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

9.	It is the long-held expectation of the English common law legal-judicial system that our judges are or ought to be the awesome embodiment of wisdom, independence and impartiality. Academic and judicial literature on the subject of independence and impartiality of judicial office-holders is quite extensive. But with respect, the statements and restatements of the underlying principles about judicial independence and impartiality that are reproduced hereunder are not from academic commentators, but from the highest judicial office-holders of the common law world in recent times.

10.	 A former Chief Justice of the High Court of Australia, Sir Gerard Brennan, articulated the relevance of an independent and impartial judiciary in upholding the rule of law thus: 

The reason why judicial independence is of such public importance is that a free society exists only so long as it is governed by the rule of law . . . the rule which binds the governors and the governed, administered impartially and treated equally all those who seek its remedies or against whom its remedies are sought. However vaguely it may be perceived, however inarticulated may be the thought, there is an aspiration in the hearts of all men and women for the rule of law. That aspiration depends for its fulfilment on the competent and impartial application of the law by judges. in order to discharge that responsibility, it is essential that judges be, and be seen to be, independent. We have become accustomed to the notion that judicial independence includes independence from the dictates of the Executive Government . . . But modern decisions are so varied and important that independence must be predicated of any influence that might tend or be thought reasonably to tend to a want of impartiality in decision-making. Independence of the Executive Government is central to the notion, but it is no longer the only independence that is relevant. 

11.	Lord Bingham of Cornhill, Lord Chief Justice of England, considered that the concept of an independent and impartial judiciary is now broader in scope: 

Any mention of judicial independence must eventually prompt the question: independence of what? The most obvious is, of course, independence of government. I find it impossible to think of any way in which judges, in their decision-making role, should not be independent of the legislature, save in its law-making capacity. Judges should not defer to expressions of parliamentary opinion, or decide cases with a view to either earning parliamentary approbation or avoiding parliamentary censure. They must also, plainly, ensure that their impartiality is not undermined by any other association whether professional, commercial, personal or whatever. (underlining mine)
 
12.	A former Vice President of the International Court of Justice, Professor Christopher G Weeramantry, stated in 2007: 

A judiciary of undisputed integrity is the bedrock institution essential for ensuring compliance with democracy and the rule of law. 

13.	The Bangalore Principles of Judicial Conduct have "increasingly been accepted by the different sectors of the global judiciary and by international agencies interested in the integrity of the judicial process. In the result, the Bangalore Principles are seen more and more as a document which all judicial and legal systems can accept unreservedly. 

14.	Lord Devlin, writing extra-judicially, said that judicial impartiality, and the application of judicial impartiality, are "supreme judicial virtues".  

15.	From these pronouncements and judicial opinions dating back to the mid 19th century England cases concerning personal interests of judges and magistrates vis-a-vis their judicial functions, have emerged what we now accept as the 'The Disqualification Principle". And case law is replete with many types of judicial interest in a case which may, or ought to, preclude participation in. 

16.	The old and oft-cited English case of Dimes v Grand Junction Canal involved the Lord Chancellor Cottenham presiding over a case that concerned a company in which he was shareholder. The House of Lords quashed his Lordship's decision on the basis that a judge who had a financial interest in the outcome of a case should not sit in judgment on it. 

17.	The Disqualification Principle, applying in its manifold "interests" circumstances, underpins the important and crucial public policy consideration that: Public confidence in the judicial system and in the administrative decision-making process requires that decisions are made impartially. Under the principle, it is expected that decision-makers should voluntarily "recuse" themselves, or be disqualified by formal application by a party, from hearing a case, deciding a matter or making a decision if they lack independence or impartiality. 

18.	Furthermore, where an apprehension of bias is demonstrated, the relevant decision-maker should disqualify themselves and allow the case to be heard and determined by another judge. Needless to say, the issue of judicial independence is related to the disqualification principle, because of an appearance of bias might arise where the judge lacks independence.

19.	In the Australian High Court case of Johnson v Johnson, the guiding principle, the disqualification principle was said to be most clearly stated in the context of judicial bias. A majority of 5 judgessaid that the test for apprehension of bias was: 

whether a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial and unprejudiced mind to the resolution of the question the judge is required to decide. 

20.	The public confidence rationale explains the test. And the principle or maxim that historically underpinned the approach of the courts to disqualify was and is: nemo debet esse judex in sua propia causa, which reads in English as: No man ought to be a judge in his own cause. 

21.	The constitution-makers of our Independence Constitution were very mindful of the need to have in place an independent judiciary. They expressed so in no uncertain terms: 

It is a fundamental principle of any free country that the men and women who sit to hear and determine disputes that come before them as members of the judiciary should not be improperly influenced to make decisions for or against any particular person or group. The Committee has made a number of recommendations in this chapter and elsewhere in the report, designed to ensure that people of Papua New Guinea are governed by law, not according to the whims of the powerful individuals or groups. That aim, in fact, underlines the very idea of having a constitution at all. 
 
22.	This was a case that ought not have been embarked upon in the manner the learned primary judge did. In doing so, it raised serious issue of proper jurisdiction as extensively dealt with by my brother Justice Gavara-Nanu. 

