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Wingti v National Executive Council [2021] PGNC 18; N8784 (29 March 2021)

N8784

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


OS (JR) NO 85 OF 2020


RT HON PAIAS WINGTI MP, IN HIS CAPACITY AS CHAIRMAN,
WESTERN HIGHLANDS PROVINCIAL EXECUTIVE COUNCIL
First Plaintiff


PROVINCIAL EXECUTIVE COUNCIL OF THE
WESTERN HIGHLANDS PROVINCIAL GOVERNMENT
Second Plaintiff


JOSEPH NENG
Third Plaintiff


V


NATIONAL EXECUTIVE COUNCIL
First Defendant


ELVIS MARK BALG
Second Defendant


THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant


Waigani: Cannings J
2021: 5th, 9th, 10th, 29th March


JUDICIAL REVIEW – review of decision of National Executive Council to appoint a provincial administrator – Organic Law on Provincial Governments and Local-level Governments, s 73(2) – whether requirement that appointment be made “after considering a list comprising the names of three persons submitted by the Provincial Executive Council concerned” is mandatory – whether Provincial Executive Council able to reject all candidates and request readvertisement.


Applications were invited for the position of Provincial Administrator, Western Highlands Province. After a selection process that saw a shortlist of five go from the Department of Personnel Management to the Public Services Commission, the Commission recommended to the Provincial Executive Council that the most suitable candidates in order of preference were McJameson P Ulg, Stanley Maip and Elvis Mark Balg. The Provincial Governor and Chairman of the Provincial Executive Council then expressed concern about the process being used and wrote to the Secretary for Personnel Management, asking that the position be readvertised. The Governor’s letter was copied to six other leaders including the Prime Minister and Chairman of the National Executive Council. There was no response. Four months later, the National Executive Council, without further notice to the Governor, appointed Elvis Mark Balg as Provincial Administrator. The Governor, the Provincial Executive Council and Joseph Neng (the immediate past Provincial Administrator) were aggrieved by the appointment of Mr Balg. Having been granted leave by the court, they applied for judicial review of the decision to appoint Mr Balg. The grounds of review centred on an alleged breach of s73(2) of the Organic Law on Provincial Governments and Local-level Governments, which provides that a provincial administrator is appointed by the National Executive Council after considering a list of three names submitted by the Provincial Executive Council. The plaintiffs argued that the Provincial Executive Council did not submit any list of three names and therefore the appointment was unlawful. They sought declarations and orders that would result in the appointment of Mr Balg being quashed and either readvertisement of the position or reappointment of Mr Neng. The defendants responded that the Provincial Executive Council had refused the opportunity given to it to submit a list of three names and that the power previously available to it under the Public Services (Management) Act 1995, to reject the list given to it by the Public Services Commission and request readvertisement, was removed by amendments made in 2020 to the Act. It was argued that in the circumstances of this case, there was no requirement for the appointment to be based on a list of three names submitted by the Provincial Executive Council, and that the appointment of Mr Balg was lawful.


Held:


(1) The requirement in s73(2) of the Organic Law that the National Executive Council appoint a provincial administrator from a list comprising the names of three persons submitted by the Provincial Executive Council is mandatory.

(2) All laws inferior to s 73(2) of the Organic Law, including the Public Services (Management) Act 1995 and its 2020 amendments and the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003, which on their terms appeared to constrain the power of a Provincial Executive Council as to the list of names it can submit to the National Executive Council and limit its power to decline to submit a list to the National Executive Council, might be unconstitutional but the National Court lacked authority to make a declaration to that effect in these proceedings, and no such declaration was sought; and it was unnecessary to refer any constitutional questions to the Supreme Court under s 18(2) of the Constitution.

(3) Those inferior laws must be read down and regarded as guidelines, subject to the overriding power of a Provincial Executive Council to restrain the discretion of the National Executive Council as to who it appoints by submitting to it a list of three names from which the appointment must be made or by not submitting a list.

(4) Here, the Provincial Executive Council did not submit a list of three names to the National Executive Council, which therefore lacked power to appoint Mr Balg.

(5) Nothing in the Organic Law or the Public Services (Management) Act 1995 or the 2003 Regulation prevented the Provincial Executive Council from taking the position it did regarding the list of three names submitted to it by the Public Services Commission, including requesting readvertisement of the position and declining to submit a list to the National Executive Council.

(6) Declared: the appointment of Mr Balg as Provincial Administrator was unlawful. Ordered: the appointment is quashed. Declared: the circumstances provided for by s 60(4) of the Public Services (Management) Act 1995 exist in respect of the office of Provincial Administrator, Western Highlands Province, in that the office is vacant and the person who held that office before the vacancy, Joseph Neng, is willing and eligible to continue in that office. Ordered: specific things be done for the purpose of filling the vacancy expeditiously.

Cases Cited


The following cases are cited in the judgment:


Alois Kingsley Golu v Regett Marum (2013) N5104
Application by John Mua Nilkare [1998] PNGLR 472
Dale Christopher Smith v Minister for Lands (2009) SC973
Edo v Brown (2006) N3071
Isaac Lupari v Sir Michael Somare (2008) N3476
Kalaut & Yakasa v National Executive Council (2021) N8709
Lowa v Akipe [1992] PNGLR 399
Lupari v Somare [2008] PNGLR 455
Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60
Namah v Leadership Tribunal (2020) N8415
Peter Ipatas v Sir Michael Somare (2010) N4190
SC Ref No 1 of 1984; Re Morobe Provincial Government [1984] PNGLR 212


JUDICIAL REVIEW


This was an application for judicial review of the decision of the National Executive Council to appoint a Provincial Administrator.


Counsel


P N Mawa, for the First & Third Plaintiffs
M P Tamutai & E Ngomba, for the Second Plaintiff
K Kipongi, for the First & Third Defendants
R Obora, for the Second Defendant


29th March, 2021

1. CANNINGS J: The Right Honourable Paias Wingti MP is the Governor of Western Highlands Province and chairman of the Provincial Executive Council. He is the first plaintiff in these proceedings. He is joined by the Provincial Executive Council as second plaintiff and the immediate past Provincial Administrator, Western Highlands Province, Joseph Neng, as third plaintiff. They apply for judicial review of the decision of the National Executive Council, the first defendant, to appoint Elvis Mark Balg, the second defendant, as Provincial Administrator of Western Highlands Province. The Independent State of Papua New Guinea has been joined as third defendant.


