Ziru v Attorney-General [1993] SBHC 13; HC-CC 021 of 1993 (1 March 1993)

HIGH COURT OF SOLOMON ISLANDS

Civil Case No. 21 of 1993

DR. RONALD ZIRU (on behalf of SIMA Medical Centre)

-v-

ATTORNEY GENERAL

High Court of Solomon Islands
(Muria ACJ)

Hearing: 19 February 1993
Ruling: 1 March 1993

P. Tegavota for Appellant
P.M. Afeau for the Respondent

MURIA ACJ: The Applicant brought this application on behalf of himself and seven other national doctors who are all members of the Solomon Islands Medical Association Medical Center ('SIMA Medical Centre") for an order of certiorari to quash the decision of the Public Service Commission ("Public Service Commission") dated 17/11/92 appointing one Dr. Roy W. Goonewardene to the post of Chief Consultant Surgeon at the Central Hospital. The Applicant and the other seven members of SIMA Medical Centre had resigned from Government Service and have now established and operated the SIMA Medical Centre which is a private Medical Clinic.

Mr. Afeau now seeks a preliminary ruling on the question whether the applicant has the locus standi to bring this action challenging the decision of the Public Service commission. The court will therefore, first consider the applicant's legal standing in this matter.

It is common ground that the resignation from the Government Service of the eight doctors concerned followed a dispute between the Government and the Solomon Islands Medical Association ("SIMA") which is an association of doctors who are employed by the Government. That dispute was over terms and conditions of service for doctors who are in the Government employment. It is also true to say that the eight doctors have not been re-employed by the government and have since been operating their medical practice in the SIMA Medical Centre. It is to be noted that SIMA and SIMA Medical Centre are totally different bodies.

The result of the doctors' resignation was that medical and other services at the Central Hospital had been seriously affected. In particular, surgical service had been mostly needed. The two senior doctors who normally provided surgical service at the Central Hospital are among the eight resigned doctors.

The situation at the Central Hospital became so desperate that the Government was forced to request the assistance of private doctors (who were not from SIMA Medical Centre) to provide needed Medical services at the Hospital. In October 1992, the SIMA medical Centre doctors had arranged to provide and did provide specialist services at Central Hospital. The fees for those specialist services were charged against the Government. The specialist services, however, did not last long because on 19/10/92 the doctors from SIMA Medical Centre withdraw their services.

As a result of SIMA Medical Centre doctors withdrawing their services, the Government proceeded and recruited Dr. Roy Goonewardene on a contract for two years and appointed him to the post of Chief Consultant Surgeon in the Government Service.

The SIMA Medical Centre doctors instituted these proceedings, as mentioned earlier, as a result of Dr. Roy Goonewardene's appointment.

Mr. Afeau's basic argument was that the applicant has no locus standi to bring these proceedings because, Mr. Afeau said, the SIMA Medical Centre doctors were not "persons aggrieved" by the Public Service Commission decision. Counsel relied on the cases of Sidebotham [1880] UKLawRpCh 148; [1880] 14 Ch.D. 458 and Buxton -v- Minister of Housing [1960] 3 All E.R. 408.

Mr. Afeau argued that for the Applicant to have the legal standing to come to this court and to complain against the Public Service Commission decision on the appointment of Dr. Roy Goonewardene, he (the Applicant) must show that he is a "person aggrieved," that is, a person whose legal right has been affected. In the present case Mr. Afeau strongly argued that the Applicant has no identifiable legal interest to give him and the other doctors of SIMA Medical Centre the locus standi and that they come under the category of 'busybody' interfering with what is not their business affairs.

Further Mr. Afeau argued that the test of 'sufficient interest' as recently have been developed in England should not be adopted as the test of locus standi in a case such as the present one lent may be applied only in constitutional cases. Thus the case of Kenilorea -v- Attorney General (1983) SIlR 61 where this court adopted the 'sufficient interest' test as expounded by the House of Lords in R -v- Inland Revenue Commissioners, ex parte National Federation of Self-Employed and Small Businesses Ltd [1980] 2 WLR 579 must be distinguished from a case such as the present case.

Mr. Tegavota on the other hand argued that the Applicant has locus standi to bring this action before the court. Counsel submitted that the test adopted in Sidebotham and Liverpool Taxi Owners Association [1972] 2 All E.R. 589 cases are very restrictive and should not be applied here. Mr. Tegavota maintained that as long as the Applicant can show that he has a 'genuine interest' in the matter, he has locus standi to come to the court and ask for redness.