23.	The initial error in assuming jurisdiction, and proceeding to exercise it in the manner he did, naturally raised, in my respectful opinion, issues about his Honour's impartiality. 

24.	I concur with my brothers that the appeal should be upheld, and consequential orders be made as suggested.

25.	Gavara-Nanu J: This is an appeal against the whole of the decision of Cannings J, given on 17 March, 2014, at Lorengau, in respect of the proceeding titled: HROI No.1 of 2014: In the Matter of Enforcement of Basic Rights under the Constitution of the Independent State of Papua New Guinea, s.57, (proceeding HROI No.1 of 2014), dismissing the appellants' application for his Honour to disqualify himself on the grounds of apprehended bias and breach of natural justice.

26.	 It is to be noted that proceeding HROI No.1 of 2014, was initiated or commenced by the learned primary judge purportedly under s. 57 (1) of the Constitution. Section 57 (1) is in these terms:

57. ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS

(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any other court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority. 

27.	The learned primary judge construed the phrase "own initiative" in subsection (1) as granting power to the National Court to commence the proceeding on its own volition. Thus, his Honour used the provision to commence proceeding NROI No. 1 of 2014, purportedly to inquire into possible breaches and abuses of the rights and freedoms of the asylum seekers (transferees) held at the Manus Island Detention Centre (MIDC).
 
28.	The learned primary judge summoned certain persons to appear before him and issued Directions without first hearing the parties. The appellants unsuccessfully applied for his Honour to disqualify himself claiming that he would not be able to bring an impartial mind to decide the issues before him. The appellants have therefore brought this appeal.

29.	The grounds of appeal are: 

1.0 His Honour erred in law and fact when he overruled that submission that he was a party, prosecutor, witness, counsel and Judge when in fact the entire proceedings clearly makes him so. 

1.1 His Honour, invoked his powers under Section 57 (1) of the Constitution to commence the Human Rights proceedings. 

1.2 His Honour made allegations in the prescribed Form 126 when initiating the Human Rights proceedings.

1.3 His Honour issued summons and made various interlocutory orders and gave various directions, at times, unilaterally. 

1.4 His Honour presided and continues to preside over the matter.

1.5 His Honour, acted as the complainant or accuser, is a party, prosecutor, a witness, counsel and Judge in the proceedings which places him in conflict. 

1.6 His Honour set a tight time frame which clearly denied the applicants the right to properly and fully defend the allegations of alleged breaches of Human Rights.

2.0 His Honour erred in law and fact and acted in breach of natural justice principles as enshrined under Section 59 of the Constitution when he failed to disclose to the Applicants his personal relationship and or friendship with a key expert witness, Dr Crouch-Chivers prior to appointing him as a Specialist Consultant in Clinical and Public Health on 6 March, 2014.

3.0 Any reasonable and fair minded person would have inferred an apprehension of bias regarding his Honour's relationship with Dr Crouch –Chivers, on the following grounds:

 3.1 His Honour unilaterally appointed Dr Crouch-Chivers on March, 2014, without inviting any submissions by the Applicants or the parties; 

 3.2 The fact of the personal relationship and or friendship of his Honour and Dr Crouch-Chivers was a fact his Honour had full knowledge of at the time of appointing him on 6 March, 2014, but he did not disclose that fact to the Applicants or the parties because he "considered it unnecessary to disclose".

 3.3 It was only after the filing of the Notice of Motion by the appellants to recuse his Honour on 14 March, 2014, that his Honour, decided to give disclosure on Monday, 17 March, 2014. 

 3.4 Dr Crouch-Chiver's report as an expert will significantly influence and affect the likely decision or finding in the inquiry and the fact of his relationship with his Honour, raises an apprehension of bias, which is not fanciful but reasonable. 

 4.0 Such other grounds which may arise during the course of the hearing of the appeal.

30. The first issue that arises for determination is whether the learned primary judge had power under s. 57 (1) of the Constitution to initiate or commence proceeding HROI No.1 of 2014 at all. This is a threshold issue which underpins all the issues arising in this appeal and goes to the jurisdiction of the court. Thus, although the issue is not raised as a ground of appeal, this Court as the highest court of the land with unlimited jurisdiction, is invested with inherent discretionary power under s. 155 (4) of the Constitution to consider and determine the issue as the justice of the case requires: Reference by East Sepik Provincial Executive (2011) SC.1154 and Avia Aihi v. The State (No.1) [1981] PNGLR 81. 

31. It is important to note that proceeding HROI No. 1 of 2014 was issued under Rule 8 of Human Right Rules, 2010, which falls under Order 23 of the National Court Rules, which sets out the Human Rights Jurisdiction of the National Court. It is convenient to set out the terms of Rule 8 in full:

 8. Commencement of proceedings by the Court. 

 (1) Where a judge observes, or is informed by the Registrar, the Sheriff or one of their officers, of facts which may constitute a breach of basic rights the Court may commence proceedings on its own initiative.

 (2) Where the National Court commences proceedings on its own initiative in accordance with Section 57 of the Constitution 

 (a) the file reference shall be "HROI" and the responding party, if any, shall be called "the respondent," and 

 (b) subject to this Rule, the originating process shall be in Form 126 or in such other terms as the Court considers appropriate.

