Poraiwai v Acting Attorney-General; Kenilorea v Acting Attorney-General [2007] SBHC 67; HCSI-CC 20 & 30 of 2007 (12 July 2007)

HIGH COURT OF SOLOMON ISLANDS

Civil Case Nos. 20 and 30 2007

JOE PORAIWAI

-v-

THE ACTING ATTORNEY-GENERAL

AND

SIR PETER KENILOREA KBE, PC

-v-

THE ACTING ATTORNEY-GENERAL

Date of Hearing: 05 July 2007
Date of Ruling: 12 July 2007

A. Nori for J. Poraiwai of the Plaintiff
Public Solicitor (by R. Firigeni with D. O’Shea) for Sir Peter Kenilorea KBE, PC
The Acting Attorney-General

RULING on questions posed in relation to the Constitutional powers to appoint the Ombudsman in accordance with Section 96.

Declarations pursuant to Order 58 Rule 2 of the High Court Rules

Brown, J: The applicant Mr. Joe Poraiwai was recommended for appointment as the Ombudsman on the advice of the Chairman of the Ombudsman Appointment Committee on the 9 November 2006. He has not been appointed by the Governor-General in accordance with s. 96(2) of the Constitution and comes to this court seeking redress by way of a declaration of right to the appointment. For by s. 96(2) the Constitution says;

"s. 96(2) The Ombudsman shall be appointed by the Governor-General acting in accordance with the advice of a committee consisting of the Speaker, the Chairman of the Public Service Commission and the Chairman of the Judicial and Legal Service Commission".

The jurisdiction of this court to hear such complaint and make appropriate declaration and order for relief is plain on a reading of s. 83 of the Constitution. The manner in which an aggrieved person shall institute his complaint is provided for by O. 58 r 2 of the High Court Rules.

By originating summons then Mr. Poraiwai posed particular questions for this courts answer in relation to the meaning and intent to be accorded s. 96(2), and consequent upon such answer, declarations recognising that Mr. Poraiwai is entitled to the appointment as Ombudsman and that any decision to readvertise the post is wrong.

Mr. Nori, who represented Mr. Poraiwai, provided the court with considerable assistance. He addressed relevant cases which throw light on the meaning and intent of that particular section 96.

The Overriding Principle of Separation of Powers

I am satisfied the thrust of his approach correctly identified the overriding principle in this case, that one organ of government should not control or interfere with the exercise of its function by another organ.

In this case, Mr. Nori points to the unnecessary advice of the Acting Attorney-General (the "Attorney"), who wrote to the Governor-General on the 14 December 2006, after the Ombudsman Appointment Committee had given its advice. For as a result of an approach by the Prime Minister, His Excellency the Governor-General summoned Ms. Karen Galokale the Policy Officer (Legal) in the Office of the Prime Minister and Cabinet and as a consequence of what he was told, His Excellency then wrote to the Attorney, for her advice. On the same day the Attorney wrote to His Excellency and said in part.

"Initially the position I took was for your Excellency to endorse the appointment by virtue of this section (of the Constitution) and for the complainants to seek redress through the normal legal process. However, in the light of new information which suggests that the process in which the Committee identified the successful applicant to the post is fraught with allegations of unfairness, bias undue process and irregularities I have now decided to withhold the preparation of the instrument for appointment until I have reassessed the situation thoroughly.

As a consequence the Governor-General refrained from exercising his power to appoint, despite correspondence from the Chairman of the Committee. It is from the act of the refusal to appoint which has given rise to these proceedings and associated proceedings of the Chairman of the Committee the Right Honourable Sir Peter Kenilorea, the Speaker of the House of Parliament, who also seeks declarations of similar import. It has been agreed that the Right Honourable Speaker’s summons shall await my decision in Mr. Poraiwai’s proceedings since his has the personal interest.

