on the Ombudsman Commission as providing it a quorum to refer the plaintiff to the Public Prosecutor, because the quorum provided under this provision is specifically for the Ombudsman Commission meetings when conducting its inquiries.

8. It was therefore submitted that the plaintiff's referral to the Public Prosecutor is defective as the Commission had no quorum and lacked jurisdiction to make the referral.

9. Mr. Molly also noted the terms of Schedule. 1.12 (1) of the Constitution which provides: "Where a Constitutional Law requires or permits an act or thing to be done by more than two persons, a majority of them may do it". This Schedule appears under the heading: Power of majority of more than two persons, and quorums. It was nonetheless submitted that the relevant provisions that the Court has to give effect to are s. 217 (1) of the Constitution and s. 4 of the Organic Law on the Ombudsman Commission.

10. Mr. Molloy argued that the apparent conflict created by the combined effect of s. 217 (1) of the Constitution and s. 4 of the Organic Law on the Ombudsman Commission and other constitutional provisions such as Schedule 1.12 (1) raises a serious issue for trial and leave should be granted.

11. The State took no position in regard to this application. Mr. Efi of counsel for the Ombudsman Commission was granted leave by the Court to appear and make submissions on leave. He submitted that there is no arguable case because s. 217 (1) of the Constitution and s. 4 of the Organic Law on the Ombudsman which the plaintiff relied on are general provisions, which merely state the membership of the Ombudsman Commission and the appointment qualifications of the members of the Ombudsman Commission. It was submitted that the core issue is whether the Ombudsman Commission consisting only of the Chief Ombudsman and one Ombudsman had the quorum to refer the plaintiff to the Public Prosecutor. Mr. Efi submitted that no issue arises as to the quorum of the Ombudsman Commission to refer the plaintiff to the Public Prosecutor because Schedule 1.12 (1) of the Constitution provides the quorum for the Ombudsman Commission.

12. It is fundamentally important to also stress the requirements of Schedule 1.5 (1) and (2) of the Constitution which direct that each Constitutional Law be read as a whole and all provisions of, and all words, expressions and propositions in, a Constitutional Law "shall" be given their fair and liberal meaning. Pursuant to Schedule 1.2 (b) of the Constitution, a Constitutional Law includes an Organic Law.

13. Section: 217(1) is in these terms:

217. THE OMBUDSMAN COMMISSION

(1) There shall be an Ombudsman Commission, consisting of a Chief Ombudsman and two Ombudsmen.

14. Section 4 of the Organic Law on Ombudsman Commission appears under PART II, which is headed - CONSTITUTION, ETC; OF THE COMMISSION. Section 4 is in these terms:

4. Qualifications for appointment.

(1) A person is not eligible for appointment as the Chief Ombudsman unless he is, in the opinion of the Committee, a person of integrity, independence of mind, resolution and high standing in the community.

(2) One of the Ombudsman shall have such professional accountancy qualifications and experience as in the opinion of the Committee, is appropriate.

(3) The other Ombudsman shall have such administrative or legal qualifications and experience as in the opinion of the Committee is appropriate.

15. In my respectful opinion, the above constitutional and organic law provisions have been given a narrow legalistic construction by the plaintiff, thus sacrificing the spirit for the letter of the Constitution. Pursuant to the specific cannons of construction in ss. 9 and 10 of the Constitution, the organic law provisions are required to be read and construed subject to the terms of Schedule 1.5 of the Constitution: SCR No. 2 of 1982; Re Opai Kunangel ]1991] PNGLR 1; SC 231; Public Employees Association of Papua New Guinea v. Public Services Commission (1983) SC253; The State v. The Independent Tribunal; Ex Parte Moses Sasakila [1976] PNGLR 491 and Avia Aihi v. The State [1981] PNGLR 81 at 88. These provisions are in my opinion not intended to be given a restrictive construction and read in isolation from other relevant provisions of the Constitution: Mauga Logging Co.Pty Ltd v. South Pacific Oil Palm Development Pty Ltd (No.1) [1977] PNGLR 80 at 85; Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329 at 344 and Avia Aihi v. The State (supra). Reading and construing the above two provisions on their own by the plaintiff has in my opinion resulted in the two provisions being read out of their proper context: The Independent State of Papua New Guinea v. Downer Construction (PNG) Ltd SC 979.