2. Applications were invited for the position of Provincial Administrator, Western Highlands Province. After a selection process that saw a shortlist of five go from the Department of Personnel Management to the Public Services Commission, the Commission recommended to the Provincial Executive Council that the most suitable candidates in order of preference were McJameson P Ulg, Stanley Maip and Elvis Mark Balg.


3. Mr Wingti then wrote to the Secretary for Personnel Management, asking that the position be readvertised. There was no response. Four months later, the National Executive Council, without further notice to Mr Wingti or the Provincial Executive Council, appointed Mr Balg as Provincial Administrator.


4. The plaintiffs have been granted leave by the court to apply for judicial review of the decision to appoint Mr Balg. The grounds of review centre on an alleged breach of s 73(2) of the Organic Law on Provincial Governments and Local-level Governments, which requires that a provincial administrator be appointed by the National Executive Council after considering a list of three names submitted by the Provincial Executive Council. The plaintiffs argue that the Provincial Executive Council did not submit a list of three names to the National Executive Council and that submission of such a list was a mandatory requirement, and therefore the appointment of Mr Balg is unlawful. They seek declarations and orders that would see the appointment of Mr Balg quashed and either readvertisement of the position or reappointment of Mr Neng.


5. The defendants argue that the Provincial Executive Council refused the opportunity to submit a list of three names and that the power previously available to it under the Public Services (Management) Act 1995, to reject the list given to it by the Public Services Commission and request readvertisement, was removed by the 2020 amendments to that Act. It is argued that in the circumstances of this case, there was no requirement for the appointment to be based on a list of three names submitted by the Provincial Executive Council, and that the appointment of Mr Balg is lawful.


ISSUES


6. These are the key issues for determination:


  1. Is it a requirement of the Organic Law that a Provincial Administrator be appointed from a list of three names submitted by the Provincial Executive Council?
  2. Did the Provincial Executive Council’s failure to submit a list of three names mean that that the appointment of Mr Balg was unlawful?
  3. Have any of the grounds of judicial review been established?
  4. What orders should the Court make?

FACTS
7. Before considering those issues I make the following findings of fact concerning the events that culminated in the appointment of Mr Balg as Provincial Administrator, Provincial Executive Council.


8. Mr Neng’s four-year term as Provincial Administrator expired on 10 December 2019. He then held the position on an acting basis until December 2020.


9. The vacant position was advertised in 2020. Mr Neng was not an applicant as on 5 May 2020 he attained the age of 60 years, which was then, perforce of s 56 (age of retirement) of the Public Services (Management) Act 1995, the age of retirement for provincial administrators.


10. The age of retirement was increased to 65 years by s 12 of the Public Services (Management) (Amendment) Act 2020, which repealed and replaced s 56 (age of retirement) of the Public Services (Management) Act 1995, and came into force on 18 May 2020 (per notice of commencement in National Gazette No G276 of 15 May 2020).


11. Applications for the vacant position were screened by the Department of Personnel Management, which in June 2020 sent a shortlist of five candidates to the Public Services Commission.


12. The Public Services Commission then did its own assessment and on 31 July 2020 wrote to Mr Wingti, attaching a detailed assessment report, concluding that the three preferred candidates, in order of preference, were: (1) McJameson P Ulg, (2) Stanley Maip and (3) Elvis Mark Balg.


13. Mr Wingti’s response was to write a letter dated 8 September 2020 to the Secretary, Department of Personnel Management, Ms Taies Sansan, asking that the position be readvertised. He pointed out that, after the position was advertised, amendments to the Public Services (Management) Act 1995 had made potential candidates aged 60 to 65 years eligible for appointment. Mr Wingti also expressed concern that the Provincial Executive Council was being asked to submit three names from a list of only three given to it by the Public Services Commission, which appeared to be contrary to s 73(2) of the Organic Law on Provincial Governments and Local-level Governments, which provides, amongst other things, that the National Executive Council shall “after considering a list comprising the names of three persons submitted by the Provincial Executive Council concerned” appoint the Provincial Administrator from that list.


14. Mr Wingti’s letter was copied to six other leaders including the Prime Minister and Chairman of the National Executive Council. There was no response.


15. The National Executive Council then, on 20 December 2020, without further notice to the Provincial Executive Council, appointed Mr Balg as Provincial Administrator. The instrument of appointment was published in National Gazette No G903 of 22 December 2020 in the following terms:


Organic Law on Provincial Governments and Local-Level Governments


Public Services (Management) Act 1995


REVOCATION OF ACTING APPOINTMENT AND APPOINTMENT OF

WESTERN HIGHLANDS PROVINCIAL ADMINISTRATOR


THE NATIONAL EXECUTIVE COUNCIL, by virtue of the powers conferred by Section 73(2), 73(2A) and 73(2B) of the Organic Law on Provincial Governments and Local-Level Governments and Section 60 and 60A of the Public Services (Management) Act 1995, and all other powers it enabling, on the recommendation from the Western Highlands Provincial Executive Council, following procedures prescribed by or under the Public Services (Management) Act 1995, hereby-


(a) appoint Joseph Neng as Acting Provincial Administrator for Western Highlands Provincial Administration for a period of three (3) months, commencing on and from 11th September 2020 up until a substantive appointment is made; and

(b) revoke the appointment of Joseph Neng as Acting Provincial Administrator for Western Highlands Provincial Administration; and

(c) appoint Elvis Mark Balg as Provincial Administrator for Western Highlands Provincial Administration, for a period of four (4) years,

with effect on and from the date of publication of this instrument in the National Gazette.


Dated this 20th day of December 2020.


J MARAPE,

Chairman-National Executive Council.


16. The Provincial Executive Council had not at any stage submitted a list of names to the National Executive Council or any other body or authority.


