N9312
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 73 OF 2021 (IECMS)

BETWEEN:
APEO FUATA SIONE IN HIS CAPACITY AS CHAIRMAN AND FOR AND ON BEHALF OF THE COMMISSIONERS OF THE PUBLIC SERVICES COMMISSION
Plaintiff

AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
GORDON KEGA
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Miviri J
2021: 18th & 23rd November

PRACTICE & PROCEDURE – Judicial Review – Originating Summons – Application for Leave – Section 193 & 208B Constitution Amendment No 38 of 2014 – Participation of PSC removed to Review only – No Cause of Action for Leave – NEC complied with Law – No Arguable Case – No locus Standi – PSM Act 2014 Current Law – Reliance on Repealed Law PSM Act 1995 – Leave for Judicial Review Not made out – Dismissed – Cost follow the event.

Cases Cited:

NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70
Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122
Counsel:

T. Torata, for Plaintiffs
R. Mobiha, for the Defendants

RULING
 23rd November, 2021
1.	MIVIRI, J: This is the decision on the application for leave for Judicial Review filed by the plaintiff by originating summons of the 31st May 2021. 

2.	Together it is supported by a Statement in Support, an affidavit verifying the facts of the Plaintiff, affidavit in support of the Plaintiff, Notice to the Minister for Justice, and a further affidavit of Tobert Torato. 

3.	Because Leave is premised on whether the plaintiff has locus standi, and that he has exhausted internal process and procedure in the matter. And he has not unduly delayed in bringing the matter. And finally, there is arguable merit in the cause sought. The plaintiff has invoked that these are established by the evidence that he has relied beyond the balance of preponderance. In so doing he has invoked primarily Order 16 Rule 3 (1) and (2) of the National Court Rules, to bring into Court the decision of the First Defendant made on the 24th February 2021 to appoint the Second Defendant as the Auditor General through decision No. 27 of the 2021 and published in the National Gazette No. G142. 

4.	Relevantly the following come to light from the material that he has filed set out above. Plaintiff is the Chairman of the Public Services Commission (PSC). And as such he has the legal capacity to be sued and to sue. There are two other Commissioners of the PSC comprising the PSC, a Constitutional Office established under section 190 of the Constitution. The plaintiff relies on section 193 and 208B of the Constitution as giving it a role in participating in the process of an appointment of a Departmental Head, Provincial Administrators, CEO of Regulatory Statutory Authorities. Reliance on that section in this way cannot be sustained as section 193 and 208B have been amended by Constitutional Amendment (No. 38) (Appointment of Certain Offices) Law 2014, certified 14th May 2014, which is as follows; Section 193 of the Constitution is amended:
(a) in Subsection (1A) by repealing the words "recommended by the Public Service Commission following" and substituting them with the following words:

"selected and recommended through merit based selection and appointment"; and

(b) in Subsection (1B) by repealing the words, "in accordance with a recommendation by the Public Service Commission following", and substituting them with the following words:

"given in accordance with"; and

(c) in Subsection (1C) by repealing the words "a recommendation by the Public Services Commission following"; and

(d) in Subsection (1D) by repealing the words "a recommendation by the Public Service Commission following"; and

(e) by inserting a new subsection after Subsection (1D) as follows:

"(1E). Notwithstanding the procedures provided by an Act of Parliament under Subsection (1A) to (1D), the Public Services Commission shall exercise its powers under Section 191 from time to time to review the appointments made under Section 193.".

2. APPOINTMENT TO CERTAIN OFFICES OF REGULATORY STATUTORY AUTHORITIES (AMENDMENT OF SECTION 208B).

Section 208B of the Constitution is amended in Subsections (2), (3), (4) and 5 by deleting the following words appearing in each of those subsections:

"in accordance with the recommendation from the Public Services Commission".

5.	The reliance by the Plaintiff upon the old section 193 would have given it basis for this application to bear any fruit as he has pleaded. It is clear by the words of this amendment that the PSC is no longer at the helm of the appointment of Departmental Head, Provincial Administrators, CEO of Regulatory Statutory Authorities. That has now been taken away or reduced to, "selected and recommended through merit based selection and appointment by section 193 (1A). And "given in accordance with" by Section 193 (1B). And getting out the participation of the PSC to an optional play once in a while under section 193 (1C) (1D) to a new section (1E) set out above which downgrades the role of the plaintiff to reviewing which is not primary to the appointment, but much later, upon a complaint against the appointment. Which is not the case here. The plaintiff has no cause of action because he has no locus Standi in the matter. The appointment has been made by the National Executive Council by Decision No. 27 of 2021 and published in the National Gazette No. G142.

