Maliso v Marape [2020] PGNC 281; N8620 (6 November 2020)

N8620

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 33 OF 2020 (IECMS)

HOWARD MALISO
Plaintiff

AND
HONOURABLE JAMES MARAPE, MP, Prime Minister of Papua New Guinea, CHIEF JUSTICE GIBBS SALIKA, HONOURABLE BELDEN NAMAH MP Leader of Opposition, HONOURABLE PHILIP UNDIALU MP Chairman Permanent Parliamentary Committee on Appointment & MR APEO SIONE Chairman Public Service Commission, Comprising the Ombudsman Appointing Committee.
First Defendant

AND
APPOINTED CHIEF OMBUDSMAN RICHARD PAGEN
Second Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kandakasi DCJ
2020: 24^th August
2020: 06^th November

JUDICIAL REVIEW – Application for leave for review of Ombudsman Appointing Committee (OAC) decision – highest constitutional body comprising of the legislature, the executive and judicial arms of government as well as the opposition, and the public service - whether decision reviewable – no prescription of process and procedure – unfettered discretion in - decision not reviewable - locus standi – applicant has no standing – whether arguable case presented – copy of decision and reasons for decision not in evidence - no arguable case presented – application declined – Constitution ss. 217(2), 169(2) and 142 (2) - Organic Law on the Ombudsman Commission ss. 4 – 8.

EVIDENCE – Evidence by affidavit – Affidavits to contain facts only and not opinions or arguments or a statement of the law - Copies of a statement, District Court complaint and letters written to and by persons other than deponent annexed to an affidavit – Communication to the OAC – Need for confidentiality to be attached to communication to OAC – such communication not to be disclosed to persons other than the members of the OAC – copies of statement, District Court complaint and letters hearsay and possible breach of confidentiality – Offending parts of affidavit and copies of statement, complaint and letters struct out from affidavit.

Facts

The Plaintiff, a former employee of the Ombudsman Commission applied to the Ombudsman Appointments Committee (OAC) to be appointed as Chief Ombudsman. The OAC appointed the Second Defendant. Aggrieved by that decision, the Plaintiff filed for leave for judicial review of the decision. In his affidavit in support he annexed copies of a statement made by someone else, a District Court complaint by someone else, letters written to the OAC by persons other than the Plaintiff, making certain allegations against the Second Defendant. However, he did not explain how he was able to access the copies of the statement, complaint and letters. The State objected to these documents being admitted into evidence on the basis that they were hearsay. The State also argued that, the copies of the letters were privileged or confidential communication to the OAC and as such, they could not be admitted into evidence. The Plaintiff argued in response that, he was entitled to adduce the documents into evidence. He also argued that, he had the standing to bring his application. He further argued that, the OAC breach s. 4 (2) of the Organic Law on the Ombudsman Commission and that the OAC’s decision was unreasonable in the Wednesbury sense. The State responded by arguing, the Plaintiff lacks the necessary standing to bring the application and, in any case, he has not made out the basis for his application in the Wednesbury sense or at all.

Held:

1. Paragraphs in the affidavit that contained arguments, submissions on the law or opinion or speculation and the copies of the statement, complaint and letters written to the OAC were inadmissible and were struck out for offending the law on what should be in an affidavit, the documentary evidence being hearsay evidence and also that the copies of the letters were privileged or confidential communication to the OAC.
   
2. The OAC as one of the highest Constitutional Committees comprising of all three arms of government as well as the opposition and the public service has an unfettered discretion to appoint the Chief Ombudsman and the two other Ombudsmen. As such, its decisions are not open to judicial review.
   
3. The Plaintiff has no standing and has failed on the merits to make out an arguable case to warrant judicial review for which leave should be granted.
   
4. For these reasons, the application for leave for judicial review was refused with costs ordered against the Plaintiff.
   

Cases Cited:
Papua New Guinea Cases

Leto Darius v. The Commissioner of Police (2001) N2046.
William Duma v. Yehiura Hriehwazi (2004) N2526.
Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding (PNG) Ltd (2019) SC1788.
GR Logging Ltd v. David Dotaona (2018) SC1690.
John Wanis Wek v. Sobol Trading Ltd (2016) SC1535.
Delta Kikori Ltd v. ANDQ Trading Ltd (2017) N6707.
Public Employees Association v. Ombudsman Appointments Committee & Ors (1999) N1800.
Aloysius Eviaisa v. Sir Mekere Morauta & Ors (2001) N2144.
Sir Mekere Morauta v. Minister for Finance & Ors (2002) SC685.
Jim Kas v. Sevua (2000) N2010.
Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1.
NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70.
Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216.
National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139.
Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959.
Aquila Sampson v. NEC (2019) SC1880
David Kabomyap Allolim v Biul Kirokim (2018) SC1735.
Lawrence Sasau v. PNG Harbours Board (2006) N3253.
Kekedo v. Burns Philip [1988-89] PNGLR 122.
Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417.
The State v. Toka Enterprises Limited (2018) SC1746.

Overseas Cases

Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1981] 2 WLR 722.
Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176.
Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283.

Other Sources Cited:

Cross on Evidence, 2^nd Australian edition.
Constitutional Planning Committee Final Report 1974.

Counsel:

Mr. H. Maliso, Plaintiff in Person

Ms. I. Mugigia, for the Third Defendant

06^th November, 2020

1. KANDAKASI DCJ: This is an application by Mr. Howard Maliso (Maliso) for leave for judicial review of a decision by the Ombudsman Appointing Committee (OAC) which appointed the Second Respondent, Mr. Richard Pagen (Pagen) to the position of Chief Ombudsman.