ISSUE 1: IS IT A REQUIREMENT OF THE ORGANIC LAW THAT A PROVINCIAL ADMINISTRATOR BE APPOINTED FROM A LIST OF NAMES SUBMITTED BY THE PROVINCIAL EXECUTIVE COUNCIL?


17. The Organic Law on Provincial Governments and Local-level Governments was made in 1995 and has been amended several times. The provision relied on by the plaintiffs, s 73(2), was amended most recently by the Organic Law on Provincial Governments and Local-level Governments (Amendment) Law 2014. However, that 2014 amendment was amongst a suite of laws, including the Public Services (Management) Act 2014, which was ruled unconstitutional by the Supreme Court in Kereme v O’Neill (2019) SC1781. That case was a successful challenge brought by the Chairman of the Public Services Commission, Dr Kereme, under s 18(1) of the Constitution, to various laws, based on the failure of the Parliament to comply with, amongst other requirements, the procedures for amendment of Constitutional Laws prescribed by s 14 of the Constitution.


18. I provide that potted history of the Organic Law to make the point that pinpointing the precise terms of s 73(2) that applied at the relevant time, in 2020, has not been a straightforward exercise. It has been made more complex due to a lack of attention to detail in submissions of all counsel; and both usually reliable publishers of the laws of Papua New Guinea, pngInLaw and PacLII, appear not to address these issues carefully.


19. However, I am satisfied, having conducted my own inquiries into the state of the law that, at the relevant time, s 73(2) of the Organic Law was in these terms:


The National Executive Council–


(a) after considering a list comprising the names of three persons submitted by the

Provincial Executive Council concerned; and


(b) after consultation with the Public Services Commission,

shall by notice in the National Gazette, appoint from the list submitted under Paragraph (a), the Provincial Administrator.


20. This provision can, in my view, be read in no other way than stipulating that, before appointing a provincial administrator, the National Executive Council shall:


(1) consider a list comprising the names of three persons submitted by the Provincial Executive Council concerned; and

(2) engage in consultation with the Public Services Commission (which must, by virtue of s 255 (consultation) of the Constitution, in principle, be meaningful and allow for a genuine interchange and consideration of views, as pointed out by Woods J in Dotaona v Makis (1998) N1797, a case concerning the termination of appointment of the New Ireland Provincial Administrator); and

(3) make the appointment from the list submitted by the Provincial Executive Council.

21. They are three discrete and essential requirements and in this case, only the second has been complied with. No issue is taken by the plaintiffs regarding consultation with the Public Services Commission. However, it is clear that no list of three names was ever submitted by the Provincial Executive Council, and that Mr Balg was not appointed from any such list.


ISSUE 2: DID THE PROVINCIAL EXECUTIVE COUNCIL’S FAILURE TO SUBMIT A LIST OF THREE NAMES MEAN THAT NO APPOINTMENT COULD BE MADE?


22. What are the consequences of the failure of the Provincial Executive Council to submit a list of three names? According to the defendants there are none, because the Provincial Executive Council gave up the opportunity to submit a list when it requested, through Mr Wingti’s letter of 8 September 2020 to the Secretary for Personnel Management, that the position be readvertised.


23. The defendants argue that any right that the Provincial Executive Council had to request readvertisement of the position, which existed under the Public Services (Management) Act 1995, was removed by the 2020 amendments to that Act.


24. The defendants also argue that there were time limits applying to the submission of the list of names, prescribed by the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003. Those time limits were not adhered to.


25. The defendants argue that the Provincial Executive Council was obliged to submit a list, based on the recommendations of the Public Services Commission that were given to it in accordance with law. The Provincial Executive Council failed to discharge its obligations, and ought not now be permitted to complain that the National Executive Council made a decision without having a list of names submitted by the Provincial Executive Council.


26. To appreciate those arguments it is necessary to set out the law being relied on by the defendants. Prior to its amendment in 2020, s 60 (procedures relating to substantive appointment of provincial administrator) of the Public Services (Management) Act 1995 was in these terms:


(1) The procedures relating to the substantive appointments to offices of Provincial Administrators referred to in Section 73(2) of the Organic Law on Provincial Governments and Local-level Governments are as follows:


(a) where an office of Provincial Administrator becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personnel Management shall, subject to Subsections (2) and (3) –


(i) declare that a vacancy in the office of Provincial Administrator exists or is about to exist; and


(ii) obtain from the Central Agencies Co-ordination Committee the minimum requisites for that office; and


(iii) notify the Commission and the Provincial Executive Council concerned of the vacancy; and


(iv) advertise for applications for the office –


(A) on a least two occasions in a newspaper circulated

nationally; and

(B) in such other manner as it considers appropriate;


(b) after consideration an assessment of applicants and consultation with the Central Agencies Co-ordination Committee, the Departmental Head of the Department of Personnel Management shall –


(i) compile a list of not less than five candidates who have at least the minimum requisites for the office; and


(ii) submit to the Commission for its consideration –


(A) the list under Subparagraph (i); and

(B) all applications received in response to the advertisements under Paragraph (a)(iv);


(c) an assessment of an applicant under Paragraph (b) shall be based on –


(i) the minimum requisites for the position; and


(ii) where available, any appraisal of performance and discipline under Section 24A; and


(iii) prescribed criteria;


(d) the Commission shall consider the list submitted under Paragraph (b)(ii)(A) and all applications received in response to the advertisements under Paragraph (a)(iv) and shall–


(i) compile therefrom a list of up to three candidates in order of preference; and


(ii) submit the list under Subparagraph (i) as a recommendation to the Provincial Executive Council concerned;


(e) the Provincial Executive Council shall –


(i) from the list submitted to it under Paragraph (d)(ii) submit to the National Executive Council a list in order of preference for appointments as Provincial Administrator and the National Executive Council shall make an appointment from the list; or


(ii) where it does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment, so advise the Commission and the Department of Personnel Management and the procedure set out in Paragraph (a)(iv),(b),(c),(d) and (e)(i) shall be followed.