It is further argued by Mr. Tegavota that the fact that the Applicant and other doctors from SIMA Medical Centre had already resigned from the Government, does not preclude Applicant from challenging the Public Service Commission decision to appoint Dr. Roy Goonewardene's appointment to the post of Chief Consultant Surgeon. The Public Service Commission decision, Counsel argued, affects the Medical profession of which the Applicant and the SIMA Medical Centre doctors are members, in Solomon Islands and thus gives them the legal standing to challenge that decision.

The various tests of locus standi can be seen from the numerous cases brought before the courts. Formerly, the test to be applied on the question of Locus standi was that the applicant must show that he was a 'person aggrieved'. An applicant is therefore said to be an 'aggrieved person' where his legal rights have been infringed. Such a position can be seen from the cases of Sidebotham (Supra); Nicholson [1899] UKLawRpKQB 165; [1899] 2 QB 455; Greenbaum [1957] 55 LGR 129 and Buxton -v- Minister of Housing (Supra).

Other countries have moved away from the orthodox approach on the test of locus standi to the liberalisation approach as developed by the House of Lords in National Federation of Self-Employed and small Businesses where the applicant for judicial review must satisfy the court that he has a 'sufficient interest' in the matter to which the application relates.

One such case in which the court refused to follow the liberalisation approach is the Nigeria case of Thomas and Other -v- Alufosoye [1986] LR (Const.)636. In that case a group of members of the Anglican Communion in Largos objected to the appointment of the Bishop of Largos. The question of locus standi of the plaintiffs was raised. The court of Appeal and later Supreme Court refused to follow the liberal approach as taken by the National Federation of self-employed and Small Businesses case. The court held that as it stood the constitution of Nigeria (section 6(6)(b)) laid down the requirement of locus standi which required the plaintiffs/Appellants to establish a sufficient interest which was a personal interest over and above that of the general public and so the court should follow such an orthodox approach rather than liberal approach of the English courts. Ademola, JCA said at page 650.:

"....to entitle a person to invoke judicial power, he must show that either his personal interest will immediately be or has been adversely affected by the action or that he has sustained or is in immediate danger of sustaining injury to himself, and which interest or injury is over and above that of the general

public."

The court stated that being just a communicate member of the Anglican communion is not enough to invest one with the locus standi to maintain an action questioning the election of a Diocesan Bishop.

The effect of the cases such as, that Nigeria case and the other cases relied on by Mr. Afeau was to limit the question of locus standi to persons who had a particular grievance of their own over and above the rest of the public.

The liberal approach, however, as adopted in the Federation of Self-Employed and Small Businesses case and other recent cases, including Kenilorea -v- Attorney General, has shown a discernible trend away from the restrictive approach to locus standi

In Solomon Islands the Constitutional provision on locus standi is section 83 which provides as follows:

"83(1) Subject to the provisions of sections 31(3) and 98(1) of, and paragraph 10 of Schedule 2 to, this Constitution, if any person alleges that any provision of this Constitution (other than Chapter II) has been contravened and that his interests are being or are likely to be affected by such contravention, then, without prejudice to any other action with respect to the same matter which is lawfully available, that person may apply to the High Court for a declaration and for relief under this section.

(2) The High Court shall have jurisdiction, in any application made by any person in pursuance of the preceding subsection or in any other proceedings lawfully brought before the Court, to determine whether any provision of this Constitution (other than Chapter II) has been contravened and to make a declaration accordingly:

Provided that the High Court shall not make a declaration in pursuance of the jurisdiction conferred by this subsection unless it is satisfied that the interests of the person by whom the application under the preceding subsection is made or, in the case of other proceedings before the Court, a party to those proceedings, are being or are likely to be affected.

(3) Where the High Court makes a declaration in pursuance of the preceding subsection that any provision of the Constitution has been contravened and the person by whom the application under sub subsection (1) of this section was made or, in the case of other proceedings before the Court, the party in those proceedings in respect of whom the declaration is made, seeks relief, the High Court may grant to that person such remedy, being a remedy available against any person in any proceedings in the High Court under any law for the time being in force in Solomon Islands, as the Court considers appropriate.