6.	Process and Procedure has been adhered to because the Second defendant was acting Auditor General pending the appointment of a permanent one. And the position was advertised by the Department of Personal Management (DPM) in the National Gazette No. PS G17 on the 07th August 2019. A total of 18 applicants applied. The Central Agencies and Co-ordination Committee (CACC) of the DPM conducted a merit-based assessment of all the applicants and compiled a pre-screening Report. In which it short listed five (5) candidates for that position. Which report was submitted to the PSC by the Secretary of DPM on the 12th December 2019. And the candidates were; Gordon Kega (second defendant); Thomas G. Holland; Lemeki Ila; Joseph Felix Wak; and Anton Semeko.

7.	When the plaintiff received this report from the CACC it conducted its own merit-based assessment of the five candidates and compiled its own report relating entitled Assessment Report on the Short List of Candidates for the position of Auditor General- Auditor General’s office on the 04th March 2020. In it it shortlisted three (3) candidates, Lemeki Ila; Thomas G. Holland and Joseph Felix Wak for the said position. That was submitted affixed to a letter to Honourable Soroi Eroi, MP, Minister for Public Service, for his consultation with the Public Accounts Committee for its view before making a submission to the NEC for the appointment to be made.

8.	The NEC deliberated and appointed the second defendant as the Auditor General by Decision No. 27 of 2021 and published in the National Gazette No. G142. This prompted the PSC to write to the Secretary to the Department of Prime Minister Ivan Pomaleu, and the National Executive Council on the 05th March 2021, prompting that the second defendant was not on the short list. Because he was 60 years and 8 months making him ineligible for the appointment pursuant to section 17 (2) of the Organic Law on Certain Constitutional Office Holders, which sets the mandatory retirement age for the Auditor General, and other Constitutional Holders as 60 years of age.

9.	And Copies of this letter was also made available to the Prime Minister Right Honourable James Marape and Secretary DPM Tais Sansan. Further on the 19th March 2021 the PSC wrote to the Right Honourable Prime Minister James Marape and chairman of the NEC urging him to rescind the decision in appointing the Second Defendant as Auditor General, setting out the grounds earlier served as set out above. Including that the second defendant was not on the final list that the Plaintiff had submitted to the NEC. Because the exercise of discretion by the NEC has exceeded the authority given it is prima facie arguable and the plaintiff has standing to examine it: NTN Pty Ltd v Board of the Post & Telecommunication Corporation [1987] PNGLR 70. He is affected in the role that he plays in the scheme of procedure set out. 

10.	This argument by the Plaintiff bears no fruit, because of the amendment to section 193 set out above. That is the current law and this appointment was made 24th February 2021. The amendment was certified 14th May 2014. It is the current law which takes away the role that the PSC initially played under the old section 193 and section 208B, which would have primarily stemmed the case for the Plaintiff. The law is very clear the Plaintiff is no longer at the helm, but after review, which is instituted upon complaint by parties effected, or a Public Servant effected. That is not the case for the Plaintiff here. He has no locus standi, nor does he demonstrate from that law, Sections 193 and 208B of the Constitution arguable basis to open the door for judicial review. These are the primary grounds that would have advanced to leave for him. They fail and his cause of action falls with costs following. Because the other grounds for judicial review do not save his cause given.

11.	It is plain that the law has been complied to in the appointment of the Auditor General. Section 193 of the Constitution no longer empowers the PSC in the way that he has argued here. There is no basis in law discharged on the balance of preponderance demonstrated by the facts and circumstances give here to prima facie derailing that decision: Kekedo v Burns Philp (PNG) Ltd [1988-89] PNGLR 122. In other words, there are no breaches of procedure by Statute and subordinate legislation, which prima facie show out on the balance required of error of law, ultra vires, and unreasonableness within the Wednesbury principles, and generally abuse of powers as arguable basis to advance to leave.

