SC930

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO. 4 OF 2008

BETWEEN:

Reference pursuant to Constitution Section 18(2) concerning interpretation and application of s. 193(1A) & (1C) Constitution to Section 31A & 31C of the Public Services (Management) Act and Reservation pursuant to s 15 of the Supreme Court Act (Ch 37)

In re O.S. No. 241 of 2008 (JR)

AND

IN THE MATTER OF AN APPLICATION FOR JUDICIAL REVIEW UNDER ORDER 16 OF THE NATIONAL COURT RULES

ISAAC LUPARI
Plaintiff/Applicant

AND

SIR MICHAEL SOMARE, MP – 
PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Respondent

THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Respondent

Waigani: Salika, Sakora, Kandakasi, Batari, Gabi, JJ.
2008: 27th and 29th August

CONSTITUTIONAL LAW - Constitution of the Independent State of Papua New Guinea – Interpretation and application of – Question relating to – When must be referred to Supreme Court – Relevant tests or factors – When National Court not obliged to refer – Constitution s 18 (2).

PRACTICE & PROCEDURE – Reference to Supreme Court – Question relating to interpretation or application of a constitutional law – When must be referred to Supreme Court – When National Court not obliged to refer – What is "question relating to" – Constitution s 18(2).

PRACTICE & PROCEDURE – Reservation of "any case or any point in a case for the consideration of the Supreme Court – Cannot be referral – When must be reserved – Relevant considerations – Supreme Court must be slow to assuming jurisdiction – National Court must be allow to discharge its duties and responsibilities – Supreme Court Act s 15. 

Cases Cited:
Ereman Ragi v. Joseph Maingu (1994) SC459.
Young Wadau v. PNG Habours Board (1995) SC489.
Luke Benjamin Supro v. Gerea Aopi and Telikom PNG Limited [1997] PNGLR 353.
 John Kombati v. Fua Singin & Ors, (2004) N2691.
 (per Cannings J), Sulaiman v. PNG University of Technology (1987) N610.
John Kopil v. Malcolm Culligan and The Independent State of Papua New Guinea (1995) N1333.
 Albert Kuluah v. The University of Papua New Guinea [1993] PNGLR 494.
Mathew Petrus Himsa & Anor. v. Richard Sikani, & Anor. (2002) N2307.
David S Nelson v. Hon Patrick Pruaitch & Ors.(2004) N2536.
Francis Damem v. Jerry Tetaga & Ors. (2005) N2900.
Lawrence Sausau v. PNG Harbours Board & Anor. (2007) N3255.
David Nelson v. Patrick Pruaitch & Ors (2003) N2440.
Zachary Gelu v. Francis Dame & Anor. (2004) N2762.
Joseph Lemuel Raz v. Paulias Matane & Ors. [1985] PNGLR 329.
Mount Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v. Wapela Akipe & Ors.[1992] PNGLR 60.
Re s 42 of the Constitutionand Jacob Hendrich Prai [1979] PNGLR 42.
In Re Organic Law on National Elections [1982] PNGLR 289.

Counsel:
H. Nii, for the Plaintiff.
E. Andrew, for the Public Service Commission
S. Singin, for First Defendant
L. Kandi, for the Second Defendant.

29 August, 2008

1.	BY THE COURT:	This matter is before us by way of a reference by the learned Deputy and Acting Chief Justice, Sir Salamo Injia. The reference is purportedly under s. 18 (2) of the Constitution and s. 15 of the Supreme Court Act on the following questions:

"1.	Is Consultation with or recommendation of the Public Services Commission (PSC) required in every case of an appointment and/ or revocation of an appointment of a Departmental Head, under Section 193(1A) and (1C) of the Constitution respectively? This reference is made under s 18 of the Constitution.

2.	Does Section 31A of the Public Services (Management) Act which gives effect to s 193 (1C) of the Constitution and s 31C of the Public Services (Management) Act prescribe the only procedure for the appointment and revocation of appointment of the Chief Secretary respectively? This reference is made under s 18 of the Constitution.

