Court puts Ombudsman on notice

Editorial, Normal

The National, Friday July 17th, 2015

 THE Supreme Court on Wed­nesday made a watershed decision that places the emphasis squarely on the Ombudsman Commission to ensure that all leaders under investigation for alleged breaches of the Leadership Code are accorded the right to be heard.

In a unanimous decision, Justice Colin Makail, Justice David Cannings and Justice Terence Higgins, found among others, that the Ombudsman Commission’s failure to afford the appellant, Public Enterprises and State Investments Minister Ben Micah, a right to respond was a denial of natural justice.

The judges upheld Micah’s appeal and ordered the matter be remitted to the National Court for further hearing and listed on the next available date for direction hearing.

Micah had appealed against the National Court’s refusal to grant him leave for the judicial review and the higher court was satisfied he had an arguable case.

The Supreme Court made the following orders:

  • The appeal if upheld;
  • the National Court decision of May 20, 2015, refusing the appellant’s application for leave to apply for judicial review is quashed; 
  • the third respondent shall provide the reasons of the referral to the appellant within seven days of this order;
  • the matter is remitted to the National Court for further hearing and listed on the next available date for direction hearing, and,
  • The respondents shall pay the costs of the appeal, to be taxed, if not agreed.

The respondents were Chief Ombudsman Rigo Lua, Ombudsman Phoebe Sangetari, the Ombudsman Commission and Public Pro­secutor Pondros Kaluwin. They were represented by Asher Chillion from the Office of the Solicitor-General, while Ian Molloy QC and Nelson Saroa from Nelson Lawyers represented Micah.

It is worth noting that the Supreme Court has ordered the commission to furnish Micah with the reasons for his referral by next Wednesday.

The judges explained this order as follows:

“Although the appeal is against the refusal of leave, the Supreme Court has wide discretion under Section 16 of the Supreme Court Act to issue orders in appropriate cases to attain justice. Under Section 16 (supra), this court may, among other things, affirm, reverse, or modify the judgment of the National Court, or give such judgment as ought to have been given in the first instance or remit the case in whole or part for further hearing. It is considered this is an appropriate case where an order should be issued directing the Ombudsman Commission to provide the Notice of Referral or reasons to the Appellant. In that way, it should put to rest the issue of lack of reasons or at least help to resolve one of the grounds of review. This ground is upheld.”

Interestingly, the court found that the commission had been keeping the minister in the dark about the reasons for his referral since March this year despite “numerous requests in person or through his lawyers”.

It would foolish of the com­mission not to adhere to the court’s order. The last public figure found guilty of contempt of court was former Police Commissioner Geoffrey Vaki, who was slapped with a three-year jail term with hard labour last month.

The court’s ruling is succinct on the issue of natural justice or the right of leaders to be heard.

“On the question of the right to be heard, this court is satisfied it is arguable the appellant had a right to be heard and must be accorded to him from the time the Ombudsman Commission re­ceived further information or evidence in relation to the allegations against him. This ground is upheld.”

Another point worth noting is that the court was not satisfied that the Leadership Tribunal had the jurisdiction to consider if the referral was valid.

“In our view, unless there is a valid referral of a leader, the Leadership Tribunal would be acting in excess of its powers if it was to conduct an inquiry into allegation(s) of misconduct in office by the leader. 

“In other words, the Leadership Tribunal is not empowered to investigate a matter without a valid referral.”

The Supreme Court has put the Ombudsman Commission on notice to ensure any future referrals of leaders are valid.