 (3) Nothing in these Rules derogates from the power and duty of the National Court under Section 57 (1) of the Constitution to, on its own initiative, enforce the rights and freedoms referred to in Division III.3 (basic rights) of the Constitution in an informal or such other manner as the Court thinks fit, especially in urgent cases, where it is not practical to comply with formal requirements for commencement of proceedings. 

 (4) Where the Court exercises a power under Sub-rule (2) the Court shall ensure, that as soon as the circumstances permit, not being later than seven days after the exercise of such power, a reference Form 126 is filed and thereafter served on the respondents. 
 
32. Pursuant to sub-rule (2) (b), the learned primary judge used Form 126 to commence the proceeding (pp. 158-159 of the Appeal Book). His Honour regarded the proceeding as an inquiry (pp. 163-164 of the Appeal Book). Section 57 (3) of the Constitution was invoked by the learned primary judge to issue summonses against certain individuals to appear before the Court. Section 57 (3) is in these terms:

 (3) A court that has jurisdiction under Subsection (1) may make all such orders and declarations as are necessary or appropriate for the purposes of this section, and may make an order or declaration in relation to a statute at any time after it is made (whether or not it is in force).
 
33. As I said, his Honour construed s. 57 (1) as conferring jurisdiction on the National Court to commence proceeding HROI No. 1 of 2014 on its own volition (p. 161 of the Appeal Book).
 
34. With the greatest of respect, I am of the firm view that s. 57 (1) does not confer power on either the National Court or the Supreme Court to initiate or commence proceeding on their own initiative or to unilaterally commence a proceeding; nor, does it confer power on a court to conduct an inquiry as was the case here. 

35. Section 57 in its heading provides for the – "enforcement of guaranteed rights and freedoms". In its specific terms, subsection (1) provides for the protection and enforcement of a right or a freedom. That is the purpose of any 'initiative' a court may in its discretion decide to take under subsection (1). In my respectful opinion an 'initiative' of a court under subsection (1) relates to its discretion as to an order or a declaration it may make in the particular circumstances of a case. Such an order or a declaration must be proper and reasonable and made according to law and the court must exercise its discretion judicially: Kumagai Gumi Co. Ltd v. National Provident Fund Board of Trustees (2005) SC776 and Avia Aihi (No.1) (supra). I am of the opinion that a proper exercise of power by a court under s. 57 (1) would involve the making of an order or a declaration only. It does not confer power on a court to commence or initiate a proceeding as was the case here. A line of case authority reinforces this view: Constitutional Reference No. 1 of 1977 [1977] PNGLR 362. In that case, the Supreme Court considered s. 57 (1) in the context of protecting the rights of a person arrested and detained on a charge, under s. 42 (2) of the Constitution. At p. 373, the Court said: 

"But the National Court under Constitution s. 57 (1), in the course of a trial of an offence, has power and, according to the circumstances of the case, may be bound to make an order or declaration that admissions obtained in breach of the Constitution s. 42 (2) should be excluded from evidence in the trial". (my underlining)

36. In the case of Ralph Rakhinand Premdas v. The Independent State of Papua New Guinea [1979] PNGLR 329, this Court considered s. 57 (1) in the context of protecting the applicant's rights whose permit to enter the country had been revoked by the Government. The Court at p. 361 said: 

"Under s. 57 (1) of the Constitution both the National Court and the Supreme Court have not only the right but the duty to protect and enforce the Constitutional rights and freedoms and s. 155 (4) confers upon both the National and the Supreme Court powers to make orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case. It follows that if there is no challenge on constitutional grounds there can be no appeal either from the decision of the Minister or the Committee of Review. But if there is a complaint that rights under the Constitution have been infringed the person aggrieved is entitled to come to the courts in order to enable them to inquire and ascertain whether he has any such rights and, if it is found that he does have such rights, the courts have a duty to give him relief if there has been an infringement of any of those rights." (my underlining) 

37. In Ready Mixed Concrete Pty Ltd v. The Independent State of Papua New Guinea and Utula Samana and Samson Kiamba [1981] PNGLR 396 at p. 408, Miles J considered s. 57 (1) in the context of protecting the rights of squatters from being unjustly deprived of their property. His Honour said: 

 "There are a number of decisions in the National Court to the effect that it is not possible for this Court to exercise its jurisdiction under s. 57 (1) and (3) to make an order which is necessary for the protection of a constitutional right or freedom unless this Court both interprets and applies the relevant constitutional provision: e.g. The State v. Kwambol Embogol (Unreported National Court judgment N91 dated 7th April, 1977); The State v. Peter Painke (No.2) [1977] PNGLR 141 and Re s. 42 of the Constitution and Jacob Hendrich Prai [1979] PNGLR 42. Conversely it seems to me that the jurisdiction may be exercised even though in the event the National Court may decide to refuse to make an order under s. 57, for whatever reason. To put it another way, the jurisdiction encompasses not only a positive finding that the constitutional right or freedom is violated as a necessary step towards its enforcement and protection. It also extends to a negative finding that there is in the instant case no infringement of any constitutional threat of freedom. (my underlining) 

38. This decision has been adopted with approval by this Court in Gregory Puli Manda v. Yatala Ltd (2009) SC974 and Koang No. 47 Ltd v. Mondo Merchants Ltd and Melpa Properties Limited (2001) SC 675. Having regard to the principles applied in these cases I conclude that the approach adopted by the learned primary judge was inconsistent with the intention and spirit of s. 57 (1). For the same reason, I also find that proceeding HROI No. 1 of 2014, is an abuse of the processes of the Court. I also find Order 23 Rule 8 of the National Court Rules to be inconsistent with Constitution, s.57 (1).