(2) Where –


(a) an office of Provincial Administrator becomes vacant or is likely to become vacant; and

(b) the person holding the office or who held the office immediately before it became vacant is willing and eligible to continue in that office,


the Departmental Head of the Department of Personnel Management shall obtain from the Central Agencies Co-ordination Committee a report under Section 24A on the performance and discipline of that person, and where such report justifies the reappointment of that person shall notify the Commission accordingly and, subject to Subsection (3)(b), the procedure specified in Subsection (1) shall not be followed.


(3) On receipt of a notification under Subsection (2), the Commission shall recommend to the Provincial Executive Council that the person be re-appointed and –

(a) where the Provincial Executive Council is agreeable to the reappointment, it shall advise the National Executive Council to reappoint the person as substantive Provincial Administrator; or


(b) where the Provincial Executive Council is not agreeable to the reappointment–


(i) it shall so advise the Commission and the Departmental Head of the Department of Personnel Management; and

(ii) the procedure specified in Subsection (1)(a),(b),(c).(d) and (e) shall be followed.


27. It is noteworthy that s 60(1)(e)(ii) expressly allowed the Provincial Executive Council to cause a readvertisement of the position if it formed the view that none of the persons on the list submitted to it by the Public Services Commission was suitable for appointment.


28. The above version of s 60 was repealed and replaced by a new s 60 by virtue of s 15 of the Public Services (Management) (Amendment) Act 2020, which came into operation on 18 May 2020 (see National Gazette No G276 of 15 May 2020).


29. The new s60 states:


(1) The procedures relating to the substantive appointment of a Provincial Administrator under Section 73(2) of the Organic Law on Provincial Governments and Local-Level Governments are as follows:

(2) The Commission must consider the list of five candidates and all the applications received in response to the advertisement under Paragraph (a)(iii) and the Commission must compile a list of three candidates, in order of preference and submit the list to the Provincial Executive Council concerned.

(3) The Provincial Executive Council must consider the list from the Commission and submit to the National Executive Council, a list of three persons in order of preference, and the National Executive Council shall make the appointment from that list.

(4) Where –

the Departmental Head of the Department of Personnel Management must justify the re-appointment of that person and notify the Commission accordingly and the procedure under this section must not apply for the re-appointment.


(5) On receipt of a notification under Subsection (4), the Commission must recommend to the Provincial Executive Council that the person be re-appointed and –

30. There is no equivalent in the new s 60 to the old s 60(1)(e)(ii), which expressly allowed the Provincial Executive Council to cause a readvertisement of the position if it formed the view that none of the persons on the list submitted to it by the Public Services Commission was suitable for appointment. Hence the defendants’ argument that the power that the Provincial Executive Council previously had, to cause a readvertisement, has been removed.


31. The other statutory provision the defendants rely on, to argue that the Provincial Executive Council was too slow to act and therefore did not discharge its obligation to submit a list of three names, is s 5 (vacancy in the office of a provincial administrator) of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003, which states:


(1) Subject to Section 6, where the office of Provincial Administrator is vacant or about to become vacant, the Departmental Head of the Department of Personnel Management shall, on the advice of the relevant Governor of the Province following a decision of the Provincial Executive Council, declare the office vacant.


(2) Where a vacancy has been declared under Subsection (1), the Departmental Head of the Department of Personnel Management shall cause to be advertised the position in the National Gazette in a standard format.


(3) Where an office has been advertised in accordance with Subsection (2)—


(a) the Departmental Head of the Departmental of Personnel Management shall ensure that a Job Description and Person Specification for the office in prescribed format is prepared, reflecting the Government's policy requirements and Provincial Executive Council priorities; and


(b) the Departmental Head of the Department of Personnel Management shall procure candidates for appointment through advertisement and shall obtain the curriculum vitae of the candidates in a standard format; and


(c) the Departmental Head of the Department of Personnel Management shall provide to the Public Services Commission a list of not less than five candidates (together with a list of all unsuitable candidates) who satisfy the requirements of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads) Regulation 2003; and


(d) the Public Services Commission shall rank the candidates as assessed against the requirements of the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads) Regulation 2003 and any other special requirements for competencies required by the Provincial Government, and compile a list of five candidates with its recommendations to the Provincial Executive Council; and


(e) the Chairman of the Public Services Commission, through the Departmental Head of the Department of Personnel Management, shall submit the list of five candidates to the Provincial Governor, who shall table before the Provincial Executive Council the list of names and the assessments on the most suitable candidates for appointment to the office; and


(f) within a period of 14 to 30 days of the receipt of a list of five candidates under Paragraph (e), the Provincial Executive Council may either—


(i) select three candidates and submit them to the Minister for Public Service in preferred order, for inclusion in a Submission to the National Executive Council prepared by the Departmental Head of the Department of Personnel Management; or

(ii) reject all candidates, and request a new list from the Departmental Head of the Department of Personnel Management, in which case, the procedure specified in Paragraphs (b) to (e) inclusive shall be followed; and


(g) where the Provincial Executive Council has made a selection of three names and has submitted them to the Minister for Public Service, he shall present a Submission to the National Executive Council in respect of the three candidates selected in order of preference by the Provincial Executive Council; and


(h) provided that the Provincial Executive Council has complied with Paragraph (f), the National Executive Council shall make an appointment taking into account the order of preference indicated by the Provincial Executive Council; and


(i) the Secretary of the National Executive Council, in consultation with the Chairman of National Executive Council, shall cause the appointment to be published in the National Gazette; and


(j) the Minister for Public Service shall officially inform the Chairman of the Provincial Executive Council of the successful candidate; and


(k) the Departmental Head of the Department of Personnel Management shall brief the appointee on specific job requirements and terms and conditions, including a draft of the proposed contract of employment; and


(l) the Departmental Head of the Department of Personnel Management shall inform any incumbent in the office of Provincial Administrator of the decision made by the National Executive Council prior to the making of a public announcement; and


(m) the Departmental Head of the Department of Personnel Management and the Secretary of the National Executive Council shall arrange with the State Solicitor for the contract of employment to be signed by Head of State.


Which version of s 60 applies?