I have read the material filed by the applicant and the Chairman of the Committee very carefully, and those affidavits of Ms. Nuatali Tongarutu the Acting Attorney-General and that of Ms. Karen Qalokale, the Policy Officer (Legal) in the Office of the Prime Minister. (Although there has been no appearance by the Attorney, Mr Nori chose to read those affidavits in his case, for they had been filed in the proceedings).

They were all read carefully for the very good reason that the Attorney, in her letter of the 14 December 2006 (set out in part above), criticised the process of the Committee for that it was "fraught with allegations of unfairness, bias, undue process and irregularities".

The Committee comprised the Speaker of the House, Sir Peter Kenilorea, the Chairman of the Judicial and Legal Service Commission, the Honourable the Chief Justice Sir Albert Palmer and the Chairman of the Public Service Commission Mr. Edmund Andresen.

I should say I find the suggestions or allegations upon which the Attorney based her advice to refuse to act in accordance with the Committee’s advice, to be wholly unsubstantiated and in the circumstances, a shameful statement interpolated into the letter to His Excellency, the Governor-General. Whilst the writer may protest that the letter contained no actual charge against the three individuals of the Committee, the allegations nevertheless, by their farrago of falsity, are tantamount to slanderous. It must be seen, and from the Governor-Generals actions by further enquiry, it is doubtful, whether the Attorney was acting sufficiently properly for these three others reputation to rest upon her statements.

Much was said of the failure of the applicant Mr. Poraiwai, to match the criteria advertised for the Office of the Ombudsman. For the "notice of vacancy" (which formed part of Mr. Poraiwai’s affidavit, for that he responded to that advertisement), sought, amongst others, academic qualification of Law or Administration/Management at Bachelor level. He admittedly has a Certificate in Legal Studies, but does not assert any Bachelors Degree.

The issue however, is whether the criteria advertised was a prerequisite under the Constitution and while the functions of the Ombudsman may suggest particular knowledge as necessarily useful in the office; the Constitution does not qualify eligibility by reference to specific criteria. The Committee then cannot be restricted by the purported criteria in the Vacancy Notice and clearly was not. Whilst mistake was suggested on the part of the Committee, none has been shown.

On the face of the letter of the 9 November 2006, under hand of the Chairman of the Committee Sir Peter Kenilorea to His Excellency Sir Nathaniel Waena, the advice to appoint Mr. Joe Poraiwai in accordance with s. 96(2) was made manifest.

The Law

Mr. Nori again, correctly pointed to that overriding principle, when speaking of the Ombudsman’s function set out in s. 97(1), he said that the Constitution provides for the independence of the Office by unifying the respective interest of the three Heads of Government; the Legislative the Judiciary and the Executive Arm (through the Public Service Commissioner) in the appointment Committee under S. 96(2); thus accommodating what may perhaps be perceived as conflicting interests of the three. Once a consensus is reached, the chosen candidate is seen by the Committee as a fit and proper person for the post. In the context of the section, the choice of a Committee comprised of representatives of the three arms, if you like, of government, reflects the public interest in ensuring no one arm has been advantaged by perceived or actual bias in the selection process.

In that sense the faculty or power considered by the High Court of Australia, in Re Davis’ case rests not with the Governor General but with the Committee. Justice Starke said when considering the function of the Supreme Court required by S. 10 of the Legal Practitioners Act 1898-1936 (NSW) on application of a candidate "whom the Board shall approve as a fit and proper person to be made a barrister shall be admitted as a barrister by the Court on any day appointed...", that the Court "must have the approval of the Board but upon the Court is placed, in the end, the duty and the responsibility of admitting persons as barristers". (In Re Davis (1947)75 CLR 409 per Starke J at 418). That "duty" to which Justice Starke alludes is a duty resting on the Committee in this country.

For the context in which the word "shall" is used in the legislative section is fundamental to its construction. In our case, where the Committee is comprised of those three representatives, I find that the use of the word "shall" (which predicates the act of the Governor General’s appointment of the Ombudsman), does not confer a faculty or power in His Excellency beyond the imperative duty to do the prescribed act to appoint. It is in the phraseology of Justice Starke, merely ministerial to act on the advice of the Committee for to do otherwise would presume something in the nature of the thing to be done which is not there. In other words, the power of appointment does not afford a right in His Excellency to seek advice or independently exercise a judgment.

