In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, Section 57; The Independent State of Papua New Guinea and The Chief Migration Officer, Rabura Mataio v the Transferees and Amnesty International (2015) SC1451

• Jurisdiction: Papua New Guinea
• Judge: Sakora J, Gavara-Nanu & Ipang JJ
• Judgment Date: 05 August 2015
• Court: Supreme Court
• Citation: (2015) SC1451
• Docket Number: SCA No. 31 of 2014
• Year: 2015
• Judgement Number: SC1451

Full Title: SCA No. 31 of 2014; In the matter of enforcement of basic rights under the Constitution of the Independent State of Papua New Guinea, Section 57; The Independent State of Papua New Guinea and The Chief Migration Officer, Rabura Mataio v the Transferees and Amnesty International (2015) SC1451

Supreme Court: Sakora J, Gavara-Nanu & Ipang JJ

Judgment Delivered: 5 August 2015

SC1451

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SCA No. 31 OF 2014

IN THE MATTER OF ENFORCEMENT OF BASIC RIGHTS UNDER THE CONSTITUTION OF THE INDEPENDENT STATE OF PAPUA NEW GUINEA, SECTION 57

BETWEEN:

THE INDEPENDENT STATE OF PAPUA NEW GUINEA

First Appellant

AND

THE CHIEF MIGRATION OFFICER, RABURA MATAIO

Second Appellant

AND

THE TRANSFEREES

First Respondents

AND

AMNESTY INTERNATIONAL

Second Respondent

Waigani: Sakora J, Gavara-Nanu & Ipang JJ

2014: 19th September

2015: 5th August

APPEAL – Practice & Procedure – Proceedings initiated by a judge – Constitution; s. 57 (1) – Asylum seekers – Human rights – Judge initiating proceedings to “Inquire” into possible human right abuses – Judge calling witnesses – Expert witness a personal friend of the judge – Long term association with the Expert witness not disclosed by Judge - Judge directing Public Solicitor to represent asylum seekers.

APPEAL – Practice & Procedure – Application for a judge to disqualify himself – Apprehended bias – Refusal by a judge to disqualify himself – Duty of the judge to disclose possible conflict of interest - Circumstances under which a judge should disqualify himself.

APPEAL – Practice & Procedure – Judge issuing directions to progress the case without hearing the parties - Whether judge breached principles of natural justice – Constitution; s. 59.

APPEAL – Practice & Procedure – Grounds of appeal – Issue arising not raised in the grounds of appeal – Such issue going to the jurisdiction of the Court – Power of the Supreme Court to decide the issue.

APPEAL – Practice & Procedure – Proceedings commenced under a Rule of the National Court – Constitution; s. 184 – Such Rule inconsistent with a Constitutional Law – Proceedings unconstitutional and an abuse of process.

Cases cited:

Papua New Guinea Cases

Amaiu v. Commissioner of Corrective Institutions and the Independent State of Papua New Guinea [1983] PNGLR 87

Avia Aihi v. The State (No.1) [1981] PNGLR 81

Belden Namah MP, Leader of the Opposition v. Pimbink Pato MP, Minister for Foreign Affairs and Immigration & Ors (OS (HR) No.9 of 2013) (Unnumbered)

Consort Express Lines Ltd v. Namane [2001] PNGLR 71

Constitutional Reference No. 1 of 1977 [1977] PNGLR 362

Fedelis Agai v. Buckly Yarume [1987] PNGLR 124

Gobe Hongu Ltd v. National Executive Council [2000] PNGLR 372; NI964

Gregory Puli Manda v. Yatala Ltd (2009) SC974

Application of Herman Leahy (2006) SC855

Application of Herman Leahy (2006) SC981

John Nilkare v. Ombudsman Commission (1996) SC498

Koang No.47 Ltd v. Mondo Merchants Ltd and Melpa Properties Ltd (2001) SC675

Kumagai Gumi Co. Ltd v. National Provident Fund Board of Trustees (2005)

SC776

Kwame Okyere Boateng v. The State [1990] PNGLR 342

Louis Medaing v. Ramu Nico Management (MCC) Ltd (2012) SC1144

MVIT Ltd v. Yama Security Services Ltd (2009) SC1004

Peter Yama v. Bank South Pacific Limited (2008) SC921

PNG Pipes Ltd & Anor v. Mujo Sefam, Globes Pty Ltd & Anor (1998) SC592

Pruaitch v. Manek (2012) SC1168

Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329

Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea,

Utula Samana and Samson Kiamba [1981] PNGLR 396 at p. 408

Re Conditions at Buimo Corrective Institution [1988-89] PNGLR 266

Re Contempt of Court; Re Assistant Registrar Philip Kaumba (2004) N2763

Reference by Dr Allan Marat in the matter of Prime Minister and NEC Act, 2002 Amendments (2012) SC1187

Reference by East Sepik Provincial Executive (2011) SC1154

Robinson v. The State [1986] PNGLR 307

Sela Gipe v. The State [2000] PNGLR 271

Special Reference by Morobe Provincial Executive; re Election of Governor General (2012) SC108

Thomas Kavali v. Thomas Hoihoi [1984] PNGLR 182

Toll v. The State (1989) SC378

Overseas cases cited:

Carriters v. Connolly and Ors; Criminal Justice Commission & Anor v.