39. Order 23 Rule 8 of the National Court Rules was made by the Judges pursuant to s. 184 of the Constitution. Section 184 (1) relevantly provides:

 184. RULES OF COURT. 

 (1) The Judges of the Supreme Court or the National Court may make rules of court, not inconsistent with a Constitutional Law or an Act of the Parliament, with respect to the practice and procedure in and in relation to the Supreme Court or in the National Court, as the case may be. (my underlining)

40. Having found Order 23 Rule 8 to be inconsistent with s. 57 (1), pursuant to ss. 184 (1) and 155 (4) of the Constitution, I declare Rule 8 and Form 126 to be unconstitutional such that it should be struck out: Constitution Reference No.1 of 1977 (supra); Reference by East Sepik Provincial Executive (supra); Reference by Dr. Allan Marat, in the matter of Prime Minister and NEC Act, 2002 Amendments (2012) SC1187; Special Reference by Morobe Provincial Executive; re Election of Governor General (2010) SC1085 and Luis Medaing v. Ramu Nico Management (MCC) Ltd (2011) SC1144. 

41. In regard to s. 57 (3) of the Constitution, I find that it confers power on a court only to make an order or a declaration to enforce a statutory right or duty: Amaiu v. Commissioner of Corrective Institutions and the Independent State of Papua New Guinea [1983] PNGLR 87. The court's jurisdiction under s. 57 (3) is derived from s. 57 (1) and a court's power to make an order or a declaration under this subsection only arises upon an application being made by a party. Consequently, I find that the court's power under subsection (3) was wrongly invoked by the learned primary judge to issue summonses against certain individuals.

42. The second issue that arises for determination is the claim of apprehended bias and breach of natural justice against the learned primary judge. The hearing commenced on 27 February, 2014, when certain persons issued with a summons by the learned primary judge appeared before his Honour. The Court conducted a Directions hearing on that day. During the hearing his Honour made an opening statement in which he outlined the steps to progress the proceeding. The parties were not given an opportunity to be heard on the Directions that were issued. On 28 February, 2014, his Honour issued further Directions in which he named the respondents to the proceeding. Under one of the Directions, the Public Solicitor was directed to represent the transferees and provide them with legal aid. His Honour also directed the parties to file affidavits. The parties were then directed to appear before the National Court in Madang on 6 March, 2014. 

43. When the matter returned to Court on 6 March, 2014, his Honour issued more Directions including a Direction for the appointment of Dr Crouch-Chivers as an expert witness and a Specialist Consultant to inspect, examine and evaluate the provision of clinical and public health services at the MIDC.

44. On 14 March, 2014, the appellants filed an application by way of a notice of motion for his Honour to disqualify himself on the grounds of apprehended bias because of the manner in which he had conducted the proceeding and his previous decision in a related unnumbered case of Belden Namah MP, Leader of the Opposition v. Pimbink Pato MP, Minister for Foreign Affairs and Immigration & Ors, OS (HR) No.9 of 2013 (2013), in which his Honour made certain statements which were viewed as pre-empting the outcome in proceeding HROI No. 1 of 2014. The appellants claimed that his Honour had conducted himself as a party, prosecutor, witness, counsel and a judge, and that it was not possible for his Honour to conduct a fair hearing. In proceeding OS No. 9 of 2013, his Honour was alleged to have referred to s. 42 (2) of the Constitution and the 'detention' of the transferees at the MIDC, and allowed Henaos Lawyers access to the MIDC.

45. On 17 March, 2014, before the notice of motion was moved for his Honour's disqualification, his Honour disclosed for the first time to the parties that Dr Crouch-Chivers was a personal friend of his of long standing. His Honour stated that, he had not considered it necessary to disclose this association but was prompted to do so after he became aware that there was an application for his disqualification.

46. The application for his Honour's disqualification stressed the following three key points:

 (i) his Honour had acted in haste in issuing unilateral orders and Directions without allowing the interested parties to be heard.

 (ii) his Honour had pre-determined the issues because of his decision in proceeding OS No. 9 of 2013.

 (iii) his Honour's close relationship with Dr Crouch-Chivers.
 
47. His Honour refused to disqualify himself claiming that there was no basis for any claim of apprehended bias against him.

48. The proper test for a judicial officer to apply when deciding whether to disqualify himself on the ground of apprehended bias is whether a fair minded member of the public, having full knowledge of all the relevant facts, would have a reasonable apprehension or suspicion that he (the judicial officer) was biased in his decision. Putting it another way, the test is whether such a fair minded lay person might entertain a reasonable apprehension that the judicial officer might not have had an impartial mind in deciding the issue(s) before him: Gobe Hongu Ltd v. National Executive Council [2000] PNGLR 372 NI964, Peter Yama v. Bank South Pacific Limited (2008) SC921; PNG Pipes Ltd & Anor v. Mujo Sefam, Globes Pty Ltd & Anor (1998) SC592; Livesey v. New South Wales Bar Association (1983) 151 CLR 288; Webb v. R (1994) 181 CLR 4 and Medicaments (No.2) [2001] 1 WLR 700. 