32. At the relevant time (from 31 July 2020, when the Provincial Executive Council was given the list by the Public Services Commission of its three preferred candidates, until 20 December 2020, when the National Executive Council appointed Mr Balg) the relevant law was the new s 60 of the Public Services (Management) Act 1995. The new s 60 commenced operation on 18 May 2020.


33. The new s 60 removes the express right available to the Provincial Executive Council under the old s 60(1)(e)(ii) to request readvertisement.


34. The new s 60 confines, by s 60(3), the Provincial Executive Council, in its submission of a list of three names to the National Executive Council, to the three names submitted to it by the Public Services Commission. The Provincial Executive Council is permitted to list the three persons in order of preference. But it is not permitted, by the new s 60, to travel beyond the list submitted to it by the Public Services Commission.


Constitutional issues arising from the new s 60


35. The constraints on how the Provincial Executive Council exercises its discretion under s 73(2) of the Organic Law, to submit a list of three names to the National Executive Council, are in my view constitutionally problematic.


36. I note that s 73(5) of the Organic Law provides that an Act of the Parliament “shall make provision for ... procedures of appointment ... of Provincial Administrators”. However I think that what the new s 60 does, by removing the express power the Provincial Executive Council had to ‘reject’ a list of three recommended candidates and to insist on readvertisement, and by confining the Provincial Executive Council in its determination of three preferred candidates to just the three names submitted to it by the Public Services Commission, is going far beyond providing for procedures of appointment. The new s 60 is a significant curtailment of the power of the Provincial Executive Council, conferred by s 73(2) of the Organic Law, to submit a list of three names to the National Executive Council.


37. The old s 60 was also constitutionally problematic. It also curtailed the power of the Provincial Executive Council to submit a list of three names to the National Executive Council. But it offset that curtailment by the back-stop measure of allowing the Provincial Executive Council to insist on readvertisement.


38. The reason I say these provisions are constitutionally problematic is that they constrain, in ways not authorised by the Organic Law, the power of the Provincial Executive Council to submit a list of three names to the National Executive Council. The constraints are so severe that these provisions appear to be in excess of the authority given to the Parliament by s 73(5) of the Organic Law to make laws for the procedures of appointment of Provincial Administrators; indeed so far in excess of that authority that the constraints appear to be inconsistent with s 73(2) of the Organic Law.


Is the new s 60 unconstitutional?


39. The potential consequences of the excess of authority and inconsistency apparently entailed in the new (and to a lesser extent in the old) s 60 must be viewed through the lenses of ss 10 and 11 of the Constitution.


40. Section 10 (construction of written laws) states:


All written laws (other than this Constitution) shall be read and construed subject to—


(a) in any case—this Constitution; and

(b) in the case of Acts of the Parliament—any relevant Organic Laws; and

(c) in the case of adopted laws or subordinate legislative enactments—the Organic Laws and the laws by or under which they were enacted or made,


and so as not to exceed the authority to make them properly given, to the intent that where any such law would, but for this section, have been in excess of the authority so given it shall nevertheless be a valid law to the extent to which it is not in excess of that authority.


41. Section 11 (Constitution etc as Supreme Law) states:


(1) This Constitution and the Organic Laws are the Supreme Law of Papua New Guinea, and, subject to Section 10 (construction of written laws) all acts (whether legislative, executive or judicial) that are inconsistent with them are, to the extent of the inconsistency, invalid and ineffective.


(2) The provisions of this Constitution and of the Organic Laws are self-executing to the fullest extent that their respective natures and subject-matters permit.


42. Before going further, I point out that these issues, though alluded to in the interlocutory stages of this case and to some extent in submissions for the plaintiffs, were not squarely addressed at the trial.


Should these constitutional issues be referred to the Supreme Court?


43. I am treading carefully due to the dictates of s 18 (original interpretative jurisdiction of the Supreme Court) of the Constitution:


(1) Subject to this Constitution, the Supreme Court has original jurisdiction, to the exclusion of other courts, as to any question relating to the interpretation or application of any provision of a Constitutional Law.


(2) Subject to this Constitution, where any question relating to the interpretation or application of any provision of a Constitutional Law arises in any court or tribunal, other than the Supreme Court, the court or tribunal shall, unless the question is trivial, vexatious or irrelevant, refer the matter to the Supreme Court, and take whatever other action (including the adjournment of proceedings) is appropriate.


44. I have no power, sitting in the National Court, to declare that s 60 of the Public Services (Management) Act 1995 is unconstitutional. By the same token, I cannot ignore the obvious constitutional implications of s 60.


45. I am not obliged to refer every question of interpretation of a Constitutional Law that arises in every case to the Supreme Court. None of the parties have asked me to refer any questions to the Supreme Court under s 18(2) of the Constitution. Though I must say, I have thought about doing so on my own initiative.


46. The obligation of the National Court to refer questions of constitutional application or interpretation to the Supreme Court does not arise if the answers to such questions are straightforward and require little or no interpretation (Mt Kare Holdings Pty Ltd v Akipe [1992] PNGLR 60, Lowa v Akipe [1992] PNGLR 399, Alois Kingsley Golu v Regett Marum (2013) N5104). Nor does it arise if the questions are “trivial, vexatious or irrelevant”. The questions I am raising as to the constitutionality of the new s 60 are “irrelevant”, in the sense that I can decide this case without a determination of the questions by the Supreme Court. I am mindful that the National Court must be judicious and careful in deciding whether it is necessary to make a reference under s 18(2) (Lupari v Somare [2008] PNGLR 455).


47. I also think that to make a reference under s 18(2) would lead to a protracted delay in resolution of this case. The questions would need to be carefully drafted, in consultation with the parties, then referred to the Supreme Court. Then, after hearing and determining the questions, in a process that would take many months, rather than weeks, it is likely that the matter would be sent back here to the National Court for resolution. Such a delay would not be in anyone’s interests, least of all the People of Western Highlands Province, who need certainty as soon as possible as to who is substantively and lawfully occupying the very important office of Provincial Administrator.


48. I can decide this case quickly if I don’t make a reference to the Supreme Court. Then, if any of the parties are aggrieved, perhaps because of the way I am grappling with these constitutional issues, they can appeal to the Supreme Court, and the case can be settled, finally and more quickly by the Supreme Court than if the s 18(2) route is taken. Therefore, I have decided not to refer any questions of constitutional interpretation or application to the Supreme Court.