12.	Even the reliance on section 56 of the Public Service Management Act 1995 does not advance the case for the Plaintiff as that is now amended by the Public Service Management Act 2014, so that is not the law current given. Section 56 PERSONS WHO HAVE RESIGNED FROM THE PUBLIC SERVICE TO BECOME CANDIDATES AT ELECTIONS. The section relied law does not advance the cause of action for leave for the Plaintiff. 

13.	What has happened here is that the Constitution has been amended in the terms set out above. The enabling Constitutional provisions are not there empowering the PSC here. Even section 213 of the Constitution, Establishment of the Office of the Auditor General does not help the plaintiff’s cause of action for leave. Its words do not empower the PSC to advance this cause of action. It is as follows, 213. ESTABLISHMENT OF THE OFFICE OF AUDITOR-GENERAL.
(1) An office of Auditor-General is hereby established.
(2) The Auditor-General shall be appointed by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given after receiving reports from the Public Services Commission and the Public Accounts Committee.
(3) In the performance of his functions under this Constitution, the Auditor-General is not subject to the control or direction of any person or authority.

The language “given after receiving reports from the Public Services Commission and the Public Accounts Committee,” is not empowering the plaintiff. The NEC is not bound to rely on the report that it makes and must under all circumstances implement that report in the appointment it makes of the Auditor General. Here it has failed it has confirmed the Acting Auditor General to the chair. It has breached this section. Reading that section literally, there is no obligation upon the NEC to mandatorily adhere to the report by the PSC and the Public Accounts Committee. They are part of the material it considers making the recommendation to the head of State who makes the appointment. Here there is no room for leave for judicial review in favour of the plaintiff. There is really no arguable basis. He has no locus standi. The other grounds do not advance his cause and it fails with costs to the defendants on a party to party basis forthwith.

14.	Which leads me now to address the professionalism of State Counsel the Office of the Solicitor General on a number of serious judicial review matters pending decision before this Court. Here again as with the others pending decision by counsel on record Ms Mobiha who does not have an extract of argument despite directions to that effect on record. They are orders of the Court and must be complied with. It is not excusable to say the State does not either oppose or takes a neutral position in respect of the matter. It is not good enough for the State to fund an office of the Government that comes into Court and does not assist the Court. As of this Judgment that practise must cease forthwith. If a notice of intention to defend filed by the State is on the record of the proceedings, as is the case here of the 11th August 2021. It ought to be defended by compliance of court directions, with extract filed and argument advanced to assist the Court. 

15.	In the instance counsel has not even filed an extract let alone submissions orally to assist the Court. This is nothing less than a very unprofessional discharge of duties on the part of State Counsel on this occasion by not taking a position on the application by the plaintiff. What has happened is Constitutional provision relied primarily has been amended and also the PSM Act has been amended to 2014, not 1995 as submitted by the Plaintiffs Counsel. The effect is that laws not current were relied on by counsel for the Plaintiff. He too has been very negligent in the way he has placed before the Court laws which have been amended. That is misleading the court. Ms Mobiha by not researching and coming up with an opposing view on the matter has simply ignored her duties as Counsel to the Court. Both Counsel have acted negligently in the way in pursing this case. The Court would have decided wrong in law current if it had not verified, checked out the status of the law current. 

16.	The Actions of both Counsel are tantamount to Contempt of Court, because both misled the Court, Counsel for the Plaintiff for submitting Constitutional provisions and Legislation, Act of Parliament that have all being amended. Counsel for the State Ms Mobiha for not assisting the Court, but simply taking no position on the matter for or against. That is professional negligence, failure in the duty to the Court. Both are young lawyers who are starting out in their careers both in Government Institutions. This experience will turn a new leaf for both lawyers. It will not be repeated ever again before this Court. It is a very serious action that was on verge of both being charged now with Contempt of Court but for the fact that both are young lawyers. And for that reason, no conviction will be made against each. Both will be cautioned with record of that fact for both or any other not to act similar, because this is warning enough to secure the strong arm of the law upon. 

17.	The formal orders of the Court are:

(i)	Judicial Review is not made out and is refused.
(ii)	Costs will follow the event forthwith on a party to party basis if not agreed to be taxed.

Orders Accordingly.
__________________________________________________________________
Public Employees Association PNG: Lawyer for the Plaintiff/Applicant	
Office of the Solicitor General: Lawyer for the Defendants