Connolly and Anor - BC 9703497: [1998] Qd R389

Livesey v. New South Wales Bar Association (1983) 151 CLR 288

Medicaments (No.2) [2001] 1 WLR 700

R v. Altrincham Justices; Ex parte Pennigton [1975] 2 All ER 78

R v. Liverpool City Justices; Ex parte Topping [1983] 1 WLR 119

Saxmore Co. Ltd v. Wool Board Disestablishment Co. Ltd (2010) 1 NZLR 35

Smith v. Roach [2006] HCA 36; (2006) 80 ALJR 1309

Webb v. R (1994) 181 CLR 41

Counsel:

I. Molloy with T,Boboro for the Appellants.

E. Wurwur, for the First Respondent.

M. Peipul, for the Second Respondent.

5th August, 2015

1. SAKORA J: I have had the benefit of perusing the draft judgments of my brothers Justices Gavara-Nanu and Ipang, and as such, I am in complete respectful concurrence with the conclusion they each reached, and the reasons for this. Whilst there is, therefore, no need to add anything further, I wish merely to make brief comments here in relation to these, if only to emphasise the underlying principles.

2. In respect of the jurisdictional issue vis-a-vis s 57 (1) Constitution, I agree that the learned primary judge fell into grievous error when he invoked and proceeded under this provision. With respect, Justice Gavara-Nanu quite properly and succinctly dealt with this issue in his exhaustive treatment of the pertinent case law enunciations of the applicable principles governing the circumstances under which this serious 'human rights' provision should be invoked.

3. As it was, the initial error in assuming and exercising jurisdiction in the manner complained of in his Honour's refusal to disqualify himself from proceeding further, led to breaches of the well-recognised principles of 'natural justice'.

4. Whilst the jurisdictional issue described by my brother Justice Gavara-Nanu as being the 'threshold' issue in this appeal, for this ultimate and final court of the land to ignore or evade and not deal with it in the way my brothers have done so would, in my respectful opinion, constitute a serious dereliction of the court's duties and responsibilities under the Constitution. It would amount to an abdication by this court of its constitutional mandate.

5. In any case, there is the specific vesting of such power under s 155 (4) Constitution. The administrative law analogy of what the learned primary judge did (or did not do) to 'fall into error' can be described as being ultra vires the Constitution. And this court, under the Constitution and pursuant to our individual Judicial Oaths and Declarations of Office, is morally, ethically and judicially bound to protect it and uphold the laws promulgated under it.

6. In respect of the grievance of the appellants as to his Honour’s refusal of their application to disqualify himself, once again my two brothers have, with respect, discussed the pertinent principles adequately. It is not without significance to note that the factual circumstances giving rise to the application of the appellants are not in dispute at all. In my respectful opinion, his Honour, in invoking a purported power under s 57 (1) Constitution, proceeded in a judicial or quasi-judicial methodology normally associated with the inquisitorial procedures of continental (European) civil systems. A system diametrically opposed to the common law adversarial fact finding and law application procedures we are familiar with here.

7. Not independent arbiters, the French judges

To use the most obvious example where a different philosophy regarding legal process obtains.

11are part of the machinery of the State, and courtroom procedure, for example in criminal trials, is characterised by the inquisitorial method.

Known as the enquete.

22 Presiding judges actively, quite vehemently and acidly, participate in the courtroom questioning, preceded by bringing and calling of witnesses.

8. Contrasted with that is the system we are intended to operate under, which, in essence, is where the judge functions as an independent arbiter between the State and the individual or between the litigating parties. This is a concept basic to the common law proceedings. Jurisprudential theory and practice has it that this system has been in vogue since its adoption in Rome in the 4th or 5th century BC, “where - for better or for worse, and quite conceivably the latter – the judge’s task changed from determining the truth to the umpiring of a competition.”

Professor Max Radin, “The Permanent Problem of the Law”, 15 Cornell Law Quarterly, 10-11 (1929), cited by Henry J Abraham: The Judicial Process, 6th ed; Oxford (1993), p 97....