49. A fundamental principle that should guide a judge or a judicial officer in deciding whether to disqualify himself, is that the parties to litigation must have full confidence in the integrity and impartiality of the court to administer justice: Carriters v. Connolly and Ors; Criminal Justice Commission & Anor v. Connolly and Anor - BC 9703497: [1998] Qd R389. 

50. To my mind, with respect, a judicial officer's close association with a party or a witness would erode the confidence of the litigants in the impartiality of the Court. Such an association would be a ground for disqualification of a judicial officer: see Boateng v. The State [1990] PNGLR 342. In that case, the association was formed through brief meetings between the wife of the trial judge and the prosecutrix in a rape case during the trial. The trial judge's wife who attended the trial met the prosecutrix by pure co-incidence. It was discovered during the meetings that the prosecutrix had previously taught at a school at the village where the trial judge's wife came from and had known the members of the judge's wife's family. The accused was convicted and sentenced to a term of imprisonment. The accused appealed the conviction and sentence on the ground, inter alia, of apprehended bias against the trial judge. The Supreme Court at page 346 said: 

The trial judge's wife has the right to attend any court and observe proceedings. But it is also to be observed that her association with parties or witnesses in a case might raise questions if she attends and sits in court or talks outside court with witnesses and parties. Whether or not a judge's wife actually influences the outcome of the case is important but it is not the point here. The point here is the reaction of a reasonable man or woman knowing the relevant facts that justice might have miscarried because of such association in or in the precincts of the court.

Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the outcome of the case. However impeccable a judgment or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case."
 
51. It should be noted that the judge in the above case was totally unaware of the meetings between his wife and the prosecutrix either during or after the trial.

52. In a situation where there is an existing relationship between a judge and a party or a witness, the judge has a duty to disclose to the parties the relationship or the association: Application by Herman Joseph Leahy (2006) SC981. The purpose of such disclosure is so that the parties, in particular the respondents, are given an opportunity to respond and for the court to then consider such response and make an informed decision on the appropriate course to take: Pruaitch v. Manek (2012) SC1168.

53. With respect, I am of the view that, the association between the learned primary judge and Dr Crouch – Chivers in the instant case presents a stronger ground for apprehended bias than was seen Boateng v. The State (supra). In the latter case, the meetings between the trial judge's wife and the prosecutrix were brief and co-incidental. In this case the learned primary judge and Dr. Crouch-Chivers are close friends and their association is a long one. Thus, the learned primary judge had a duty to disclose his association with Dr Crouch – Chivers to the parties at the very outset before the hearing commenced, but he did not. In the circumstances, I am of the respectful opinion that a fair minded member of the public having full knowledge of the association between the learned primary judge and Dr Crouch-Chivers would have held a reasonable apprehension of bias against the learned primary judge such that he might not have had an impartial mind in deciding the issues before him.

54. I also find that the fact that the learned primary judge had commenced the proceeding of his own volition would have created a reasonable suspicion in the mind of a fair minded member of the public, having knowledge of the facts, that the learned primary judge had an interest in the proceeding and would not be impartial.

55. Furthermore, I find that the fact that the learned primary judge had issued Directions, called witnesses and named the respondents to the proceeding, without giving an opportunity to those parties to be heard, amounted to a serious breach of natural justice. 

56. I would therefore allow the appeal. Moreover, given the finding of unconstitutionality expressed above, I would declare the whole of proceeding NROI No1. of 2014 void.

57. The respondents will pay the appellants' costs of and incidental to the appeal.

58. IPANG, J: This is an appeal against a decision of the National Court (Cannings, J) dated 17th March, 2014 refusing to disqualify himself from presiding over the matter referred to as HROI No. 01 of 2014: In the matter of enforcement of basic rights under section 57 of the Constitution.

59. The First and Second Appellants filed their appeal on the 11th of June, 2014 raising three grounds of appeal. The grounds of appeal are:

1.	 His Honour in the National Court erred when he over ruled submissions that he was a party, prosecutor, witness, counsel and Judge in the inquiry.

2.	 His Honour erred in law and fact and acted in breach of natural justice principle enshrined under section 59 of the Constitution, when he failed to disclose to the parties his personal relationship, association or friendship with a key expert witness, Dr. Crouch Chivers, prior to appointing him on the 6th of March, 2014.

3.	 Any reasonable and fair minded person would have inferred an apprehension of bias regarding His Honour's relationship with Dr. Crouch-Chivers.

BACKGROUND:

60. The National Court (Cannings, J) took judicial notice of the alleged detention at the regional processing centre at Lombrum Naval Base in Manus Province. A considerable number of persons seeking refugee status or asylum in Australia have been transferred to Manus pursuant to memoranda of agreement between the Governments of Papua New Guinea and Australia. It is known generally as "asylum seekers" or transferees. There were reports of alleged human rights violations and complaints about the conditions and disturbances resulting in injuries to the transferees.