Preliminary Issue

2. I heard and reserved a decision on the application to a later date. Before proceeding to give further consideration and coming to a decision, I disclosed to the parties something I inadvertently omitted to do before and at the hearing. That concerned my sitting in the Judicial and Legal Service Commission (JLSC) together with the Chief Justice and the Chief Ombudsman, all of us by virtue of the official position each of us hold. By virtue of that, we attend JLSC meetings from time to time. Both Maliso and the State took no issue with my continuing to preside, consider their submissions and deliver a decision on the application. Accordingly, I decided to proceed to consider and arrive at this my decision in the case.

Parties claims or arguments

3. Appearing and representing himself, Maliso who is an experienced practicing lawyer argues, he has the locus standi and has filed his application within time but not able to produce evidence of the decision and the reasons for it. He also argues that, the OAC failed to take into account relevant considerations and breached the provisions of s4 (1) of the Organic Law on the Ombudsman Commission (OLOC). Further, he claims, the decision was unreasonable in the Wednesbury sense.

4. Through learned counsel Ms Mugugia, the State in response, objects to the admissibility of certain parts of Maliso’s affidavit evidence and a copy of a statement, a District Court complaint and copies of number of letters all written by persons other than Maliso to the OAC or members of the OAC. He is not one of the persons who was copied in on the statement, complaint and the letters. The objection is taken on the basis that, these parts of the affidavit breaches the rules on what should be in an affidavit, namely facts only and the documentary evidence being hearsay and the copies of the letter to the OAC being protected by confidential or privileged communication. The State also submits, the decision of the OAC is not open for judicial review and Maliso lacks the necessary standing to bring this application. On the merits, the State submits Maliso has failed to establish an arguable case for a grant of his application in that he has failed to:

(a) produce evidence of the decision appointing Pagen with the reasons for that;

(b) clearly set out the decision-making process under the relevant law be it the Constitution or the OLOC and demonstrate any breach of that;

(c) plead with particulars, proper grounds for judicial review; and

(d) failed to establish an arguable case.

5. Additionally, the State argues, Maliso’s application is effectively questioning the correctness of the decision as opposed to the procedure adopted to arrive at the decision.

Issues for determination

6. The parties’ claims or arguments presents a number of issues for the Court to consider and determine. The main ones are:

(1) Are parts of Maliso’s affidavit and its annexures inadmissible?

(2) Is the decision of the OAC open for judicial review?

(3) Does Maliso have the necessary standing to bring this application?

(4) On the merits, has Maliso established an arguable case for judicial review for which, leave should be granted?

General principles on judicial review

7. Before dealing with any of these issues, I first remind myself of the principles governing applications for leave for judicial review which are well settled. In my decision in Leto Darius v. The Commissioner of Police (2001) N2046, after considering the relevant case authorities on point at the time and the relevant provisions of the Court Rules, I held that:

“According to these rules and the case law on it to date, the requirements amongst others that must be met by an applicant for leave for judicial review, can be summarised as follows:

1. He has the locus standi, that is he has sufficient interest in the matter or has a right which is being affected by way of an injury or damage by the decision sought to be reviewed;
2. The decision sought to be reviewed is that of a public body or authority;
3. The applicant has an arguable case on the merits;
4. All other available remedies have been exhausted; and
5. The application is being made promptly without undue delay.”
   

8. A number of National and Supreme Court decisions have adopted and applied this statement of law. That includes the Supreme Court decisions in GR Logging Ltd v. David Dotaona (2018) SC1690, per Cannings, Collier & Dingake JJ and John Wanis Wek v. Sobol Trading Ltd (2016) SC1535, per Kirriwom, Cannings & Neill JJ.

The relevant background and facts

9. The next aspect I turn to is the relevant background and facts from which, this application comes. Maliso has filed only one affidavit in support of his application apart from his affidavit verifying the facts in his Statement filed under O.16, r.3 of the National Court Rules (the Statement). The relevant affidavit is the one that was sworn on 20^th and filed on 21^st July 2020 (the Affidavit). From that affidavit, the following are the relevant facts according to Maliso:

(1) He is a lawyer by profession and has been practicing law since 2004 and has been in continuous employment of the Ombudsman Commission (OC) for more than 25 years until 2014;

(2) During the period of his employment with the OC, he held a number of senior positions as, Senior Legal Officer, Acting Director Legal Service and ultimately Acting Ombudsman. There is no evidence of this in the affidavit or elsewhere, supporting this claim;

(3) He says, in 2016 he was one of the applicants for the position of Chief Ombudsman and was short listed with two others. There is also no evidence in the affidavit or elsewhere supporting this claim;

(4) In 2019, he applied for the position of the Chief Ombudsman. He addressed his application to a Grace So-on, Secretary to the OAC on 25^th July 2019 who acknowledged the application by letter dated 26^th November 2019;

(5) Suspecting a decision on the position of the Chief Ombudsman had already been made, he telephoned the Office of the National Executive Council on 15^th July 2020 and enquired about the status of his application. He annexes an email he sent to a Kathy Gabonen on the same date. The email in bolded wording, which appears to be a set of commands or orders relevantly stated:

“I applied and I am still expecting to be short listed for interview by the Committee.

What is going on?

The requirement for appointment to the position of Chief Ombudsman is in Section 4 (1) of the Organic Law on the Ombudsman Commission. A person with integrity issues is not eligible to be appointed as chief ombudsman.

Show this email to the Prime Minister who is the Chairman of the Ombudsman Appointing Committee.