3.	If the answer to Question 2 is in the affirmative, should Regulation 1(1) of Public Service (Management) Criteria and Procedure for Suspension and Revocation Appointment of Departmental Heads and Provincial Administrators) Regulation No. 7 of 2003 be read to be ultra vires? This reference is made under s 15 of the Supreme Court Act, to the extent that this issue raises constitutional issues under s 193(1A) and (1C) of the Constitution, a reference under s 18 of the Constitution is also made.

4.	Whether the employment relationship between the Chief Secretary and the State is removed from the Public law domain by operation of Part VI – Division 2 (ss. 26, 27, 28, 29 & 30) of the Public Service (Management) Act and ss. 2, 36, 37, 38 & 39 of the Employment Act. This reference is made under s 15 of the Supreme Court Act, and to the extent that this issue raises constitutional issues under s. 193 (1A) & (1C) of the Constitution, a reference under s 18 of the Constitution is also made."

Preliminary Issue

2.	Before getting into the merits or otherwise of the above questions, a preliminary issue arose. The issue was, do these questions raise any constitutional or a relevant and appropriate point or part of the case before the National Court for the consideration of the Supreme Court within the meaning respectively of s.18 of the Constitution and s. 15 of the Supreme Court Act? There are two parts to this issue and these are:

(a)	Do the referred questions in fact raise an issue or issues of constitutional law interpretation or application within the meaning of s. 18 of the Constitution?

(b)	Do the referred questions state a point of law or case within the meaning of s. 15 of the Supreme Court Act? 

Relevant Background

3.	For a proper understanding of the preliminary issue, we consider it appropriate and necessary to state the back ground to the referral and the preliminary issue. Accordingly, we note that, what has led to the referral is a decision by the National Executive Council made on 24th April 2008, dismissing Mr. Isaac Lupari, as Chief Secretary to the Department of Prime Minister. Before that decision, Mr. Lupari’s employment was under a written contract of employment, which is permitted by the Public Service (Management) Act, enacted by Parliament under s. 193 of the Constitution. Following the decision in question, Mr. Lupari applied for judicial review claiming that, the National Executive Council did not follow the procedure laid down under the Public Service (Management) Act, when it decided to dismiss him, on the basis of which he sought his reinstatement. 

4.	In the National Court and now before us, the Counsel for the Prime Minister and the State argued that, the Public Service (Management) Act, allows for either of two ways in which Mr. Lupari could be appointed or terminated. One is under s. 31C which allows for the involvement of the Public Services Commission before effecting any dismissal of a Departmental Head and the other is under s. 28 which looks to the contract. Following on from there, they argued that, since Mr. Lupari’s employment was under a contact of employment, his remedies are in private law, by reason of which, he could sue for damages for breach of his contract and not judicial review. 

5.	On the other hand, Mr. Lupari argued that, his employment contract was for employment in the Public Service pursuant to the Public Services (Management) Act. As such, his employment contract did not remove his rights as a Public Servant and hence, his right to judicial review remedy following his dismissal. Consequently he argued that, his employment was in the public law domain and as such, he is entitled to seek judicial review, notwithstanding the contract.

6.	In support of their respective arguments, the parties referred to a number of National and Supreme Court decisions. Counsel for the Prime Minister and the State relied on the decisions of the Supreme Court, in the cases of Ereman Ragi v. Joseph Maingu and Young Wadau v. PNG Harbours Board and the National Court decision cases of Luke Benjamin Supro v. Gerea Aopi and Telikom PNG Limited, John Kombati v. Fua Singin & Ors., Sulaiman v. PNG University of Technology, John Kopil v. Malcolm Culligan and The Independent State of Papua New Guinea, Albert Kuluah v. The University of Papua New Guinea and Mathew Petrus Himsa & Anor. v. Richard Sikani, & Anor. 