16. Section 217 (1) and (7) of the Constitution have to be read together, and it is important to note that subsection (7) provides – "An Organic Law shall make further provisions in respect of the appointment, powers, procedures and immunity of the Commission". In my opinion the Organic Law referred to here is the Organic Law on the Ombudsman Commission. This is clear from the terms of the subsection. This construction of subsection (7) is in my opinion affirmed by the fact that s. 217 appears under Division VIII.2, which is titled "The Ombudsman Commission". This Division establishes the Ombudsman Commission and prescribes its purpose, functions and its reports on its functions and workings. Furthermore, the Preamble of the Organic Law on the Ombudsman, states clearly that the Organic Law is to – "implement Division III.2 (Ombudsman Commission) of the Constitution".

17. It is plain that the plaintiff has given a restrictive and narrow construction to s. 217 (1) of the Constitution and ss. 4 and 14 (3) of the Organic Law on the Ombudsman. Section 217 (1) should not just be read together with subsection (7), but also with the rest of Division VIII.2 of the Constitution to give it its proper meaning and context. Sections 4 and 14 (3) of the Organic Law on the Ombudsman Commission also have to be read together with s. 3. Had this approach been adopted by the plaintiff, the terms of s. 3 would have revealed to the plaintiff that whole of the Organic Law on the Ombudsman Commission did not apply to the Leadership Code matters under Division III.2 of the Constitution. This omission by the plaintiff is clearly fatal to the leave application because such an approach is contrary to ss. 9 and 10 and Schedule 1.5 of the Constitution. This approach has resulted in s. 217 (7) of the Constitution and s. 3 of the Organic Law on the Ombudsman Commission not being given proper effect. The effect of the latter provision as I alluded to earlier was briefly discussed by Mr. Molloy in his submission when he argued that the quorum of two Ombudsman as stipulated under s. 14 (3) of the Organic Law on the Ombudsman Commission, is only for the Ombudsman Commission's meetings when conducting its inquiries. Section 3 of the Organic Law on the Ombudsman Commission is significant in its application to the instant case, it is in these terms:

3. Application of this Law.

Except as provided by any other law, this Law does not apply to the powers, functions, duties and responsibilities of the Ombudsman Commission under Division III.2 (leadership code) of the Constitution.

18. I accept Mr. Molloy's submission regarding the effect of s. 3 but as I stated above, Mr. Molloy's submissions in my view covered only part of the effect of s. 3 because the section has a broader effect, in that, it does not only prohibit s. 14 (3), it prohibits the whole Organic Law on the Ombudsman Commission from applying to the exercise of power by the Ombudsman Commission in respect of the Leadership Code matters, including referrals under s. 29 (1) of the Constitution. The reason for this is in my view obvious, s. 28 (1) of the Constitution, which is a provision that falls under Division III.2 provides for an Organic Law to govern, regulate and set out processes for the Ombudsman Commission to follow and give effect to, to attain the objectives of Division III. 2 (Leadership Code) matters, viz. the Organic Law on the Duties and Responsibilities of Leadership (OLDRL). This Organic Law also empowers the Ombudsman Commission to deal with Leadership Code matters, including referrals under s. 29 (1) of the Constitution. In this regard it is to be noted that, unlike the Organic Law on the Ombudsman Commission which expressly provides for the quorum for the Ombudsman Commission's meetings when conducting its inquiries, viz. (s.14 (3)), the OLDRL does not have a similar provision providing for a quorum for the Ombudsman Commission to exercise its powers in respect of the Leadership Code matters, including power to make referrals under s. 29 (1) of the Constitution. This void is filled by Schedule 1.5 (1) of the Constitution which has a general application, the Schedule by its terms provides the quorum for the Ombudsman Commission under its present membership to exercise its powers, including powers in respect of the Leadership Code matters, such as making referrals under s. 29 (1) of the Constitution, as in this case.

19. Consequently I find that in this case, the Ombudsman Commission did have the quorum under Schedule 1.5 (1) of the Constitution and had acted within its jurisdiction to refer the plaintiff to the Public Prosecutor for prosecution before an appropriate tribunal.

20. It follows that there is no arguable case or a serious issue to be tried.

21. Leave for judicial review is therefore refused with costs.

Manase Lawyers: Lawyers for the Plaintiff
Ombudsman Commission Legal Division: Lawyers for the First Defendants