Application Pursuant to Constitution, Section 18(1) by Justice Sir Bernard Sakora [2020] PGSC 76; SC1980 (31 July 2020)

SC1980

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCC (OS) NO 3 OF 2017

APPLICATION PURSUANT TO CONSTITUTION, SECTION 18(1)

BY JUSTICE SIR BERNARD SAKORA

Waigani: Cannings J, Yagi J, Polume-Kiele J
2020: 20^th, 31^st July

CONSTITUTIONAL LAW – application under Constitution, s 18(1) (original interpretative jurisdiction of the Supreme Court) – declarations sought as to constitutionality of appointment of tribunal to investigate question of removal from office of a Judge, referral of matter to tribunal, jurisdiction of tribunal – Constitution, Subdivision VI.5.H (removal from office of senior judicial and legal office-holders) – Organic Law on the Judicial and Legal Services Commission – whether applicant has standing to make application.

The applicant, a Judge of the National Court of Justice and the Supreme Court of Justice at the relevant time, applied to the Supreme Court under s18(1) of the Constitution for declarations that the appointment by the Judicial and Legal Services Commission of a tribunal under s 181 of the Constitution, to investigate the question of his removal from office, was invalid and unconstitutional. The Supreme Court Rules 2012 require that before an application under s 18(1) of the Constitution can be heard, the Court should declare that the applicant has standing. The applicant requested the Court to declare that he has standing. The request was opposed by the intervener, the Judicial and Legal Services Commission, on grounds that the applicant had resigned as a Judge, that his proposed grounds of challenge are matters of judicial review that ought to be argued in an application for judicial review in the National Court, and could also have been raised in the tribunal and do not raise significant constitutional issues.

Held:

(1) The question of whether an applicant under s 18(1) of the Constitution has standing is a matter at the discretion of the Supreme Court, to be exercised in accordance with the rules of the underlying law formulated in Re Petition of MT Somare [1981] PNGLR 265.

(2) Applying the Somare rules to the facts of this case:

• (a) the applicant is a citizen, who was at the time of making the application, the holder of high public office who was directly and personally affected by the decisions the constitutionality of which he wishes to challenge, and the fact that he has since resigned does not defeat the genuineness of his interest in the subject matter of the application, he therefore has a sufficient interest;
  
• (b) he wishes to raise significant constitutional issues as to the interpretation and application of provisions of the Constitutional Laws relating to the procedures to be complied with prior to removal from office of a Judge, which are not trivial, vexatious, hypothetical or irrelevant;
  
• (c) he is not a busybody;
  
• (d) though the issues could have been raised in other ways, including by judicial review under the National Court Rules, that is not a good reason to refuse his request.
  

(3) The applicant’s request for a declaration that he has standing was granted.

Cases Cited

The following cases are cited in the judgment:

Application by Ila Geno (2014) SC1313
Application by Sir Makena Geno (2015) SC1455
Konivaro v Constitutional Office-holders Rights Tribunal, OS (JR) No 901 of 2016, 13.04.18 unreported
Morauta v Pala (2016) SC1529
Namah v Kua (2014) SC1342
Namah v Pato (2014) SC1304
Polye v O’Neill (2016) SC1547
Re Petition of MT Somare [1981] PNGLR 265
Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership Tribunal (2008) SC1011
Sakora v Judicial and Legal Services Commission (2017) N6991

REQUEST

This was a request for a declaration that an applicant under s 18(1) of the Constitution has standing.

Counsel

L R Henao & R Raka, for the Applicant
L D Wood, for the Intervener

31^st July, 2020

1. BY THE COURT: The applicant, Sir Bernard Sakora, a former Judge of this Court, requests that the Court declare that he has standing to make an application under s 18(1) of the Constitution, seeking declarations that the appointment in June 2017 by the Judicial and Legal Services Commission (the JLSC) of a tribunal under s 181 of the Constitution, to investigate the question of his removal from office, was unconstitutional.

2. The applicant contends that the appointment of the tribunal was unconstitutional, in that:

1. The then Chief Justice Sir Salamo Injia, who was a member of the JLSC, ought not have participated in the decision to appoint the tribunal as he had exhibited bias against the applicant and ought to have disqualified himself from involvement in the decision, but refused to do, in breach of the principles of natural justice under s 59 of the Constitution.
   
2. Sir Salamo acted unfairly by not disclosing that other Judges also delayed delivery of judgments and gave judgments after a long period of delay (that being the primary allegation against the applicant that resulted in appointment of the tribunal), in breach of the principles of natural justice under s 59 of the Constitution.
   
3. The JLSC decision to refer the applicant to a tribunal, to investigate the question of whether he should be removed from office, was made without conducting a vote, contrary to s 9(4) of the Organic Law on the Judicial and Legal Services Commission.
   
4. The JLSC decision to appoint the tribunal was made without conducting a vote, contrary to s 9(4) of the Organic Law on the Judicial and Legal Services Commission.
   
5. The JLSC decision to appoint a former New Zealand Judge, Sir Bruce Robertson, and Judges of the National Court of Justice, Justice Lawrence Kangwia and Justice William Neill, as members of the tribunal, was made without conducting a vote, contrary to s 9(4) of the Organic Law on the Judicial and Legal Services Commission.
   
6. The JLSC failed, following appointment of the tribunal, to lay any charges against the applicant, thereby denying the applicant the right to be informed of the allegations against him, in breach of the principles of natural justice under s 59 of the Constitution.
   
7. The JLSC failed to prepare a statement of reasons for its opinion that the question of removal from office of the applicant should be investigated, contrary to s 180(1)(b) of the Constitution.
   