7.	On Mr. Lupari’s part he relied on the decisions of the National Court in David S Nelson v. Hon Patrick Pruaitch & Ors, Francis Damem v. Jerry Tetaga & Ors., Lawrence Sausau v. PNG Harbours Board & Anor., David Nelson v. Patrick Pruaitch & Ors and Zachary Gelu v. Francis Damem & Anor., in support of his arguments.

8.	The learned Deputy and Acting Chief Justice in deciding to make this reference opined that:

"… the legislative amendments introduced in 2003 to s 193(1) of the Constitution and s 31 of the Public Services (Management) Act and the Regulation No. 7 of 2003 which purported to give effect to those amendments have not been without much controversy both in public administration circles and also in the Courts. …. Any attempt by this Court to pronounce the law and apply it will not settle the law. It will only perpetuate the confusion and uncertainty in the law.

I consider that the law, both constitutional law and statutory law, on the subject of the public law rights of the Departmental Heads and even Senior public servants employed on contract of employment under the Public Service Management (sic), to seek judicial relief through judicial review procedure … needs to be settled by the Supreme Court. This is primarily a point of law but its resolution will require consideration of the meaning of the relevant provisions of the Constitution stated in question (sic) 1 and 2 of the draft reference. I am satisfied that the issues raised in the questions posed by the Solicitor General are not trivial, vexatious, irrelevant or hypothetical only." 

Do the referred questions in fact raise an issue or issues of constitutional law interpretation or application within the meaning of s. 18 of the Constitution?

9.	Bearing the above background in mind, we now turn to a consideration of the issues before us. We start with the question of "do the referred questions in fact raise an issue or issues of constitutional law interpretation or application within the meaning of s. 18 of the Constitution?"

10.	It is helpful in our view to start with the actual wording in s. 18 of the Constitution which reads:

"18.	Original interpretative jurisdiction of the Supreme Court.

(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."

11.	 Section 18 has received interpretation from the Supreme Court. One of the earliest and often cited and leading authorities is the case of Joseph Lemuel Raz v. Paulias Matane & Ors. There, Kapi DCJ (as he then was) said:

"A question of interpretation or application can only arise where there is an issue as to the interpretation or application of a constitutional law. Where there is no such issue or question, there can be no question relating to the interpretation or application of a constitutional law. … 

The question may arise in one of two ways. First, the parties appearing before the Court may disagree or dispute the interpretation or the applicability of a constitutional law. There can be no doubt that when this happens, a question relating to the interpretation or application of a constitutional law arises. Secondly, the parties may be agreed as to the interpretation or applicability of a constitutional law. The question of the proper interpretation or application of a constitutional law in these circumstances still remains the responsibility of the court. The court may adopt the view put forward by the parties or alternatively, it may reject that view and adopt its own view. When the National Court is faced with any of the above circumstances, a question relating to the interpretation or application of a constitutional law arises and it is bound to refer the question for determination by the Supreme Court. It has no jurisdiction to resolve such questions.

Where a question relating to the interpretation or application of a constitutional law has been finally and authoritatively decided by the Supreme Court, it can not be said that such a question can arise again in a future case before the National Court. In other words, when such a question is raised before the National Court, the Court would be bound to adopt the interpretation or applicability of such a provision already decided by the Supreme Court.

What I have said above is subject to the words "[S]ubject to this Constitution ..." under the Constitution, s 18 (1). That is to say, where the Constitution or any constitutional law gives jurisdiction to the National Court to interpret or apply a constitutional law, unless there is also discretion given to refer such matters to the Supreme Court, … the Court [National Court] is bound to interpret and apply such a provision. The only way such a matter may come before the Supreme Court is by way of an appeal, reference under the Supreme Court Act (Ch No 37) or other procedure of judicial review provided for by the law."
(emphasis in bold ours)

12.	This interpretation has been endorsed, approved and applied by subsequent decisions of the Supreme Court, including the 5 member Supreme Court decision in Mount Kare Holdings Pty Ltd and Dibusa Mining Pty Ltd v. Wapula Akipe & Ors.