Once that advice has been tendered, the Governor-General is obligated by virtue of S. 31(1) (in exercise of his function to appoint the Ombudsman), to act in accordance with that advice of the Committee. For in this instance, S. 96(2) specifically provides the exception to that obligation to be found in S. 31(1) to follow the advice of Cabinet (or of a Minister acting under the general authority of Cabinet). This is not a situation where the Governor-General has discretion, envisaged by S. 31(2) (where the Governor-General may act after consultation).

In this case, it would seem the Governor-General has after consultation with Ms. Karen Qalokale and the Attorney (the principle legal adviser to the Executive arm of the Government -vide s. 42(1)) declined to act in accordance with the properly tendered advice of the Committee pursuant to S. 96(2). This illustrates perhaps interference of a political nature which may be said to unbalance the particular composition of the Committee.

It would be presumptuous of me to seek to impute a basis for the exercise of His Excellency’s function, to decline to act in accordance with the advice, (whether based on S. 31(2) for instance or in his own deliberate judgment) and there is no need to consider that.

The Court of Appeal does make plain that where the Constitution explicitly mandates the Governor-General to act on advice he shall act in accordance with such advice unless it lacks legitimacy where the workings of Parliament are concerned and that consideration does not arise in this case.

(See Francis Billy Hilly anors v Moses Puibangara Pitakaka anors; Court of Appeal 299/94 judgment dated 22 October 1994).

As well, Mr. Nori says the use of the mandatory phrase "shall be appointed" obligates the Governor-General to appoint in that certain and specific way; "in accordance with the advice". (See Speaker of National Parliament v Danny Philip (1990) Court of Appeal 5/1990). For that is the plain meaning of the words. I need not say more than the use and meaning of the phrases, "shall be appointed" and "in accordance with the advice" has been canvassed in these courts and they admit to this plain meaning.

Where others purport to advise the Governor-General in circumstances where the appointment of the Ombudsman is contemplated, the risk to that independence of office of the Ombudsman is obvious. The wording of s. 96(2) is clearly the Constitutional approach adopted by the people of the Solomon Islands, to obviate that risk by balance in the selection Committee. There is no discretion resting with the Governor-General in the circumstances of S. 96(2) so that there is no need to consider Mr. Nori’s argument about subsection (3).

For these reasons the answers to the questions shall be;

Q 1. Whether the Governor-General has the discretionary power to refuse or ignore the advice of the Committee established under section 96(2) of the Constitution ("Committee") upon being advised by the said Committee that the Plaintiff/Applicant should be appointed as Ombudsman of Solomon Islands;

Answer: No

Q 2. If the answer to 1 herein is in the negative, whether the Plaintiff/Applicant should be appointed by the Governor General as the Ombudsman of Solomon Islands for the reasons that-

(a) he was the candidate selected by the Committee; and

(b) following his selection, the Committee had advised the Governor General to appoint him to the post of Ombudsman as required under section 96(2) of the Constitution.

Answer: Yes

Q 3. Whether the requirements carried in the advertisement for the post of Ombudsman in Public Service Vacancy Notice No. 35/06 – OMBUDSMAN in about the middle of 2006 that a candidate applying for the said post shall have the academic qualification of Bachelor of Laws and Bachelor of Public Administration degrees were constitutionally required?

Answer: not necessary to answer

Q 4. If the answer to 3 is in the negative, whether the Committee herein referred acted lawfully and constitutionally in ignoring the said academic requirements and by proceeding to advise the Governor General to appoint the Applicant as Ombudsman who lacks those academic qualifications?

Answer: not necessary to answer

I consequently make declaration that the applicant is the person lawfully and constitutionally entitled to be appointed to the Office of Ombudsman by the Governor-General in accordance with that advice of the Committee dated 9 November 2006 pursuant to S. 96(2) of the Constitution.

THE COURT