Home | Databases | WorldLII | Search | Feedback National Court of Papua New Guinea

Yakasa v O'neil [2011] PGNC 167; N4461 (8 December 2011)

N4461

PAPUA NEW GUINEA [IN THE NATIONAL COURT OF JUSTICE

OS (JR) NO. 915 OF 2011

BETWEEN:

FRED YAKASA
Plaintiff

AND:

HON. PETER O'NEIL MP as the Prime Minister of Papua New Guinea and Chairman of the National Executive Council
First Defendant

AND:

NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:

TOAMI KULUNGA, Commissioner of Police
Third Defendant

Waigani: Manuhu, J. 2011: 6, 7 & 8 December

JUDICIAL REVIEW – Leave – Revocation of acting appointment as Deputy Police Commissioner – Arguable case – Consideration of arguments – Security of tenure – Power to revoke acting appointment

Case cited:
Simon Opa v Hans Gima, Chairman of the Provincial Education Board (2008) N3343.

Counsel:
R. Diweni, for the Plaintiff. No Appearance, for the Defendants

8 December, 2011.

1. MANUHU, J: This is an application for leave for judicial review of a decision by the National Executive Council (NEC) to revoke the Plaintiff's appointment as acting Deputy Police Commissioner (Operations). The requirements of locus standi, exhaustion of administrative avenues, and promptness of institution of proceeding have been met. The only issue is whether the Plaintiff has an arguable case. Stay orders are also sought if leave is granted.

2. The Plaintiff was appointed on 10th November 2010 as Acting Deputy Police Commissioner (Operations) "commencing on and from 10th of November 2010 until further notice under section 193 (2) of the Constitution and sections 9 (5) and 49 of the Police Act 1998." That appointment ended on 25th November 2011 when the NEC decided to revoke it.

3. The Plaintiff claims that his involvement in the arrests of Acting Prime Minister Honourable Belden Namah and Attorney General Honourable Dr. Allan Marat in relation to contempt allegations was the reason behind the revocation of his appointment. The Supreme Court had ordered on 10th November 2011 that the Acting Prime Minister and Attorney General be arrested and detained by police and be produced to the Supreme Court on 12th December 2011. The arrests were carried out by the Plaintiff at the Police Headquarters at Konedobu on 14th November 2011.

4. However, the NEC did not provide the reasons for its decision to revoke the appointment. Therefore, the Plaintiff's claim is just his assumption. The plain fact of the matter is that the NEC did not give any reason for the revocation, and this Court will deal with this case on that factual basis.

5. The Plaintiff argues firstly that the NEC did not observe the rules of natural justice in that it failed to provide reasons for its decision; and that the Plaintiff was not accorded the opportunity to defend his position and himself to demonstrate that he was worthy of appointment as Deputy Police Commissioner.

6. It is argued secondly that the decision was "punitive, unjustified, and is contrary to the provisions of the Police Act and is unreasonable." It is argued in particular that there was no vacancy warranting an appointment of another person to act in the position. The Plaintiff's appointment was based on section 9 and 49 of the Police Act 1998. Therefore, the revocation of his appointment ought to be in line with those provisions.

7. I am unable to understand this argument because sections 9 and 49 do not provide for appointment of acting Deputy Police Commissioner. The former relates to appointment of a Police Commissioner. The latter relates to appointment of a Deputy Police Commissioner and for related purposes. The Plaintiff was only acting in the position of Deputy Police Commissioner.

8. The Plaintiff also argues in particular that the appointment of his replacement did not follow proper procedures. As I understand it, it is contended that as the substantive position remains vacant, the Plaintiff should continue to act until a substantive appointment is made in accordance with section 50 of the Police Act 1998.

9. The Plaintiff's third main argument is that the decision to revoke his appointment was unreasonable in that no reason was given for its decision, the decision was exercised in breach of the law, the decision was made in bad faith, the Plaintiff became an unattached officer as a result of the decision, the decision was politically motivated, and the NEC abused its powers.

10. It is also argued that the decision was not in the public interest. Questions have been raised in relation to the legitimacy of the current government. The Supreme Court is yet to rule on the legitimacy of the current government. Changing heads within the Police Force in the circumstances is not in the public interest. The NEC should have waited until the Supreme Court delivers its decision.

11. The Court has considered the arguments but it remains unconvinced because these arguments miss a fundamental point. The Plaintiff was only acting in the position of Deputy Police Commissioner.

12. A Deputy Police Commissioner is appointed for three years. The process of his removal is prescribed under section 49 of the Police Act 1998. A Deputy Police Commissioner may be removed during his tenure only on account of conviction of any offence involving dishonesty or for which a term of imprisonment may be imposed; failure to comply with any essential term or condition of the appointment; negligence or dereliction of duty; misconduct; incapacity due to infirmity of mind or body; failure adequately to perform the duties required of a person holding the rank of Police Commissioner; the resignation or retirement of the Police Commissioner; and, in the interest of the State.

13. In other words, in the case of a Deputy Police Commissioner, there is certainty of tenure and there is security of that tenure. This means that in the event of removal from office, among other things, the principles of natural justice would be applicable, there would be a duty to give reasons for a decision to remove, there would be a duty to act reasonably, there would be a duty to act in the public interest, and the removal would have to follow a certain prescribed procedure.

14. On the other hand, it is absurd for the Plaintiff, who was only acting, to claim security of an uncertain tenure. He was not a substantive position holder. He did not execute a formal contract of employment. He cannot claim terms and conditions of employment equivalent to those accorded to a Deputy Police Commissioner. His appointment was subject to "further notice under section 193 (2) of the Constitution and sections 9 (5) and 49 of the Police Act 1998."

15. Such further notice may be in favour of the Plaintiff or another member of the Police Force. Where another acting appointment is made, the incumbent's acting appointment ought to be revoked. Such notice, an acting appointee ought to know, may come at anytime. This is where the Plaintiff's argument on natural justice, reasonableness, public interest, and compliance with prescribed procedures must fail.

16. In addition, it is a misreading and an absurdity to say that the terms of appointment granted to the Plaintiff a guarantee that he and he alone would be appointed Deputy Police Commissioner or, for that matter, Police Commissioner. Neither does his appointment entitle him to act in the position for three years.

17. Furthermore, the power to revoke an acting appointment is by inference provided for under section 53 of the Interpretations Act. Subsection (2) provides that the power to make an appointment to an office includes the power to appoint a person to act in that position. Subsection (4) compliments subsection (2). Under subsection (4) an acting appointment may be made in anticipation of a vacancy "unless it expires or is revoked..." The word "revoked" is not used in vain. It implies that an appointing authority may revoke an acting appointment, and such revocation may be done at anytime especially where, as in this case, there is no tenure attached to an acting appointment. See Simon Opa v Hans Gima, Chairman of the Provincial Education Board (2008) N3343, for a similar view in respect of an acting Principal of a school.

18. In this case, the terms of the Plaintiff's appointment did not exclude the NEC's prerogative to revoke his appointment as acting Deputy Police Commissioner. The power to revoke, by virtue of section 53 of the Interpretations Act and by necessary inference, was always a term of the Plaintiff's acting appointment. The NEC exercised that power on 25th November 2011.

19. In the circumstances, the Plaintiff has failed to demonstrate an arguable case warranting intervention by way of judicial review. Leave is refused for that reason. This is also the fate of the application for stay orders.

_________________________________________________
Stevens Lawyers: Lawyer for the Plaintiff
Neville Devete, Solicitor General: Lawyer for the Defendants