13.	Our reading and consideration of the cases and the particular wording in s. 18 makes it very clear that, there can be a referral under s. 18 (2) only where:

(a)	There is an issue as to the interpretation or application of a provision of a constitutional law; 

(b)	The question so arising is not trivial, vexatious or irrelevant;

(c)	The Supreme Court has not previously finally and authoritatively interpreted and applied the particular constitutional provision;

(d)	No other provisions of the Constitution or any other constitutional law give the National Court jurisdiction to interpret and apply a constitutional law. 

13.	Having regard to the particular wording in s. 18, we are of the view that all these four factors are important tests and requirements that must be all met before there can be a valid referral under s. 18. Hence not all questions, however framed to sound like a constitutional question is appropriate for a reference. 

14.	There is no dispute in the present case that, questions 1 and 2 are the lead questions in this reference and that questions 3 and 4 follow on from those two questions. Questions 1 and 2 are in these terms:

"1.	Is Consultation with or recommendation of the Public Services Commission (PSC) required in every case of an appointment and/ or revocation of an appointment of a Departmental Head, under Section 193(1A) and (1C) of the Constitution respectively? This reference is made under s 18 of the Constitution.

2.	Does Section 31A of the Public Services (Management) Act which gives effect to s 193 (1C) of the Constitution and s 31C of the Public Services (Management) Act prescribe the only procedure for the appointment and revocation of appointment of the Chief Secretary respectively? This reference is made under s 18 of the Constitution."

15.	During the hearing, Counsel for the Prime Minister and the State had much difficulty trying to demonstrate that "an issue as to the interpretation or application of a constitutional law" has arisen warranting the referral. They argued that, there was a need for an interpretation of the word "following" as used in s. 193 (1C) of the Constitution. They suggested that, the word should be interpreted to mean "any other procedure" for revocation. In the end however, Counsel did not press on that line of argument when it became apparent in the course of exchanges between the bench and bar that, the word ought to be construed within its proper context. 

16.	Counsel for the Prime Minister and the State then turned to an argument based on s. 28 of the Public Service (Management) Act (initially erroneously cited as s. 26 by Counsel) saying, there are two procedures under the Act for the revocation of appointments of Departmental Heads: the first being under s. 31C, and the other under s. 28. Section 31C prescribes the procedure for revocation of appointments of Departmental Heads while s. 28 provides that Departmental Heads "shall be employed under, and shall hold office in accordance with the terms and conditions of, a contract of employment with the State." Their argument before the National Court and this Court is that, since Mr. Lupari was employed under a contract, they revoked his appointment as Chief Secretary under the contract. His remedy if any, they contend, is, therefore, for him to sue for damages for breach of contract which is in the private law domain. Accordingly, the content that he is not entitled to seek judicial review, which is a public law remedy. 

17.	In our considered and respectful opinion, we do not consider the arguments advanced for the Prime Minister and the State concern or even raise an issue or issues of constitutional law interpretation and application, We accept the submissions for Mr. Lupari that, question 1 has been framed to give the appearance that it involves the interpretation of a constitutional law provision when in fact, it is not the case. The question is out of context and irrelevant in the light of the particular wording of s. 193(1C) of the Constitution, and the factual background against which the National Court directed counsel for the Prime Minister and the State to frame the questions.

18.	Section 193(1C) of the Constitution is in the following terms:

"193. Appointments to certain offices.
…
(1C)	The revocation of appointment of persons appointed under Subsection (1A) or (1B) shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive Council given in accordance with a recommendation by the Public Services Commission following procedures prescribed by or under an Act of the Parliament."
(Our underlining)

19.	This provision does not talk about any "consultation" between the Public Services Commission and the National Executive Council. Instead, it talks only about the Public Service Commission making a "recommendation" to the National Executive Council, in accordance with which, the National Executive Council advices the Head of State to revoke an appointment. There is in our view, no uncertainty or ambiguity in the provisions, which would give rise to an issue of its interpretation or application. There is a clear duty imposed on the National Executive Council to obtain a recommendation from the Public Service Commission. The National Court has jurisdiction particularly under ss. 23 and 155(4) of the Constitution to enforce duties imposed by Constitution. The only way in which the matter could come to this Court is by way of an appeal by an aggrieved party as was made clear by the Supreme Court in the Lemuel Raz v. Paulias Matane (supra) case. 