61. His Honour decided on his own initiative to inquire to such matters raised by invoking s. 57 (1) of the Constitution. The s. 57 (1) states:

57. ENFORCEMENT OF GUARANTEED RIGHTS AND FREEDOMS:

"(1) A right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or the National Court or any of the Parliament, either on its own initiative or on an application by any person who has an interest in its protection and enforcement, or in the case of a person who is, in the opinion of the court, unable to fully and freely to exercise his rights under this section by a person acting on his behalf, whether or not by his authority."

62. Any proceedings commenced under s. 57(1) of the Constitution must at least observe the principles of natural justice enshrined under s. 59 of the Constitution. Any deviations could render breach of the principles of natural justice.

63. On 24th February, 2014, His Honour issued these proceedings as a Human Rights Own Initiative matter. The human rights that His Honour considered requires protection and enforcement were:

•	 the right to freedom based on law under Constitution, Section 32 (2);

•	 the right to freedom from inhuman treatment under Constitution, Section 36 (1);

•	 the right to the full protection of the law under Constitution, Section 37 (1);

•	 the right to be treated with humanity and with respect for the inherent dignity of the human person under Constitution, Section 37 (17);

•	 the right of persons under voting age who are in custody to be separated from other person in custody and be accorded treatment appropriate to their age under Constitution, Section 37 (19);

•	 the right to liberty under Constitution Section 42 (1);

•	 the right of any person who is detained to be informed promptly, in a language that he or she understands, of the reasons for his or her detention and of any charge against him or her, to be permitted whenever practicable to communicate without delay and in private with a lawyer of his or her choice, to be given adequate opportunity to give instructions to a lawyer of his or her choice, to be given adequate opportunity to give instructions to a lawyer of his or her choice in the place of detention and to be informed immediately on his or her detention of those rights, under Constitution, Section 42(2);

•	 the right of any person who is detained to complain to the National Court that he or she is unlawfully or unreasonable detained, under Constitution, Section 42(5).

64. The inquiry was then commenced in accordance with Rule 8 (commencement of proceedings by the Court) of the Human Rights Rules 2010 (Order 23 of the National Court Rules). The matter was registered as HROI No. 1 of 2014 issued in Form 26 of the National Court Rules.

65. A number of orders and directions were issued including number of prominent persons were summoned to the inquiry and they included:

1.	 The Chief Migration Officer;
2.	The Public Solicitor;
3.	The Secretary, Department of Foreign Affairs & Trade;
4.	The Secretary, Department of Justice and Attorney General;
5.	The Secretary, Department of Prime Minister and National Executive Council.

66. On the 14th of March, 2014 the appellants filed a motion seeking orders that His Honour Cannings, J disqualified himself from dealing with HROI No. 1 of 2014 and the matter be referred to another judge. Further that the matter be adjourned generally and the issue of invoking the Courts powers under section 57 (1) of the Constitution be referred to the Supreme Court for interpretation, whereby there is a real likelihood of conflict and bias against the court where the Court becomes the complainant, witness and judge of facts and law arising from such invocation of powers under section 57(1) of the Constitution.

67. On 17th March, 2014 Cannings, J considering the motion and the grounds supporting it disclosed that the doctor appointed by the court, Dr. P.R. Crouch-Chivers, a specialist consultant in Clinical and Public Health, by order of 6th March, 2014 is a personal friend of His Honour of long standing. Cannings, J refused to disqualify himself thus giving rise to this appeal.

Issue(s):

68. Whether His Honour's invocation of s. 57 (1) of the Constitution to initiate the proceedings "on own initiative" is a relevant circumstance to the argument of apprehension of bias and breaches of the rules of natural justice.

69. Whether there is an apprehension of bias regarding His Honour's relationship with Dr. Crouch-Chivers.

The Law:

70. The law on disqualification in this jurisdiction especially in respect of civil matters is as stated in the Supreme Court case of PNG Pipes Pty Ltd and Sankaran Venugopal v Mujo Sefam, Globes Pty Ltd and Romy Macasaet (1998) SC 592. It was held that:

"the test applied in determining whether apprehension of bias was satisfied was whether an objective observer, knowing all surrounding facts, would be left with an apprehension, not a conviction that the judicial officer was predisposed, by matters extraneous to a proper adjudication, to reach a particular conclusion".

71. The Supreme Court in an application by Herman Joseph Leahy (2006) SC855 in a judicial review of a criminal proceedings held:

(1)	For a Judge to be disqualified from hearing a case on the ground of apprehended bias, the test to be satisfied is; would a reasonable and fair-minded person knowing all the relevant facts have a reasonable suspicion or apprehension that a fair hearing was not possible?

(2)	His suspicion or apprehension of bias must be based on reasonable; not fanciful grounds.

(3)	General knowledge on the part of a Judge, obtained in the course of previous employment, of the subject matter of legal proceedings will not, by itself, give rise to a reasonable suspicion or apprehension of bias in the event that the Judge deals with the subject matter in a judicial capacity.

(4)	If a Judge's knowledge of the subject matter of legal proceedings contended to be the basis of a suspicion or apprehension of bias there must be a real connection between the Judge's knowledge and the issues for adjudication in those proceedings, eg; if the Judge has expressed a prior opinion on the issues for adjudication."