How should the new s 60 be applied in this case?


49. The new s 60 of the Public Services (Management) Act 1995 appears – to the extent that it constrains the discretion of the Provincial Executive Council in deciding on the list of three names to be submitted to the National Executive Council and purports to remove the power of the Provincial Executive Council to cause a readvertisement of the position – to exceed the authority given to the Parliament by s 73(5) of the Organic Law to pass an Act that prescribes the procedures for appointment of Provincial Administrator. It appears, also, to be inconsistent with s 73(2) of the Organic Law.


50. There is a real chance that if the constitutionality of the new s 60 were to be tested in appropriate proceedings before the Supreme Court, it would be concluded that the provision is unconstitutional.


51. In these circumstances, taking account of the lack of authority of the National Court to declare that s 60 is unconstitutional and the reasons already given for concluding that it is neither necessary nor appropriate to refer the question of constitutionality to the Supreme Court, I will take the same approach as taken by Lay J in Edo v Brown (2006) N3071, a case regarding the appointment of the West New Britain Provincial Administrator. Section 60, and other laws inferior to the Organic Law such as the 2003 Regulation, must be read down and regarded as providing only guidelines – not mandatory and enforceable requirements – as to how the powers of a Provincial Executive Council under s 73(2) of the Organic Law are to be exercised.


52. If a Provincial Executive Council is content with being told by the Public Services Commission what list of three names it is required to submit to the National Executive Council, so be it.


53. If a Provincial Executive Council is content with the view that it has no power to reject a list submitted to it by the Public Services Commission, and no power to trigger a readvertisement of the position, so be it.


54. If a Provincial Executive Council is not content with those scenarios and wants to compile its own list of three names or wants to reject the list submitted to it by the Public Services Commission, it must be permitted to do so. That is what s73(2) of the Organic Law allows. Those were the principles given full effect by Justice Davani in Peter Ipatas v Sir Michael Somare (2010) N4190, a judicial review of the appointment of the Enga Provincial Administrator. As in this case, the appointment was made by the National Executive Council without a list of three names being submitted to it by the Provincial Executive Council. Her Honour regarded it as a clear case of the National Executive Council acting ultra vires the Organic Law. Her Honour stated:


When the NEC knew that it did not have a list from the PEC, it should not have continued the process. The evidence is that the NEC did not have a list from the PEC but still continued with the process.


The NEC and its officers facilitating that process are responsible for this unforgiveable fiasco. Their duties, amongst others, is to be vigilant and protective of the processes that it polices and executes. They must not bow down to political pressure but must be prepared to ride out a storm in the protection of the democratic principles laid out by the men and women who fought to gain the freedom that we all now enjoy and treasure. In the circumstances of this case, it is clear that the PEC had not submitted its list. The NEC, in exercising its Constitutional duties that it is duty bound to perform, should have halted the process. But it did not


Instead, as it happened in this case, the NEC exercising people’s powers vested in them by legislation, endorsed a decision that is wrong in law and that is now causing much hardship to the administration of Enga and its government and constituents.


Therefore, I find that the NEC decision under review is not only ultra vires but also an abuse of powers at the highest level of government.


55. I see no material difference in the facts of that case and those of the present case. That case was decided ten years ago. Though s 60 of the Public Services (Management) Act 1995 has changed since then, s 73(2) of the Organic Law – the dominant law – has not.


What is the effect of the removal of power to cause readvertisement?


56. The fact that the new s 60 has purported to remove (impliedly, not expressly) from a Provincial Executive Council, the power to trigger a readvertisement of the position in cases where it is not satisfied with the three names submitted to it by the Public Services Commission, is of no consequence. There was no need for such an express power to be given by the Public Services (Management) Act 1995, in the first place. The power has already been conferred by the broad and unrestrained power inherent in s 73(2) of the Organic Law. It remains in place.


57. Nothing in the Organic Law or the Public Services (Management) Act 1995 or the 2003 Regulation prevented the Provincial Executive Council from taking the position it did, through Mr Wingti’s letter of 8 September 2020 to the Secretary for Personnel Management, regarding the list of three names submitted to it by the Public Services Commission. He was not too slow to act. The time limits in the 2003 Regulation are mere guidelines. There are no time limits in s 73(2) of the Organic Law. The Provincial Executive Council was requesting readvertisement of the position. It was not giving up the opportunity to submit a list of names to the National Executive Council. Nor was it giving up its right to submit a list of three names.


What is the effect of the Provincial Executive Council not submitting a list?


58. The request of the Provincial Executive Council for readvertisement of the position was not acceded to. It was ignored. An appointment was made without the National Executive Council having before it a list of three names submitted to it by the Provincial Executive Council. An appointment was made, inevitably, from outside the required list. These are mandatory requirements of the Organic Law, being preconditions to a valid appointment, which were not waived by the Provincial Executive Council, and which were not met by the National Executive Council. The appointment of Mr Balg was therefore unlawful.


ISSUE 3: HAVE ANY OF THE GROUNDS OF JUDICIAL REVIEW BEEN ESTABLISHED?


59. Two grounds of review pleaded in the plaintiffs’ further amended Order 16, Rule 3(2)(a) statement filed 18 February 2021 have been established: error of law on the face of the record and ultra vires. It is unnecessary to consider any other grounds.


Error of law on the face of the record


60. The instrument of appointment of Mr Balg, recording the decision of the National Executive Council of 20 December 2020 and published in the National Gazette of 22 December 2020, contains these words:


THE NATIONAL EXECUTIVE COUNCIL, by virtue of the powers conferred by Section 73(2), 73(2A) and 73(2B) of the Organic Law on Provincial Governments and Local-Level Governments and Section 60 and 60A of the Public Services (Management) Act 1995, and all other powers it enabling, on the recommendation from the Western Highlands Provincial Executive Council, following procedures prescribed by or under the Public Services (Management) Act 1995, hereby ...


appoint Elvis Mark Balg as Provincial Administrator for Western Highlands Provincial Administration, for a period of four (4) years,


with effect on and from the date of publication of this instrument in the National Gazette. [Underlining added.]