I am not saying that I am the person to be appointed, No, whoever the Committee appoint must pass the eligibility test in Section 4(1).

Kathy forward this email to Grace So-on Copy me when you do so that I can follow up with her.”

(6) On the same day, 15^th July 2020, he went to the Government Printing Office and checked for a gazettal of any appointment and ascertained there was a draft gazettal that was awaiting confirmation and publication. He was thus told to check the next day, which he did and was able to obtain a copy of the relevant gazettal appointing Pagen as the Chief Ombudsman;

(7) At paragraphs 9 and 10 he talks about Pagen’s prior position in the OC initially as a Senior Leadership Investigator and later promoted to Director Leadership whose work was subject to quality control by the Office of Counsel. Thereafter, Pagen was appointed Acting Chief Ombudsman in 2016. In parts of paragraph 9, Maliso makes an allegation that, Pagen has suspicious standing inside the Ombudsman Commission. No facts with supporting evidence are included. Hence, this is an opinion and a conclusion without stating the base facts;

(8) At paragraphs 11, 12, 13 and 14, he presents submissions on what he perceives to be the law on the appointment of the Chief Ombudsman.

(9) At paragraph 15, he outlines certain alleged incidents of misconduct by Pagen which in his submission, disqualified Pagen from being appointed as the Chief Ombudsman. He then tries to substantiate each of these allegations by annexing a copy of a statement, a District Court Complaint and copies of a number of letters all written by persons other than himself as annexures HM4 – 12. Each of these documents make serious allegations against Pagen but, without any supporting evidence clearly establishing each of the allegations as established facts. Of these, annexures 5, 6 and 11 are letters written to the Prime Minister and other members of the OAC, receipts of which, were acknowledged by each of the addressees or their offices. There is no evidence or explanation as to how each of the copies of the letters and statement got to Maliso, especially when he was not copied in.

(10) Finally, at paragraph 16, he alleges without any evidence, of Pagen and a Ms Tabitha Suwae abusing the decision-making process to their advantage, without specifying the process.

10. Noting the evidence as presented above, it is appropriate that the issue of admissibility of parts of Maliso’s affidavit and annexures HM 4 to 12 to his affidavit, should be dealt with first.

Issue 1 - Are parts of Maliso’s affidavit and its annexures inadmissible?

11. It is settled law that affidavits must contain only facts and not arguments, submissions, opinions, the law or conclusions. I stated the relevant principles in my decision in William Duma v. Yehiura Hriehwazi (2004) N2526. These were subsequently restated by the Supreme Court, per Dingake J in the Application by Cloudy Bay Sustainable Forestry Ltd v. Pako F & C Holding (PNG) Ltd (2019) SC1788 in the following terms:

“The law governing how affidavits must be framed and what they must certain, which the lawyers are bound to obey in their practice of law is fairly straight forward. It is trite learning that affidavits must set out facts and not arguments. They should not be argumentative, contain submissions or opinions. The evidence canvassed in the affidavits should be relevant to the issues in controversy between the parties that the court is seized of. (Kui Valley Business Group Incorporated v Hugh Mosley and Deloitte Touche Tohmatsu (2011) N4548; William Duma v Yehiura Hriehwazi and Pacific Star Limited Trading as The National (2004) N2526).”

12. Applying these principles to the case at hand, I find parts of paragraph 9 and the whole of paragraphs 11 to 16 contain opinions, submissions on the law and believes with no facts. Also, the annexures HM4 to 12 are statements of opinions by each of the authors without any evidentiary foundation. At best, they are only allegations and, in my respectful view, they border on being scandalous within the meaning of s. 27 of the Evidence Act (Chp 48). Annexures HM 4 to 12 offend the rule against hearsay evidence. The following statement from Cross on Evidence, 2^nd Australian Edition at para 1.8, p. 6 succinctly states the relevant principles on hearsay evidence:

“Hearsay evidence is defined as a third person’s assertion narrated to the Court by a witness for the purpose of establishing the truth of that which was asserted. The relevant rule in short is that assertions of persons other than the witness who is testifying are inadmissible as evidence of the truth of that which is asserted. Hearsay is usually inadmissible because, for a variety of reasons ... the judges have been unwilling to assume, or allow the jury to assume, first that the witness is narrating the statement is telling the truth, and secondly, that the maker of the statement was doing likewise. The witness is on oath and subject to cross-examination, so the court has ample opportunity of forming its own opinion of his veracity, but there are no such means of checking the trustworthiness of the maker of the statement.”

13. Usually, when an objection is taken against any hearsay evidence, a party seeking to have the relevant evidence admitted, would respond with submissions seeking admission of the evidence in question under any of the well-known exceptions to the hearsay rule, if that is the case. The Court would then have to consider the arguments and make a decision. In this case, Maliso did not assist with any considered and appropriate submissions as to what known exception to the hearsay rule applies and why the objection should not be sustained. Also, appreciating that annexures HM5 to 11 a communication to the OAC and or its members, these letters would have been privileged and confidential communication intended for the OAC only to the exclusion of all other persons including, persons wishing to be appointed to the position of the Chief Ombudsman. Hence, the question, does arise, how did Maliso know there were such communication? How did he come to them? Who gave him the copies, why and when? The duty was on Maliso to provide answers or explanations to any or all of these questions. He failed to do that. In the absence of any such answers or explanation, there is room for all kinds of adverse inferences. One such inference is that, there was a concerted effort by Maliso and the authors of each of the statement and letters in collaboration with officers serving the OAC to influence the OAC into not appointing Pagen and preferring instead that, Maliso be appointed to the position of the Chief Ombudsman, even though Maliso says that was not his intent. The evidence shows that each of the authors of the letters were former employees of the Ombudsman who had issues with Pagen.