COURT'S INNVOCATION OF POWERS UNDER SECTION 57(1) OF THE CONSTITUTION

72. Both appellants argued that His Honour erred when he over ruled submission that he was a party, prosecutor, witness, counsel and Judge in the inquiry.

73. The proceeding was commenced through innovation of s. 57(1) of the Constitution. Let me re-state this provision:

57(1) a right or freedom referred to in this Division shall be protected by, and is enforceable in, the Supreme Court or National Court or the National Court or any other Court prescribed for the purpose by an Act of the Parliament, either on its own initiative or on an application... (underlining mine)

74. Before the National Court was the proceeding initiated by the Judge himself. This appeal as I know does not challenge his Honour's jurisdiction to initiate the proceedings. The challenge is on the manner of commencement of the proceedings under s. 57 (1) of the Constitution and the question of apprehended bias.

75. The kinds of bias referred to in Gobe Hongu Limited v National Executive Council (1999) N1964 which was endorsed by the Supreme Court in Yama v Bank South Pacific Limited (2008) SC921 which quoted Deane, J in Webb v R (1994) 181 CLR 41 who identified four distinct (though sometimes overlapping) categories of bias or apprehended bias. They include (1) conduct – where the Judge has engaged in the course of, or outside, the proceedings, giving rise to an apprehension of bias, and (2) association – where the Judge has a direct or indirect relationship, experience or contact with a person or persons interested in or otherwise involved in the proceedings.

76. In this case, the appeal involves each of the two categories of bias or apprehended bias and also illustrated how different categories may overlap with one another and how they may also involve a breach of the rules of natural justice.

CONDUCT

77. The Court commenced the proceedings "on its own initiative", (s. 57 (1) Constitution). His Honour considered that having initiated the proceedings he was thereafter conducting an enquiry. Refer to his Opening Statement A, Tab 12) his Honour refers to "this enquiry" (pages 162 & 163), "the focus of the Inquiry" (page 164) and to what may be regarded as the Inquiry's "terms of reference" (page 165).

78. The phrase "on its own initiative", what does the phrase really mean? The Concise Oxford Dictionary Tenth Edition Ed. by Judy Pearsall defines the word "initiative" as the ability to initiate, the power or opportunity to act before others do, or without being prompted by others. To initiate is therefore to cause a process or action to begin.

79. Judge at the National Court did not appoint counsel assisting or an amicus curae. Instead the judge personally conducted the proceedings. The following was what the judge did:

•	National Court summoned persons to attend before it on the 27 February, 2014.

•	National Court issued various and made orders. No-one was given any right to be heard prior to those orders been made.

•	The time frame given for hearing (pages 161-165) and further directions and orders made on 28th February, 2014 was made in appearance of speed and haste. Again no-one was given the opportunity to be heard.

•	Further directions were made in the chambers on 5th March, 2014 (pg. 168)

•	On 6th March, 2014 various directions and orders were issued (p. 169-171) no-one was given the opportunity to be heard.

•	Further orders were given appointing Dr. Crouch-Chivers, a specialist consultant in Clinical & Public Health; no-one was given the opportunity to make submission on appointment of the medical expert witness.

•	The National Court made an order allowing one Jay Williams, an Australian Lawyer, to have access to 75 of the transferees. An application to extend that order was made but could not be dealt with because of a stay. His Honour issued fresh proceedings, and made access orders circumventing the stay. His Honours acted without giving notice to any of the parties and giving the appellants, any right to be heard on the order (page 80).

 80. Because of the above, the judge was described as "a party, prosecutor, witness, counsel and Judge. Refer to the Affidavit of Attorney General Kerenga Kua sworn on the 5th March, 2014 and filed on the 14th March, 2014.

81. The manner in which His Honour initiated the proceeding and thereafter conducted the proceeding or enquiry is the subject of this appeal. There is a Commission of Inquiry Act, Ch. No. 31 which provides or caters for inquiries. Courts determine right whilst inquiries make findings and recommendations. In my view the National Court was wrong to approach the proceedings as an inquiry. Supposing the proceeding was an inquiry then I believe the first usual step would be to appoint counsel assisting or an amicus curae (a friend of court). This was supposed to be done so that His Honour as the decision maker is removed from the arena or the spot light. I quite agree with the appellant's submission in this regard.

82. The above approach was taken in MVIT Ltd v Yama Security Services Limited (2009) SC 1004: Re Contempt of Court; Re Assistant Registrar, Philip Kaumba (2004) N2763; Re conditions at Buimo Corrective Institution [1988-89] PNGLR 266; Robinson v State [1986] PNGLR 307; Toll v State (1989) SC 378. In Robinson case, a counsel was appointed an animus curae (a friend of Court). It was held in an alleged contempt in connection with proceedings in court should be prosecuted by State Prosecutor (emphasis mine). We see that the court will appoint an animus curae or a friend of the court with no fixed agenda or instructions from a party on an issue usually legal in the proceedings before the court.

APPREHENDED BIAS – JUDGE'S ASSOCIATION WITH WITNESS DR. CROUCH-CHIVERS

83. The issue of apprehended bias through association is settled in this jurisdiction. The reasonable suspicion of bias test is:

"Would a reasonable and fair-minded person sitting in a court and knowing all the relevant facts have a reasonable suspicion that a fair trial for the appellant was not possible?"