61. The underlined words are factually incorrect as there was no recommendation from the Western Highlands Provincial Executive Council for the appointment of Mr Balg or anyone else as Provincial Administrator. The underlined words amount to a false statement, a serious misrepresentation of the facts, which are supposed to provide the legal basis of the decision of the National Executive Council. This amounts to an error of law on the face of the official record of the National Executive Council.


Ultra vires


62. It is an essential prerequisite to the lawful exercise of the power of appointment by the National Executive Council under s 73(2) of the Organic Law that there be consideration of “a list comprising the names of three persons submitted by the Provincial Executive Council concerned”. There was no such list in this case. The decision of the National Executive Council to appoint Mr Balg as Provincial Administrator was made without the power to do so. The decision was made ultra vires.


ISSUE 4: WHAT ORDERS SHOULD THE COURT MAKE?


63. As two grounds of review have been upheld, the decision of the National Executive Council of 20 December 2020 to appoint Mr Balg, is susceptible to judicial review.


64. It does not necessarily follow that the Court will make the declarations and orders sought by the plaintiffs. In any judicial review the court’s determination of the review proceeds in two stages:


(a) determining whether an applicant has proven one or more grounds of review, and if yes –


(b) deciding what remedies, if any, should be granted (Dale Christopher Smith v Minister for Lands (2009) SC973; Isaac Lupari v Sir Michael Somare (2008) N3476).


65. The remedies sought by the plaintiffs are set out in the amended notice of motion filed on 18 February 2021 under Order 16, Rule 5 of the National Court Rules:


  1. An order in the nature of certiorari be made to remove into this Honourable Court and quash the decision of the National Executive Council (NEC) made on the 20th day of December 2020 and published in the National Gazette No G903 dated 22 December 2020, headed, revocation of acting appointment and appointment of Western Highlands Provincial Administration whereby the NEC:
  2. A declaration that the decision of the NEC made on the 20th day of December 2020 and to take effect on 22nd December 2020, and published in the National Gazette No G903 dated 22nd December 2020 headed, revocation of acting appointment and appointment of Western Highlands Provincial Administrator was made contrary to Section 73(2) of the OLPGLLG and Section 60(3) of the PSMA as amended by Section 15 of the Public Services (Management) (Amendment) Act 2020 (No 5 of 2020) (“PSMA Amendment No 5 of 2020”) and Section 73(2B) of the OLPGLLG and Section 60B(a)(b)(c) and (d) of the PSMA in that:

and therefore is null and void and of no effect.


  1. An order of mandamus compelling the first plaintiff and third plaintiff [sic] and their agents and servants, in particular the Secretary, Department of Personnel Management to comply with the statutory requirements of;
  2. A declaration that as of 20th December 2020 to date, Mr Joseph Neng remains as the Acting Provincial Administrator for Western Highlands Province.
  3. Alternatively, an order pursuant to s 155(4) of the Constitution that Mr Joseph Neng be reinstated and reappointed as Acting Provincial Administrator for a period of three months, as of the date of this order pending the appointment of a substantive Provincial Administrator of Western Highlands Province.
  4. Further, alternatively an order pursuant to s 155(4) of the Constitution that in the event that Mr Joseph Neng is not reinstated as the Acting Provincial Administrator, Mr Stanley Maip be appointed as Acting Provincial Administrator for a period of three months as of the date of this order, pending the appointment of a substantive Provincial Administrator of Western Highlands Province.
  5. Such further or other orders as the Court deems fit under the circumstances or as deemed appropriate under s 155(4) of the Constitution.
  6. The defendants shall pay the plaintiffs’ costs.

66. Judicial review remedies are inherently discretionary in nature. All remedies sought might be granted. All might be refused. Some might be granted. Some might be refused. All such options are available to be exercised.


67. However, the Court is not confined in its determination of choice of remedy to what the applicants have sought. I adopt the position of the majority of the Supreme Court (Amet CJ and Los J) in Application by John Mua Nilkare [1998] PNGLR 472, as I did in the recent cases of Namah v Leadership Tribunal (2020) N8415 and Kalaut & Yakasa v National Executive Council (2021) N8709. In judicial reviews, full voice and effect must be given to s 155(4) of the Constitution when the Court is exercising its discretion as to remedies in cases where an applicant has proven one or more grounds of judicial review. Section 155(4) (the National Judicial System) states:


Both the Supreme Court and the National Court have an inherent power to make, in such circumstances as seem to them proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of a particular case.


68. In cases where a plaintiff succeeds with a ground of judicial review, the Court will look at all the circumstances of the particular case before it, to craft a proper remedy, such as is necessary to do justice in those circumstances.


69. In exercising the discretion of the Court, I take into account the special and vital role of provincial governments in the constitutional structure of government in Papua New Guinea. Cooperation, Communication and Consultation are the three Cs that should govern the relationship between provincial governments and the National Government. This was the principle at the heart of the judgment of the Supreme Court in SC Ref No 1 of 1984; Re Morobe Provincial Government [1984] PNGLR 212, a case regarding the appointment by the Prime Minister of the administrative head of Morobe Province. Particularly apposite for the purposes of the present case is the following dicta of McDermott J:


Common sense dictates that when a chief administrative officer, the head of the administration in the province is forced upon an unwilling provincial executive council, effective administration becomes impossible. Our system of government by its nature is fragile. Its survival is dependent upon co-operation between its constituent parts. This co-operation is based upon trust, confidence and respect. Without these bonds between the elected representatives and their administrators, government will simply not work.


70. It is clear that in the present case, the National Executive Council’s appointee, Mr Balg, is, with respect, being forced upon an unwilling Western Highlands Provincial Executive Council, who regard Mr Balg as an outsider, without the proven track record of their preferred candidate, Joseph Neng (the third plaintiff), who has held the position on an acting or substantive basis for five years.


71. I have decided, in principle, to grant the relief sought in paragraphs 1(ii), 2(i), 3(ii) and 7 of the amended notice of motion filed on 18 February 2021.