(4) Nothing in this section shall confer jurisdiction on the High Court to hear or determine any such question as is referred to in section 52 of this Constitution otherwise than upon an application made in accordance with the provisions of that section."

Although the case of Kenilorea -v- Attorney General involved a constitutional issue entitling him to come to the Court and to seek redress, I'm of the view that the test of legal standing as stated in section 83 of the Constitution is the test of legal standing to be applied not only in constitutional cases but also in any other proceedings before the court. This is because the Constitution is the Supreme law and all other laws must be construed so as to conform with the Constitution.

When one turns to section 5 of the Solomon Islands Independence Order 1978, it is provided that:

"...the existing laws shall have effect on and after the appointed day as if they had been made in pursuance of the constitution and shall be construed with such modifications, adaptations, qualifications and exceptions as may be necessary to bring them into conformity with the Solomon Island Act 1978 and this Order."

The existing legal provisions on the practice of applying for prerogative orders are contained in Order 61 of the High Court (Civil Procedures) Rules, 1964. Rule 4(2) of Order 61 provides that 'all persons directly affected' must be served with the Notice of Motion and the relevant documents on the action. This purpose of the rule is to enable such persons to be heard. There is therefore that requirement that all persons directly affected to be served and not just the parties to the action. I am bound to construe those rules so as to conform with the Constitution. In so doing I would say that a person need not be a party to an action before he can be said to be directly affected by a decision. A person directly affected is the person who is aggrieved and thus have sufficient interest to maintain proceedings for judicial review in the form of certiorari. He need not necessarily be a party to the decision under review.

Unlike in England, we have a written Constitution here which is the Supreme law. All other laws must conform to it. The starting point must, inevitably, be the Constitution in any construction of legal provisions. Although the Kenilorea -v- Attorney General case is distinguishable on its facts, the test of locus standi is applicable to the determination of the legal standing of the applicant in the present case.

The doctors, 22 of them, resigned on 3/8/92 due to a dispute with the Government over their terms and conditions of service. Of the 22 doctors, 14 have now returned to work in the Government employment. The other eight (8) of whom the applicant represents, did not return to work in the Government Service. They have now set up their private medical practice.

It is not the purpose of these proceedings to determine the merits of the disputes between the Government and the doctors. It is enough to say that the terms and conditions of service which the doctors were seeking involve the issues of adequate remuneration for services rendered, appointments and promotions, and host of other matters which particularly affected doctors. In other words, the issues raised directly affected all the doctors in Government employment. The eight doctors were directly affected by the dispute with the Government over their terms and conditions of service up to the time they resigned from the Government employment.

The next question is: are those doctors still affected by reason of the fact that Public Service Commission has now appointed an expatriate to a very Senior post at the Central Hospital? What interest do they have? The answers to those questions cannot be viewed in isolation of the circumstances which gave rise to Dr. Roy Goonewardene's appointment.

It would be wrong to shut out the applicant from the doors of the court using the argument that because they are no longer working for the Government they have no right to come to the Court and to challenge the Public Service Commission decision. It will be a sad day for the law if such were the basis for challenging the decision of a public authority. Any body with sufficient interest must be allowed to come and stand in court and to say why he is disputing a decision of a public authority.

The applicant stated, and not disputed by the Respondent, that the recruitment of Dr. Roy Goonawardene was a direct consequence of their dispute with the Government. The applicant and the other seven doctors were part of that dispute and in fact they are still part of the dispute which has not yet been resolved (not that I can see from the evidence before the court) and which has led them to resign and further led to the appointment of Dr. Roy Goonawardene by the Government as Chief Consultant Surgeon.

The circumstances as I find them to be, satisfy the court that the applicant has sufficient interest in the matter. He is an aggrieved person as well as having sufficient interest to come to this court and raise concern about the Public Service Commission's decision. He shares that with other doctors in Solomon Islands. It so happens that he comes to this court representing an identifiable few. Access to the courts is a most important safeguard for ordinary citizens especially as government and other public bodies have such immense powers and influence. Aggrieved persons must be allowed to come to court in order to ensure that those powers and influence are exercised in accordance with law. Of course the court should refuse to hear a mere busy-body and other mischief-makers who meddle in other people's affairs. I am satisfied that the applicant is not in such a category.

I exercise the courts discretion and rule that the applicant has locus standi in the action and ought to be allowed to be heard.

(G.J.B. Muria)
ACTING CHIEF JUSTICE