14. Annexure 12 is a copy of a District Court complaint without more. Appreciating this annexure and the other annexures, HM4 to 11 are all copies of documents authored, intended and sent to third parties, the duty was upon Maliso to demonstrate to the satisfaction of the Court that, these documents meet an exception to the best evidence rule to qualify their admission. That he failed to do.

15. In an earlier case, I had regard to the relevant part of the write upon in Cross on Evidence, 2^nd Australian edition and I made this point clear in Delta Kikori Ltd v. ANDQ Trading Ltd (2017) N6707 in the following terms:

“... It is apparent from a consideration of this authoritative work, a case has to be made out before the secondary evidence or something falling short of the original or a genuine copy of a document can be accepted into evidence. The burden lies with the party who wishes to adduce and rely on ... such evidence for the Court to then allow such evidence in and be relied upon.”

16. In the present case, Maliso failed to make a case for the evidence in question to be admitted. For these reasons, I uphold the submission that the offending parts of Maliso’s affidavit namely parts of paragraph 9 and 11 to 18 as well as annexures HM4 to 12 are inadmissible and should be struck out. Accordingly, I order the offending parts of Maliso’s affidavit be struck out, for breaching the law on proper use of affidavits namely to state only facts and not opinions, submissions or the law and also for breach of the law on hearsay and the law on the best evidence rule.

17. I will now turn to a consideration of the next issue: Is the decision of the OAC open for judicial review?

Issue 2 – Is the decision of the OAC open for judicial review?

18. Maliso argues that the OAC’s decision is judicially reviewable. This, he submits is the case because the OAC is a public authority and as such, its decisions are subject to judicial review. Learned counsel for the State, Ms Mugigia concedes the OAC is a public authority. However, she argues that, the OAC’s decisions are not judicially reviewable, given the status of the OAC with its composition and that it has an unfettered discretion under s. 4 (2) of the OLOC. In so submitting, she relies upon the decision in Public Employees Association v. Ombudsman Appointments Committee & Ors (1999) N1800.

19. In the case cited by Ms Mugigia, the plaintiff (PEA) sought a declaration that the appointment of Ila Geno and Raho Hitolo as Ombudsmen by the OAC was illegal, null and void and of no effect. The PEA sought that relief on the basis that OAC failed to meet the required quorum as provided for by s. 217 of the Constitution, due to the chairman of the Public Service Commission (PSC) not attending the relevant meeting that appointed the Ombudsmen.

20. In his decision, Woods J noted that, the appointment of Ombudsmen under s. 217 of the Constitution is not an appointment within the public service. Instead, he said:

“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.”

(Underlining mine)

21. In my decision in Aloysius Eviaisa v. Sir Mekere Morauta & Ors (2001) N2144, I tried to introduce transparency and fairness into the process of appointment of the managing director of the Public Officers Superannuation Fund Board (POSF) through a process of advertisement for interested persons to apply and considered on their merits. That proceed on the basis that the POSF was a public authority which did not have a process prescribed by its enabling legislation for such appointments. Upholding an appeal against that decision, the Supreme Court in Sir Mekere Morauta v. Minister for Finance & Ors (2002) SC685, per Kapi DCJ, Sheehan and Davani JJ (as they then were) held:

“... we also agree with counsel for the appellants that there is no requirement under the Act to advertize the position before an appointment may be made. These are matters of procedure which may be introduced by the Board at its discretion. In formulating these procedures, the Board may take into account the relevant National Goals and Directive principles (see s 25(2) of the Constitution). There is no evidence that the Board approved this procedure.”

22. As can be seen, both the Supreme and the National Courts have been reluctant to and have refrained from allowing reviews of decisions that have been left at the discretion of appointing authorities. The accepted culture to date is, a ready acceptance of decisions made by such authorities. It is not difficult to see why given the composition of such authorities. In the case of the OAC, s.217 (2) of the Constitution establishes it in the following terms:

“217. The Ombudsman Commission.

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

(2) The members of the Commission shall be appointed by the Head of State, acting with, and in accordance with, the advice of an Ombudsman Appointments Committee consisting of—

(a) the Prime Minister, who shall be Chairman; and

(b) the Chief Justice; and

(c) the Leader of the Opposition; and

(d) the Chairman of the appropriate Permanent Parliamentary Committee, or, if the Chairman is not a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, the Deputy Chairman of that Committee; and

(e) the Chairman of the Public Services Commission.”

23. As can be seen, the OAC is made up of all three arms of government, the opposition and the public service as well. They are represented by the Prime Minister (the executive), the Chief Justice (the judiciary), the Chairman of the appropriate Permanent Parliamentary Committee (the legislative), the leader of opposition and the Chairman of the PSC. This is a very peculiar and unique arrangement for the appointment of the Chief Ombudsman and two other members of the OC. This was provided for deliberately based on the recommendations of the Constitutional Planning Committee (CPC) in its Final Report 1974 at para 23, p 11/3. The CPC considered this important and necessary for the Commission to have and enjoy the confidence of the people and the Government: see para 23 at p 11/3.