20.	Question 2 concerns the effect of s. 31C of the Public Services (Management) Act. This question concerns an interpretation and application of s. 31C and has nothing to do with the interpretation or application of a constitutional law. This is highlighted by the fact that counsel for the Prime Minister and the State concede that, the Act is the only legislation that gives effect to s. 193 (1C) of the Constitution. Their argument that, there are two procedures for the revocation of the appointment of Mr. Lupari or for that matter, a Departmental Head in terms of s. 28 and 31C of the Act, is a question of interpretation of the only legislation that deals with the appointment of Departmental Heads. That is a question which is within the jurisdiction of the National Court by reason of which it should be dealt with and resolved there. 

21.	 This leads us to questions 3 and 4. Question 3 once again reads:

"3.	If the answer to Question 2 is in the affirmative, should Regulation 1(1) of Public Service (Management) Criteria and Procedure for Suspension and Revocation Appointment of Departmental Heads and Provincial Administrators) Regulation No. 7 of 2003 be read to be ultra vires? This reference is made under s 15 of the Supreme Court Act, to the extend that this issue raises constitutional issues under s 193(1A) and (1C) of the Constitution, a reference under s 18 of the Constitution is also made."

22.	The first thing we note is that, this question is not clear as to what is the Regulation to be read ultra vires against. Is it ultra vires the Act or the Constitution? Secondly, we note that the question raises an issue of an interpretation and validity of a regulation, and not an Act of Parliament against the Constitution. 

23.	Regulations are enacted under their respective enabling Acts of Parliament. Usually, whenever an issue arises as to validity of a regulation, the enquiry starts with its enabling Act to determine if any of the matters covered in the regulation are authorized by its enabling legislation. Surely this does not raise any constitutional issue. There are checks and balances in legislation following the hierarchy of laws under s. 10 of the Constitution. Hence, when a question arises as to the validity of any legislation, the enquiry starts in the order provided for in s. 10, for example, if the validity of a regulation is in question as in this case, it gets checked against its enabling legislation. If applying that process results in a revelation that a regulation is inconsistent or not authorized by an Act of Parliament, it can be struck down to the extent that it is inconsistent or not authorized. That is a matter within the jurisdiction of the National Court. The Supreme Court cannot be drawn into it, except on appeal by an aggrieved party after the National Court has made a decision.

24.	In the present case, if a procedure prescribed in the Regulation enacted under the Public Services (Management) Act is inconsistent with the procedure provided for by the Act or is not authorized by the Act, it would be declared invalid and be struck down to the extent of its inconsistency or lack of authority. That is a matter within the jurisdiction of the National Court except, on appeal by a party aggrieved by a decision of the National Court. Hence, we are firmly of the view that, no issue for the interpretation or application of a constitutional law provision arises here. 

Do the referred questions state a point of law or case within the meaning of s. 15 of the Supreme Court Act?

25.	This leaves us to consider the remaining question, question 4, which question is in these terms:

"4.	Whether the employment relationship between the Chief Secretary and the State is removed from the Public law domain by operation of Part VI – Division 2 (ss. 26, 27, 28, 29 & 30) of the Public Service (Management) Act and ss. 2, 36, 37, 38 & 39 of the Employment Act. This reference is made under s 15 of the Supreme Court Act, and to the extent that this issue raises constitutional issues under s. 193 (1A) & (1C) of the Constitution, a reference under s 18 of the Constitution is also made."

