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Public Service Commission v Independent State of Papua New Guinea [1993] PGNC 7; N1358 (1 September 1993)

Unreported National Court Decisions

N1358

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

OS 70 OF 1993
PUBLIC SERVICE COMMISSION
v
THE INDEPENDENT STATE OF PAPUA NEW GUINEA

Waigani

Salika J
September 1993

Counsel:

E Andrew for the Plaintiff

P Ame for the Defendant

JUDGMENT

September 1993

SALIKA J: The Plaintiffs are members of the Public Services Commission which is established under s. 190 of the Constitution. Apart frher functions and and duties the Commission is entitled to be consulted on appointments of Departmental heads under s. 193 (3) e Constitution.

The Head of State acting in accordance with the advice of the Nationational Executive Council appointed:

1. ټ Mr Bill Kua as Acti Acting Secretary Department of Youth, Home Affairs and Religion on 15th October 1992.

2. ـ M6 Joseph Gabut as t as Secretary of Department of Fisheries and Marine Resources on the 23rd December 1992.

3. ҈ Mr Guao Zurenoc as c as Acting Secretary Department of Transport on the 23rd of December 1992.

4. & M60; Mr Utula Samana as Secretary for the Department of Agriculture and Livestock on the 14th January 1/p>

5. ټ&##160; M60; Mr Toro Toro Aihi as Acting Secretary for Departmeartment of civil Aviation on the 19th January 1993.

Thentiffseeking a judicial review of those appointments having been granted leave for revr review biew by the Supreme Court.

The plaintiff allege that they were not consulted on the five appointments and they argue that the appointments are invalid.

The facts are not in substantial dispute. A concession was madehe dehe defendants at the hearing of the application for leave for judicial review that consultation did not take place as required under s. 193 (3) of the Constitution.

The defendants filed an affidavit through ough Mr Paul Songo the Secretary of the Department of Personnel Management.

Mr Songo in his affidavit says:

1. &##160;; I60; I am tham the Secretary of the Department of Personnel Management and am responsible for administration of the Public Service (Management) Act (as amended).

2. ـ O e offuhe funs I perform form relates to theo the appointment of Departmental Heads. I am directly ied in that that the Minister responsible foric Se entrme wie duty to consult the PSC on C on behalbehalf of f of the Nthe National Executive Council regarding candidates for the position of Deental Heads and appointmenttments under Section 50 of the Organic Law on Provincial Government.

3. ټ There is no set prot procedure specified under the Act nor under the General Orders to how consultation ought to take place the P160; it haome an accepted practice to have the process of consulting asng as ad h ad hoc anoc and vard variable according to the time scale in which a decision is to be made.

In practice, consultation between the PSC and my office on behalf of the ENC has been in the form of either verbal, telephonic, facsimile or letter. That has been accepted practice that has existed over the years. Since February 1992, when I returned from my overseas mission engagement, telephone conversation with myself and the Chn of the PSC has been a mode of consultation and has been aeen accepted by both I on behalf of the NEC and the PSC.

4. &ـ I60; I am awam aware that at the time when the Departmental Heads in question were to be appointed, communication en I rson, and the PSC was nil. I was dir by the current Ment Minister for PubliPublic Serc Service to get in touch with the PSC to facilitate consultation.

5. &##160; T60; To give tffecthto ini Minister’s direction, I instruct my personnel Secretary to contact the office of the Chairman of PSC. That was in theod of SepteSeptember to December, 1992, when the ntmensuch ns were were been been cons considered by the National Executive Council. During that said period neither the PSC Chairman nor f his members could be cont contacted for the following reasons.

(a) ome Csioishad elocatem Goem Government officers to Tabari Place, Boroko, N.C.D, aboutabout that same period.

(b) Telephoselemono n otnt/p(c

(d) & 160; Mr0; Mr HeMr Henry Vnry Verataeratau was the administrator for the then suspended East Sepik Provincial Government. Hebased in Wewak and the othe only acting commissioner available was Mr Florian Mamp>

7. ҈& I60;s m is my judg judgement that it would have been unwise to attempt to delay the process of Government and the appointmf thertmends by Cabinet simply because no response had been received from the PSCe PSC at t at the cohe consultation process, was to take place. I have good reasons for nglding this view, related to the amendments made to the constitution, and the introduction of the Public Service (Management Act).

It is clear from Mr Songo's affidavit that there was no consultation. Clause 5 of hiidavit suggesuggests there may have been attempts to contact the plaintiffs but there is no evidence that his Secretary actuallyed to any of them or left a message to call back. There is simp evidence of e of any any communication between the plaintiffs and Mr Songo. I appreciate the ns advancdvanced by Mr Songo in Clause 6 and 7 of his affidavit. However it must be red that s. 193 (3) directs ects the National Executive Council to consult the Public Services Commission. If consultation by telephoas not possible there is no evidence that facsimiles or letters were sent out to the plaintlaintiffs.

Public Service Commissioestablished under s. 190 of the Constitution of PNG. S. 191 of onstitution spel spellspells out the responsibilities of the Public Service Commission which are:

(a) & to ensure efficient managmanagement and control of the Nat Public Service.

(b)p>(b) & to deal with all personnesonnel matters connected with the National Public ce.(c)& #160;&#160 &#160&#to d al with other mher matters in relation to other State services, Provincial services and Governmental bodies.