24. This is unlike the authority that appoints the Chief Justice under s.169 (2) of the Constitution which is only by the executive arm of government, or the Prime Minister who is elected by the legislative arm of government under s. 142 (2) of the Constitution. The only other authority that is similar to the OAC is the Public Service Commission Appointments Committee (PSCAC) under s.190 (2) of the Constitution which comprises of the following:

“(a) the Prime Minister, who shall be Chairman; and

(b) the Chief Justice; and

(c) the Leader of the Opposition; and

(d) the Chairman of the appropriate Permanent Parliamentary Committee, or, if the Chairman is not a member of the Parliament who is recognized by the Parliament as being generally committed to support the Government in the Parliament, the Deputy Chairman of that Committee; and

(e) the Chief Ombudsman.”

25. In the case of appointments of the Chief Ombudsman and the two other Ombudsmen, the relevant provision is s.217 (2) of the Constitution (already reproduced above) and s. 4 and 7 of the OLOC as to qualification or disqualification for appointment. These provisions read:

“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 Ombudsmen 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.”

“7. Disqualifications from office.

A person is not qualified to be, or to remain, a member of the Commission if he is—

(a) a member of the Parliament; or

(b) a member of a provincial government body; or

(c) a member of a Local Government Council or Authority; or

(d) an office-holder in a registered political party; or

(e) an undischarged bankrupt or insolvent; or

(f) of unsound mind within the meaning of any law relating to the protection of the person and property of persons of unsound mind; or

(g) under sentence of death or imprisonment.”

26. A consideration of the relevant recommendations in the CPC’s report, gives the impression that our founding fathers, made a deliberate decision. The decision was to entrust this highest Constitutional Committee, the OAC, made up as it is with the legislative, executive and judicial arm of government together with the leader of the opposition and the head of the public service with the power, or authority and the responsibility to make the correct appointments to the position of the Chief Ombudsman and the other two Ombudsmen. It is also clear that, its decision should not be subject to any challenge by any person, aspiring to be appointed or not, by judicial review applications brought before a judge in the National Court or the judiciary only to the exclusion of the other two arms of government, the opposition and the public service. This is evident in the lack of any recommendation for a process similar to employment in the ordinary public service to apply. It is thus no surprise that, the process for the appointment of the Chief Ombudsman and the two other Ombudsmen by the OAC is not prescribed as is the case for the appointment to the various positions in the public service.

27. This has to be contrast with the almost ready grant of review of decisions appointing departmental heads, other public institutional heads and senior officers in the public service. In the area of the public service, the process and procedure for appointments are prescribed by statutory law such as the Regulatory Statutory Authorities (Appointment to Certain Offices) Act 2004, and others. The appointing authorities’ composition is not as high as the OAC. Through the many cases that have come through the Courts, there has been clear establishments of numerous breaches of the process and procedure and in some instances questionable people have been appointed.

28. Unlike in the ordinary public service setting, there is hardly any reviews or challenges against the decisions of the OAC, or the JLSC established under s. 183 (1) and (2) of the Constitution. Similarly, we hardly hear of any challenges to a decision appointing the Chairman and or members of the PSC by the PSCAC established under s.190 (1) and (2) of the Constitution. This is not surprising. As earlier noted, it was intended by the CPC in the case of the OC for example, the “most senior members of all three arms of government at the national level...and the Chairman of the Public Service Commission ... would be involved in selection of the Ombudsmen.” This would “mean that those appointed as Ombudsmen would have broad political, judicial and public service support – an essential prerequisite ...” for the institution (OC) to be effective, yet “once appointed, the Chief Ombudsman and the other Ombudsmen would be ... independent of any political or other authority or group.”

29. The only exception to the no challenges to the decisions of the OAC or such similar authorities, is the case of PEA v. OAC & Ors (supra), which failed. As was pointed out by Woods J in that case, the OAC and similar Constitutional Committees are some of the highest public authorities given their compositions. When that fact is combined with the fact that, there is no prescription and thus no restriction placed on these appointing authorities’ powers, they have in my view, a wide and unfettered discretion to decide who should be or not appointed. In such a case, the Supreme Court in particular has clearly taken a position against the courts imposing processes, procedures and or requirements not prescribed by any statutory law, thereby leaving the appointing authorities to exercise the discretions vested in them in ways they see fit for the benefit and interest of the institutions and ultimately, the country. A careful and considered exercise of the appointing power resulting in the appointment of the correct persons would result in ready acceptance by the people of the appointments. This would enable continued faith and confidence in our public offices. A combination of these would no doubt continue to give reason for our people to maintain their trust and confidence in the integrity, purpose and functioning of the relevant institutions and persons appointed to the relevant offices.

30. Carefully considering the foregoing and proceeding on the basis of the decision in PEA v. OAC & Ors (supra) and Sir Mekere Morauta v. Minister for Finance & Ors (supra), I am of the view that people through the Constitution have vested the OAC with a wide and unfettered discretion to appoint the Chief Ombudsman and the other Ombudsmen. Once that discretion is exercised, it cannot be open to any challenge by judicial review before a judge of the National Court on the application of a person, as in this case, who might have sought to be appointed or any other person. For it is expected that the Committee would have carefully considered and applied on their own motion the qualification and disqualification factors set out in ss. 4 and 7 and make the appointments within the terms and conditions set out in ss. 5 and 8 of the OLOC of persons who have the support of and confidence of all three arms of government and the public service. When all three arms of government have come together at least in this one powerful constitutional committee, it necessarily follows both logically and as a matter law that judicial review as a remedy cannot be available without an expressed legislative mandate. This is because of the fact that, judicial review is readily available for the review of decisions of the executive arm of government and other lower tribunals or authorities. Also, the availability of judicial review as a remedy would mean the combine decision of the three arms of government, the opposition and the public service by the judiciary to the exclusion of the other arms of government and the opposition and the public service. Effectively, this would render the judicial arm more powerful, over and above the legislative and executive arms of government, the opposition and the public service combined. In my view, in order for that to be the case, there has to be an expressed constitutional mandate for judicial review. This cannot be done through judicial activism or law making applying, general principles that are applicable in the administrative law arena which have in the main been made by the judges through judicial pronouncements.