8. The JLSC was unlawfully constituted when it decided to appoint the tribunal as its meeting was attended by the Chief Magistrate who is only a member of the Commission, perforce of s 183(3) of the Constitution, in relation to matters relating to the Magisterial Service, thus rendering the meeting and the decision made at the meeting, invalid.
   

REQUEST

3. Order 4, Rule 17 of the Supreme Court Rules 2012 requires that before an application under s 18(1) of the Constitution can be heard, the Court must declare, on request by the applicant, that the applicant has standing.

4. The same request that we are determining was made before the Supreme Court constituted by Higgins J, Foulds J and Pitpit J on 14 December 2017. Judgment was reserved and no decision had been made by August 2018 when Higgins J retired or by September 2018 when Foulds J died, leaving the remaining Judge, Pitpit J, without jurisdiction. Hence the request has been re-heard.

OPPOSITION

5. The applicant’s request for a declaration as to his standing is opposed by the intervener, the JLSC, on grounds that:

• the applicant resigned as a Judge in February 2018,
  
• his proposed grounds of challenge are matters of judicial review that ought to be argued in an application for judicial review in the National Court, a procedure that he has already exhausted due to his application for leave for judicial review of the same decisions that are the subject of the present proceedings, being refused by the National Court (Hartshorn J) on 19 September 2017: Sakora v Judicial and Legal Services Commission (2017) N6991;
  
• the proposed grounds of challenge could also have been raised in the tribunal (if the applicant had not resigned);
  
• the proposed grounds of challenge do not raise significant constitutional issues.
  

METHODOLOGY

6. It was affirmed by the Supreme Court in Namah v Pato (2014) SC1304 (and followed in Application by Ila Geno (2014) SC1313, Namah v Kua (2014) SC1342, Application by Sir Makena Geno (2015) SC1455, Morauta v Pala (2016) SC1529 and Polye v O’Neill (2016) SC1547) that the question of whether an applicant under s 18(1) of the Constitution has standing is a matter at the discretion of the Supreme Court, to be exercised in accordance with the rules of the underlying law originally formulated in Re Petition of MT Somare [1981] PNGLR 265, which can be summarised as follows:

(a) the applicant will have standing if he or she has a sufficient interest in the matter, which will be demonstrated if the applicant:

• (i) has personal interests or rights that are directly affected by the subject matter of the application; or
  
• (ii) is a citizen who has a genuine concern for the subject matter of the application; or
  
• (iii) is the holder of a public office, the functions of which relate to the subject matter of the application;
  

(b) the application must raise significant (not trivial, vexatious, hypothetical or irrelevant) constitutional issues;

(c) the applicant must not be a mere busybody meddling in other people’s affairs and must not be engaged in litigation for some improper motive, eg as a tactic of delay;

(d) the fact that there are other ways of having the constitutional issues determined by the Supreme Court does not mean that a person should be denied standing.

APPLYING THE SOMARE RULES TO THIS CASE

(a) Sufficient interest?

7. The applicant is a citizen, who was at the time of making the application, the holder of high public office who was directly and personally affected by the decisions the constitutionality of which he wishes to challenge. The fact that he has since resigned does not defeat the genuineness of his interest in the subject matter of the application.

We are satisfied that the applicant has a sufficient interest in the subject matter of the application.

(b) Significant constitutional issues?

8. The applicant wishes to raise constitutional issues as to the interpretation and application of provisions of the Constitutional Laws relating to the procedures to be complied with prior to removal from office of a Judge. We consider that these issues are inherently significant. The questions are not trivial, vexatious, hypothetical or irrelevant.

9. Though there is some case law on the general subject of appointment of tribunals to inquire into the removal of Judges and other constitutional office-holders (eg Re Public Prosecutor’s Power to Request Chief Justice to appoint a Leadership Tribunal (2008) SC1011, Konivaro v Constitutional Office-holders Rights Tribunal, OS (JR) No 901 of 2016, 13.04.18 unreported) we know of no case that has addressed the particular arguments that the applicant proposes to advance, if this matter proceeds to trial.

10. Though the applicant has resigned and determination of the issues have lost some of their direct relevance for him, whatever interpretation of the Constitutional Laws is given by the Court will be of benefit and practical significance for the future.

(c) Is the applicant a busybody or acting for an improper motive?

11. The applicant cannot be labelled a busybody. He is not someone meddling in other people’s affairs that should be of no concern to him. If he was and still aggrieved by being affected by decisions he argues were made unconstitutionally, he should have his day in Court.

(d) Other ways of determining the issues?

12. The fact that there were alternative methods of agitating these issues (eg judicial review and by raising the issues in the tribunal) and that those methods are no longer available, is not a good reason to deny a request for a declaration as to standing.

CONCLUSION

13. Applying the Somare rules to the facts of this case shows that:

(a) the applicant has a sufficient interest;

(b) he wishes to raise significant constitutional issues;

(c) he is not a mere busybody and appears to have no improper motive; and

(d) though the issues could have been raised in other ways, that is not a good reason to refuse his request.

14. All criteria support the exercise of discretion in the applicant’s favour. We will grant the applicant’s request for a declaration that he has standing.

ORDER

(1) The applicant’s request is granted.

(2) It is declared that the applicant has standing to make the application under s 18(1) of the Constitution.

(3) Costs are in the cause.

Judgment accordingly.

_____________________________________________________________
Henaos Lawyers: Lawyers for the Applicant
Ashurst Lawyers: Lawyers for the Intervener