Itlso tnctiothe PSC to keep under continuous review the State Services (other than than the Dthe Defencefence Force) provincial services and services of government bodies.

S. 193 (1) says:

“Appointments to certain offices.

1. ҈& T60; seis section tion applies to and in respect of the following offices and positions:

(a) ـ alices e National Public Service the occupants of which are directly responsibonsible tole to the the National Executive Council or to a Mir; an

(60; the offices of the rembe t of the Boundariedaries coms commissimission; and

(c) & the offe office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibilitts wiboardommis the chairman or president ofnt of the board or commission; and

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(d)&#(d) &160; ;ټ th0; the offices oces of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and

(e); the office of Commissioissioner oner of Police; and

(f) the offfce omaComr odethe the Defence Force; and

(g) ffe o ofceecreSary to the the National Executive Council; and

(60;&##160;;&#16ch otffices and positionitions as s as are pare perceierceived bved by an Act of the Parliament for the purpose, other than the offices of the members of the Public Service Commission.”

S. 193 (3) says:

“(3) All appents (whether tempotemporary or substantive) to which Subsection (1)(a), (d), (f) and (g) apply and such other offices and positions as are prescribed by an Acthe Paent fe purpose of this subsection, shall be l be made made by thby the Head of State, acting with, and in accordance with, the advice of the National Executive council given after consultation with the Public Service Commission.”

It is contended that the appointments made by the Head of State are appointments which come under s. 193 (1) (a) of the Constitution. There is noment over that.that. It is furtontended that beat before such appointments are made subsection (3) must be complied with.& The plaintiffs argue that subsection (3) is in mandatory terms. Theue that the the appoinppointments shall be made by the Head of State acting with and in accordance with the National Executive Council given after consultation with the Public Service Commiss/p>

They argue that such such consultation must be within the terms of s. 255 of the constitution, that is the consultation must be meaningful and allow for a genuine interchange and consideration of views. In this case was no commucommunication either by telephone, facsimile or letters between the plaintiffs and the National Executive Council through Mr Songo. There is idenct Mr Songo tngo talked with the plaintiffs in relationation to the 5 disputed appointments. If was no communication iion it follows there was no consultation. Therefore there was no meaningful and genuine eine exchange of views in relation to thoseintments.

The argument is further strengthened by thby the advise that is given to the Head of State.

The advice is in ollowing terms:

&#82>“ADVICE TO GOVERNOR GENERAL

Your Excellency,

You are hereby informed that on the (date) the National Executive Council did decide to advise you after consultation with the Public Service Commission to:

1. ...

20;#1660;#1160;#160; Promote apoint ( name of a of appointees) to the office of Secretary Department of...............for a period of........years commencing on and from the date of publication of this instrument in the Nal Gazunder93 (3) (3) of thof the Cone Constitution and Section 25 of the Public Service (Management) Act.”

The plaintiffs argue that the Governor General was falsely advised that the National Executive Council had consulted with them.

The defendants however argue that because Mr Songo did attempt to consult by telephone and that he could not, they had substantially complied.

I do not think that it can be logically argued that an attempt by telephone to consult and not talk to anybody because the telephone was disconnected due to non payment of rent or because the plaintiffs were moving offices is substantially complying with s. 193 (3). If no co was made by teleptelephone there is no consultation. The Conston does not say tsay there must be substantial compliance. In mw if I find that therethere was no consultation that is the end of the matter. The mamust go ba the drawidrawing room to be rectified.

If

If however a letter or facsimile was sent and the plaintiffs did not respond one could argue that there was consultation in that case.

I find there was no consuconsultation between NEC and the Public Service Commission.

The next question then is what is the effect of such failure to consult.

The Constitution is the Supreme Law of this land.; I refer to r to Sections 9, 10 and 11 of the Constitution.

Where the Constitution imposes a duty or obligation it must be carried out. Here in my view93 (3) impo imposes a duty on the NEC to consult with the PSC in making appointments under s. 193 (1) (a).

In my view s. 193 (3) is in mandatory terms relating to the appointment of perto certain offices by the Hthe Head of State. The Head of State act with with any in accordance with the advice of the national Executive council. The advise by the Nationational Executive Council to the Head of State in relation to the appointmentt be given after consultatiltation with the Public Service Commission. In my view it is a direction in mandatory terms.

It is not the Courts function to interfere with the functions of the National Executive Council in carrying out their duties. Hr thets as guardians of t of the law are duty bound to ensu ensure that the letter of the law is adhered to.

I have found thate was no consultation and as there was no consultation I declare that the appointment of:

1. ـ M6 Bill Kua as Acti Acting Secretary of Department of Youth Home Affairs and Religion.

2. ـ&#1Mrph Grph Gas Secs Secy of Department of Fisheries and Marine Resources.

3.&p>3. #160;  Mr ; Mr Guao Zurenuocctiryetary for Department of Transport.

4.&#160  &ـ Mr Utul Utula Samana asetacretary for Agricultud Livk.

The Plaintiffs also in their oatingons aeking that coure a bt injunctive order against the National Enal Executxecutive Cive Counciouncil to l to restrrestrain it from making future appointments without first consulting them. I consider it not necessa1y. I refuse to make such orders.

Lawyer for Plaintiff: Andrew Eremas

Lawyer for Defendant: Solicitor General