31. The Constitution in s. 99 (2) provides for the three arms of government with their separate powers and functions. Subject only to the Constitution, the National Parliament is vested with unlimited powers of law- making while the judiciary is vested with unlimited jurisdiction to interpret and apply the laws that are made by Parliament. Subsection (3) of s. 99 then provides that: in principle, the respective powers and functions of the three arms shall be kept separate from each other. This concept of separation of powers was succinctly explained in SCR No. 1A of 1981; Re Motor Traffic Act [1982] PNGLR 122 at p. 134, by the then Kearney DCJ in the following terms:

“...It is clear from its structure that the Constitution contemplates a general separation of powers between the three principal arms of government – the legislature, executive and judiciary; see the Constitution s 99. As a parliamentary system with an executive responsible to Parliament, the separation of powers between the arms cannot be rigid. But the separation principle remains of basic importance in the Constitution and prohibits incursions by one arm of government upon the basic functions of another.”

32. The basic function of the judiciary is to interpret and apply the law and ensure not to step into the role of law making which is within the province of Parliament or the legislature. Hence, in the absence of any express authorisation by the legislature to review the decisions of the OAC, are not open for review by judicial review.

33. Having dealt with the last issue, it is now convenient to deal with the question of Maliso’s standing. Accordingly, I turn to a consideration of that issue.

Issue 3 – Does Maliso have the necessary standing to bring this application?

(i) Relevant principles

34. In our jurisdiction, a large body of case law clearly establishes the principles governing the issue of one’s standing to bring judicial review proceedings. Firstly, locus standi is a threshold issue which must be determined first: See Inland Revenue Commissioners; ex parte National Federation of Self-Employed and Small Business Limited [1981] UKHL 2; [1981] 2 WLR 722 per Lord Diplock adopted and applied in Jim Kas v. Sevua (2000) N2010, per Sakora J. Secondly, depending on the nature of the relief being sought, a plaintiff will in general have locus standi when he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and perhaps to his social or political interests: See Australian Conservation Foundation Inc. v. Commonwealth of Australia (1980) 146 C.L.R. 493; 54 A.L.JR. 176, per Mason J; Papua New Guinea Air Pilots Association v. The Director of Civil Aviation and the National Airline Commission trading as Air Niugini [1983] PNGLR 1, per Andrew J. Thirdly, the cases are various and so much depends in a given case on the nature of the relief sought because, what is sufficient interest in one case may be less than sufficient in another: See Robinson v. The Western Australian Museum (1977) 138 C.L.R. 283, per Mason J. Fourthly, the Courts have on many occasions expended the categories or situations in which a person could have locus standi simply by reference to having ‘sufficient interest’ in the matter, which may not necessarily be a right: See NTN Pty Limited v. The Board of Post & Telecommunications Corporation [1987] PNGLR 70, per Wilson J; Arawe Logging Pty Ltd v. The State [1988-89] PNGLR 216, per Brunton AJ; and National Capital District Interim Commission v. Crusoe Pty Ltd [1993] PNGLR 139, per Brunton J. Fifthly, the concept of “sufficient interest’ is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the Plaintiff and the subject matter of his complaint. Generally, a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private right in law has been affected or that he has suffered some prejudice: see Steamships Trading Limited v. Garamut Enterprises Ltd (2000) N1959, per Sheehan J as endorsed by the Supreme Court in Aquila Sampson v. NEC (2019) SC1880, per Anis J with Kassman and Toliken JJ agreeing; David Kabomyap Allolim v Biul Kirokim (2018) SC1735, per Batari J, David & Frank JJ. Sixthly, the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal rights. It can extend to more public issues. In determining standing, Court decisions in our jurisdiction lean strongly towards the granting of status to citizens seeking to complain of what is seen as breaches of laws of the country: Steamships Trading Limited v. Garamut Enterprises Ltd (supra) as endorsed by the Supreme Court in Aquila Sampson v. NEC (supra). Finally, the relevant decisions on point show an inclusive rather than an exclusive view of applicants with standing, holding that challenges by citizens to the validity of decisions of statutory or public authorities should not too readily be excluded from the Courts on grounds of lack of direct personal involvement. Very often determination of standing is only possible with an examination of the complaint itself: Steamships Trading Limited v. Garamut Enterprises Ltd (supra) as endorsed by the Supreme Court in Aquila Sampson v. NEC (supra).

(ii) Application of the principles

35. As noted earlier, Maliso says he has standing because he applied for the position of the Chief Ombudsman. In support of his claim he points to his application being acknowledged and on an earlier occasion he was shortlisted for the position. He also claims, he is pursuing his application in the public interest and for the protection of the integrity of the OC. He has not provided evidence of his age and other matters apart from his formal qualifications and work experience which would show he was better qualified than Pagen was. In response, learned counsel for the State, Ms Mugigia submits Maliso does not have the standing or the basis to challenge the decision of the OAC. She does so with the support of the decision per Woods J, in PEA v. OAC & Ors (supra).