72. As to paragraph 1 (ii), it is appropriate to make an order in the nature of certiorari, quashing the appointment of Mr Balg.


73. As to paragraph 2(i), it is appropriate to make a declaration that Mr Balg’s appointment is unlawful.


74. As to paragraphs 3(ii) and 7, it is appropriate to make an order in the nature of mandamus compelling the governmental officers and bodies involved in the appointment of a provincial administrator, including the Western Highlands Provincial Executive Council, to consider reappointing the Provincial Executive Council’s preferred candidate, Joseph Neng (the third plaintiff) as Provincial Administrator. The mechanism exists in the Public Services (Management) Act 1995, as amended in 2020 to lift the age of retirement to 65 years, for Mr Neng to be reappointed.


75. It is neither necessary nor appropriate to grant the other relief sought by the plaintiffs. I have paid little attention to their arguments regarding alleged illegality in the parts of the decision of the National Executive Council of 20 December 2020 regarding the revocation of the acting appointment of Mr Neng. Those arguments carry little weight and are academic in nature and distract attention from what is the focus of this judicial review: whether errors of law attended the decision to appoint Mr Balg as Provincial Administrator.


CONCLUSION
76. The requirement in s 73(2) of the Organic Law that the National Executive Council appoint a provincial administrator from a list comprising the names of three persons submitted by the Provincial Executive Council was mandatory.


77. All laws inferior to s 73(2) of the Organic Law, including the Public Services (Management) Act 1995 and its 2020 amendments and the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003, which on their terms appear to constrain the discretion conferred on a Provincial Executive Council as to the list of names it can submit to the National Executive Council and limit its power to decline to submit a list to the National Executive Council, might be unconstitutional.


78. However, the National Court lacks authority to make a declaration to that effect in these proceedings, and no such declaration was sought; and it was unnecessary to refer any constitutional questions to the Supreme Court under s 18(2) of the Constitution.


79. Those inferior laws cannot be ignored, but must be read down and regarded as providing guidelines, subject to the overriding power of a Provincial Executive Council to restrain the discretion of the National Executive Council as to who it appoints by submitting to it a list of three names from which the appointment must be made or by declining to submit any list.


80. Here, the Provincial Executive Council did not submit a list of three names to the National Executive Council, which therefore lacked power to appoint Mr Balg.


81. Nothing in the Organic Law or the Public Services (Management) Act 1995 or the 2003 Regulation prevented the Provincial Executive Council from taking the position it did regarding the list of three names submitted to it by the Public Services Commission, including requesting readvertisement of the position and declining to submit a list to the National Executive Council.


82. I will declare that the appointment of Mr Balg as Provincial Administrator was unlawful. I will order that the appointment be quashed. I will declare that the circumstances provided for by s 60(4) of the Public Services (Management) Act 1995 exist in respect of the office of Provincial Administrator, Western Highlands Province, in that the office is vacant and the person who held that office before the vacancy, Joseph Neng, is willing and eligible to continue in that office. I will order that specific things be done for the purpose of filling the vacancy expeditiously.


83. I will order that the first and third defendants pay the plaintiffs’ costs of the proceedings as it is the State and its agencies and their failure to follow the law that have led to the unlawful appointment of Mr Balg. The second defendant, Mr Balg, has defended the proceedings vigorously and engaged private counsel to represent him. However, he is not responsible for the errors that occurred in his appointment and I exercise my discretion to exclude him from the order that the defendants pay the plaintiffs’ costs; in fact, I will order that the first and third defendants pay his costs, as well as the plaintiffs’ costs.


ORDER


84. The National Court orders, in determination of the plaintiffs’ amended notice of motion filed on 18 February 2021 and pursuant to s 155(4) of the Constitution, in the exercise of the inherent power of the Court to make in circumstances as seem to it proper, orders in the nature of prerogative writs and such other orders as are necessary to do justice in the circumstances of this particular case, that:


  1. The application for judicial review is granted in that the relief sought in paragraphs 1(ii), 2(i), 3(ii) and 7 of the plaintiffs’ amended notice of motion filed on 18 February 2021 is, in principle, granted, subject to and in accordance with the following declarations and orders.
  2. It is declared that the appointment by the National Executive Council, notice of which was published in National Gazette No G903 on 22 December 2020, of Elvis Mark Balg as Provincial Administrator for Western Highlands Provincial Administration was unlawful.
  3. It is ordered in the nature of certiorari that the decision of the National Executive Council, notice of which was published in National Gazette No G903 on 22 December 2020, to appoint Elvis Mark Balg as Provincial Administrator for Western Highlands Provincial Administration, is removed into this Court and is quashed, forthwith.
  4. It is declared that the circumstances provided for by s 60(4) of the Public Services (Management) Act 1995 exist in respect of the office of Provincial Administrator, Western Highlands Province, in that the office is vacant and the person who held that office before the vacancy, Joseph Neng, is willing and eligible to continue in that office, and it is ordered in the nature of mandamus that the following things shall be done in the discharge of duties imposed by ss 60(4) and 60(5) of the Public Services (Management) Act 1995 on the Departmental Head of the Department of Personnel Management, the Public Services Commission, the Western Highlands Provincial Executive Council and the National Executive Council, for the purposes of filling the vacancy:
  5. Other relief sought in the plaintiffs’ amended notice of motion filed on 18 February 2021 is refused.
  6. The person appointed by this Court by the order of 31 December 2020 in these proceedings as acting Provincial Administrator, Western Highlands Province, shall continue to act in that capacity until a substantive appointment is made.
  7. The first and third defendants shall pay the plaintiffs’ and the second defendant’s costs of these proceedings on a party-party basis, which shall, if not agreed, be taxed.
  8. The plaintiffs shall serve this order as soon as is practicable on the Public Services Commission and the Departmental Head of the Department of Personnel Management.

Judgment accordingly.
________________________________________________________________
Mawa Lawyers: Lawyers for the First & Third Plaintiffs
Tamutai Lawyers: Lawyers for the Second Plaintiff
Solicitor-General: Lawyer for the First & Third Defendants
Raymond Obora Lawyers: Lawyers for the Second Defendant


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