84. The test was adopted in the case of Kwame Boateng v State [1990] PNGLR 342 from R v Liverpool City Justices; Ex parte topping [1983] 1 WLR 119; AII ER 490 at 494. See also Thomas Kavali v Thomas Hohoi [1984] PNGLR 182; John Nikare v Ombudsman Commission (1996) Unreported SC 498; Consort Express Lines Limited v Namane [2001] PNGLR 71.

85. The Boateng case involved the presence of the trial judge's wife in court during a rape trial and her association with the prosecutrix within the precincts of the court which gave rise to such a reasonable suspicion and a new trial was ordered. On appeal, the Supreme Court stated:"Justice requires that there be complete absence of any inference or impression that a judge or his family have, by personal association with parties or witnesses, influenced the out of a case. However, impeccable a judgement or decision of a judge might be the appearance created by such association in the mind of a reasonable man that justice might not have been done to a party cannot be remedied by denials, however true, that such association had no effect on the outcome of the case".

86. In a situation where there has been contact between the judge and a witness bank officer on a professional basis. See Sela Gipe v State [2000] PNGLR 271.

87. This present case is stronger than Boateng and Sela Gipe in that there was a direct personal friendship between the judge and the witness Dr. Crouch-Chivers. This witness was not called by one of the parties. This witness was chosen by the Judge. The evidence revealed the Judge failed to reveal his association with the witness until prompted to do so by the appellants' application on other grounds. The appointment process of the witness and non-disclosure of the personal relationship by the Judge and the witness at a later stage raises reasonable doubt. More critical is that although an expert medical practitioner, the evidence of the witness will not be confined to matters of scientific or medical nature but also related to matters of "overcrowding" on which views might differ.

88. In Application of Herman Joseph Leahy (supra) (Kapi CJ, Cannings, David, JJ) stated: "a judicial officer has "an equal duty and obligation to bring to the attention of the parties any matter which may give the impression of apprehended bias." As to where and when a matter should be disclosed. The Supreme Court in Pruaitch v Manek (2012) SC 1168 quoted Saxmore Co. Ltd v Wool Board Disestablishment Co. Ltd (2010) 1 NZLR 35, a New Zealand Court of Appeal which stated:

"A matter should be disclosed in any case where it is possible that the observer might reasonable think the judge could be biased as a consequence of it. The judge or the Court can then consider the responses of all the parties to the disclosure and assess what course to take on that fully informed basis."

89. A disclosure by a judge of a potentially disqualifying interest or association is not just a question of prudence. It is part of the governing law. The failure of the judge to reveal the association at the outset adds to the strength of the argument of reasonable apprehension of bias. Refer to Smith v Roach [2006] HCA 36; (2006) 80 ALJR 1309 (per Kirby, J).

90. In Consort Express Lines Limited v Winnie Namane (supra) at p. 75 Injia, J (as he then was) quoted Bredmeyer, J in Fidelis Agai v Buckly Yarume [1987] PNGLR 124 in which Bredmeyer paraphrased Lord Widgery in R v Altrincham Justices: Ex parte Pennington [1975] 2 A11 ER 78 at p. 126:

"Lord Widgery CJ said that the rule of natural justice relating to bias is well known. It is not necessary to prove that the judicial officer was biased. It is enough to show a real likelihood of bias, or at all events that a reasonable person advised of all circumstances might reasonable suspect that a judicial officer was incapable of being impartial and detached. Lord Widgery said that before embarking on his judicial tasks for the day, a magistrate who also had interest in other public work, should study the list of cases to be heard and where he was actively involved with, and known to be actively connected with, a victim of an alleged offence he should either disqualify himself from hearing that case, or at least draw his connection with the victim to the attention of the parties before start of the hearing to see if there is any objection." (Underlining mine)

91. During the time of appointment of Witness Dr. Crouch-Chivers by the Court, His Honour failed to at least draw his connection being a personal friend and of long connection to the witness to the attention of the parties. Thus, the parties were placed in an awkward situation having no opportunity to raise any objection. As I reiterated earlier, until prompted to do so by appellants' application for disqualification on other grounds.

92. After His Honour refused to disqualify himself, His Honour went on to make certain orders on the 17th March, 2014. His Honour made order that the Chief Executive Officer (CEO) of Lorengau General Hospital provide and make available to Dr. Crouch-Chivers, certain equipment and personnel (Refer Appeal Book p. 216). It is a must that the principles of natural justice, especially the right to be heard be accorded to all parties in such a judicial or administrative proceeding. It was revealed that none of the parties to the proceedings were consulted about the order and other directions issued by the National Court. This suggested that there was strong indication of on-going communication between the judge and the witness.

93. Based on the facts of this case and the application of the relevant principles of law, there is clear of evidence of apprehended bias and breached of natural justice. The test on the issue of apprehended bias has been satisfied. Also the parties were not consulted or heard prior to certain directions and orders made which included appointment of key witness Dr. Crouch-Chivers. I will therefore allow the appeal. Respondents to pay the appellants' costs of and incidental to this appeal.

________________________________________________________________
Kuman Lawyers: Lawyers for the Appellants 
Public Solicitor: Lawyers for the First Respondents
Ketan Lawyers: Lawyers for the Second Respondent