36. I repeat my observations and discussions in the foregoing, that there is no process or procedure prescribed by the Constitution or the OLOC or any other law on the appointment of the Chief Ombudsman or the two other Ombudsmen. The task of appointing a person to any of these positions is a matter left entirely within the discretion of the OAC. In the exercise of that discretion, the OAC could call for or invite expressions of interest from persons it considers appropriately qualified to be considered for appointments to any of these positions. Also, if it so wishes, the OAC could create and operate by a process or procedure but that would not be sufficient to create and grant standing to any person wishing to be appointed to any of these positions to apply for and failing appointment apply for judicial review. Where, a person as in this case expresses an interest to be considered for appointment to any of the positions in question, no law requires the OAC to consider such an expression. If there is any such law, the duty was on Maliso to draw the Court’s attention to that, but he failed to do so.

37. May I also add that, the Chief Ombudsman and the two other Ombudsmen’s positions are not available for just any person looking for employment to fill. Hence, it is not a case of another employment opportunity for persons looking for employment to apply for. Instead, these are privileged and honourable positions usually filled by invitation and at the complete prerogative of the appointing authority, the OAC. This is the case because, as intended by the CPC, it involves the “most senior members of all three arms of government”, the leader of the opposition and the Chairman of the PSC in the selection and or appointment of appropriately qualified persons to fill the positions.

38. Having regard to the foregoing and the answer to issue 2, I find Maliso does not have the necessary locus standi to seek a review of the OAC’s decision to appoint the Second Defendant.
39. This now leads us to the last and remaining question of whether, Maliso has established an arguable case. The determination of the second and third issues could render a consideration of the remaining issue unnecessary. For completeness however, I have given consideration to this issue as well.

Issue 4 – Has Maliso established an arguable case for judicial review?

40. The question of whether Maliso has established an arguable case is dependent on whether he has properly pleaded his case in his Statement pursuant to O.16, r.3 of the National Court Rules and the evidence he has filed in support of this claims.

(i) Relevant principles

41. It is settled law that the Statement filed in support of an application for leave for judicial review is the equivalent of a statement of claim in a writ of summons. It must therefore set out and accurately the decision that is sought to be reviewed, together with the date when the decision was made and by whom with a succinct statement of the relevant facts which give rise to the grounds for review, the reliefs sought and grounds upon which the reliefs are sought. The Statement must also state with clarity any statutory provision or common law duty alleged to have been breached and how that breach is said to have occurred. This is necessary to prevent possible abuse of court process by busybodies with misguided or trivial complaints over administrative error. To meet this requirement, the Statement must plead in a separate paragraph, in clear and concise terms, the grounds relied upon. The grounds must disclose some known ground recognized by law as proper grounds upon which judicial review as a relief is available. The known grounds for judicial review are also settled. These comprise of, where the decision-making authority exceeds its powers or there is lack of jurisdiction, commits an error of law, commits a breach of natural justice, reaches a decision which no reasonable tribunal could have reached (Wednesbury principles of unreasonableness) or abuses its powers: See for authorities on point, Lawrence Sausau v. PNG Harbours Board (2006) N3253, per Injia DCJ (as he then was); Kekedo v. Burns Philip [1988-89] PNGLR 122, per Kapi DCJ (as he then was) and Independent State of Papua New Guinea v. Kapal [1987] PNGLR 417, per Kidu CJ, Kapi DCJ, Woods J (as they then were).

42. Once applicants are able to satisfactorily discharge the requirement for proper pleading, the next consideration is the evidence adduced in support of the matters pleaded. It is settled law that, an applicant for leave for judicial review must produce the relevant and necessary evidence supporting his claims: See The State v. Toka Enterprises Limited (2018) SC1746, per Nablu J (as she then was) with whom Injia CJ (as he then was) and Hartshorn J agreed. A failure to produce such evidence, will fail to lead to a finding of an arguable case being established to warrant grant of leave for judicial review.

(ii) Application of the relevant principles

43. In the present case, Maliso claims 8 grounds with one ground, having 9 sub-grounds at part “D. GROUNDS” in his Statement. A closer look at each of these grounds reveals a disclosure of only one possible known ground for judicial review. That ground is pleaded in the following terms at paragraph 7:

“The decision by the First Respondent to appoint the Second Respondent did not meet the eligibility requirement under Section 4(1) of the Organic Law on Ombudsman Commission;”

44. The rest are in fact attempts at elaborating on this one ground by pleading arguments and speculations which do not in themselves constitute any ground for review. In paragraph 8 for example, Maliso claims the “decision by the First Respondent to appoint the Second Respondent with serious integrity issues in the Ombudsman Commission defeats the purpose of Section 217 (1) and (2) of the Constitution;”. That is in effect an argument in support of the only possible recognised ground for review pleaded and not a ground in itself. The next ground is pleaded in paragraph 9. Rather than stating facts disclosing a known ground for judicial review, this paragraph speculates that the Second Respondent as Chief Ombudsman will continue to compromise the independence and integrity of the Commission proceeding under Section 14 of the OLOC. A number of past actions of the Second Respondent is then pleaded in sub-paragraphs (a) to (i) of the Statement. A close examination of these pleadings shows no proper pleading of facts disclosing a known ground for judicial review. Instead, at best, they are submissions and arguments. Then based on those pleadings, Maliso goes on to plead by way of conclusion in paragraph 10 that the OAC “failed to uphold the eligibility qualification for appointment under Section 4(1)” of the OLOC. In paragraph 11, Maliso claims the OAC “failed to accord paramount importance to the independence and integrity that the Office of the Chief Ombudsman carries.” He then goes on to plead in the same paragraph “The source of legal advice, if any, the First Respondent relied on is suspicious.” Again, this ground does not plead any fact sufficiently and in so failing, fails to disclose a known ground for judicial review.

45. In his remaining grounds, Maliso pleads:

“12. The Second Respondent relies on the person who is the Acting Counsel to the Ombudsman Commission Ms Tabitha Suwae. She is cunning and instrumental member of the interest group. All said above applies to her.

13. It is unreasonable that the First Respondent Committee who ought to be aware of the above integrity issues concerning the Second Respondent passed a decision to appoint him to the Office of the Chief Ombudsman that demanded a person of integrity, independence of mind, resolution and high standing in the community.
    
14. The decision lack (sic) rational justification and ought to be ultra vires.”
    

46. These paragraphs at best in my view, are speculative and argumentative without stating the facts succinctly disclosing a known ground for judicial review. Unreasonableness in the Wednesbury sense and decision makers acting ultra vires their powers are well known grounds for judicial review. But what is the factual basis for these allegations? These pleadings clearly lack a pleading of the relevant and necessary facts forming the foundation for each of the allegations. Additionally, in respect of the pleadings in paragraph 12, it contains a claim against a person who is not a party to the proceeding and is therefore inappropriate and irrelevant.

47. Having regard to the matters I alluded to above, I find the pleadings in the Statement in this case, fails to disclose any additional ground for judicial review. Hence, each of the matters pleaded from paragraph 8 to 14 of the Statement are liable for strike out or dismissal.

48. I now turn to a consideration of the evidence adduced by Maliso in support of his claims, namely his affidavit sworn on 20^th and filed on 21^st July 2020. The decision on the objection to the admission of certain parts of this affidavit leaves him with only paragraphs 1 to 8, parts of paragraphs 9 and the whole of paragraph 10. The remaining parts of Maliso’s affidavit fails to provide any evidence of the decision sought to be reviewed. With that comes no evidence of the reasons for the decision sought to be review with the necessary particulars, such as the date, venue and the manner in which the decision was made. Most importantly, no admissible evidence is before the Court which supports Maliso’s claim of s.4 (2) of the OLOC being breached.

49. If the struck-out parts of Maliso’s affidavit were not struck out, that would make no difference. As already noted, these parts of the evidence contain arguments, submissions, opinions and allegations without any supporting evidence. These allegations were made by persons who had a grudge or an axe to grind against Pagen. They sent the letters making the allegations they made clearly for one objective. That objective was to ensure Pagen did not get appointed and instead their man, Maliso gets appointed. No submission is before this Court clearly demonstrating how the OAC was required or obligated to consider these allegations without an opportunity being given to Pagen to be heard on each of the allegations in his defence. Also, there is no evidence clearly establishing Maliso being qualified for the position of Chief Ombudsman. Although he has produced evidence of his formal qualifications he has for instance failed to adduce any evidence on his age which is a critical factor in the appointment of persons to the office of the Chief Ombudsman and the other Ombudsmen and other Constitutional Offices.

50. A meeting of the OAC or indeed any other appointing authority considering an issue of appointment cannot and should not be turned into a complaints receiving, hearing and determination process. Two reasons underpin that view. First, these are two different and distinct processes. A complaints receiving and hearing process takes much time, effort and costs to commence and conclude, with opportunities given to the persons implicated in the complaints to respond to the allegations against them before a final decision on a complaint could be arrived at. On the other hand, the process of appointing persons to positions is a simple, shorter and less costly. Better administration and efficiency in the functioning of the institution that is affected by either of these processes require the two processes to be separated in order to achieve that end. Secondly, given the two different processes, there has to be an expressed legislative provision authorising a combining of the two separate processes, if that was the intention of the legislature. The obligation was upon Maliso but he failed to draw the Court’s attention to the existence of any such provision.

51. Having regard to the above factors, I am of the view that, it was within the powers of the OAC to disregard and or ignore the letters and the allegations therein contained. In the absence of any evidence to the contrary, one thing is certain. The OAC comprising as it does of the heads of the executive and judiciary, a representative of the legislature, the opposition leader and the head of public service, would have given careful and serious consideration to the qualification of the persons they were considering for the office of the Chief Ombudsman and ultimately arrived at the decision to appoint the Second Defendant. Given the positions of the members of the OAC, their decision has to be respected and no one with personal and or ulterior motives without clear and strong evidence should be allowed to readily question the exercise of the unfettered discretion vested in the OAC, except in the clearest of cases. A clear case for example would be one in which the appointee has been convicted of a serious criminal offence which is well within the public’s knowledge. No such evidence has been produced in this case.

52. No independent, credible and admissible evidence has been produced by Maliso which demonstrates where or how the OAC failed in its duties. Similarly, he has failed to produce any evidence forming the foundation for his claim that, the decision to appoint Pagen is unreasonable in the Wednesbury sense. The concept of unreasonableness is dependent on evidence and more so the process and procedure and the factors that should be taken into account before decision makers could arrive at their decisions. In other words, the concept does not apply in abstract or in a setting that is devoid of evidence establishing the relevant process and procedure, that process and procedure not being followed, the factors that should have been taken into account but were not and or demonstrate the decision maker taking into account irrelevant factors.

50. Having regard to the foregoing, I am not satisfied that, a case has been made out by Maliso for this Court to grant him leave for judicial review. Accordingly, I decline the leave sought and order its dismissal with costs to the State to be taxed, if not agree.

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Howard Maliso: Appearing in person
Solicitor General: Lawyers for the Third Defendant