26.	First, we note with respect that, this question is before this Court as a "reference" as opposed to a reservation of a "case or" a "point in a case for consideration of the Supreme Court" under s. 15 of the Supreme Court Act. Section 15 in so far as is relevant reads:

"(1)	A Judge or Judges of the National Court sitting in the exercise of any jurisdiction other than criminal jurisdiction—
(a)	may reserve any case or any point in a case for the consideration of the Supreme Court; or
(b)	may direct any case or point in a case to be argued before the Supreme Court, 
and the Supreme Court may hear and determine any such case or point so reserved or directed to be argued."

27.	 As a matter of formality and proper mode of coming to the Supreme Court under s. 15 of its Act, we observe that, one can only come to this Court by way of a "reservation" and not a reference as in this case. In our view, this question is not properly before us.

28.	 In terms of the issue in question 4, we note that, the issue has arisen in the light of the conflicting National Court decisions we have noted in paragraphs 6 and 7 above. The issue presented can be determined by reference to a determination of the more fundamental question of, can a Departmental Head or a senior public servant who is employed under a contract have it both ways in terms of the benefits under the terms of his contract and the normal public service terms and conditions of employment? The cases, Counsel for the Prime Minister and the State rely upon effectively say that, a Departmental Head cannot have it both ways. If he is employed under a contract of employment, it is to the terms of the contract that he must look to for his remedies and not by way of judicial review. The two Supreme Court decisions in Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra) support the proposition in the case of a public servant employed under a contract that, unless there is express provision for the application and continuation of a public servant’s rights and privileges including, the public service disciplinary process and the right to judicial review of decisions affecting them, they do not apply. There is no conflict in these two decisions of the Supreme Court.

30.	In the case before us, there might well be conflicts in the decisions of the National Court as highlighted in the arguments of the parties before us and in the Court below. But that is no reason to say that, there has been much controversy in relation to the issue of appointment and revocation of Departmental Heads and other senior public servants. Though s. 193(1C) of the Constitution and ss. 28 and 31C of the Public Services (Management) Act, were not under consideration in the Ereman Ragi v. Joseph Maingu (supra) and Young Wadau v. PNG Harbours Board (supra), these decisions state the law as to when an employer-employee relationship is governed by public law and when it is not. Accordingly, we are of the view that, there is no need for s. 15 of the Supreme Court Act to be invoked in the matter before us. 

31.	The Supreme Court should not and cannot readily entertain all purported reservations under s. 15 of the Supreme Court Act, except only in cases where, there is a clear conflict and the National Court is left with no guidance whatsoever and the only option it has is to make a reservation of a "case or any point in a case for the consideration of Supreme Court". 

32.	The National Court must be allowed to discharge its duties and responsibilities under the Constitution and must not be allowed to derogate from or otherwise unnecessarily delay a due discharge of its duties and responsibilities in matters that it properly has jurisdiction. We are not making a new statement but are only reiterating statements to this effect already made by the Supreme Court in previous cases as in Lemuel Raz v. Paulias Matane (supra), Re s 42 of the Constitution and Jacob Hendrich Prai and In Re Organic Law on National Elections. What this necessarily means is that, the Supreme Court should refrain from readily assuming jurisdiction when reservations are purportedly made under s. 15 of the Supreme Court Act unless it is satisfied as to the merits of the reservation.

33.	A failure to observe what we have just said has the danger of unnecessarily delaying proceedings, increasing costs and anxiety for the parties, which could even lead to a lack of confidence in the ability of our judicial system to deliver justice expeditiously. This has to be carefully observed in judicial review matters, which are supposed to be dealt with expeditiously, which is necessary for the purposes of good administration. The need for expeditious hearing and disposal of judicial review matters is evident in the Rules of the Court. 

34.	Under Order 16 of the National Court Rules, a party seeking judicial review can go before a judge and obtain leave for judicial review ex parte all other affected parties and with only 2 days notice to the Secretary for the Department of Attorney General. Then once leave is granted, the substantive review must be heard within 21 days from the date of grant of leave for review. The Rules specifically require applications for judicial reviews to be made promptly and if there is any delay in that, there must be reasonable explanation provided. 

Conclusion

35.	In summary, we find that the questions referred to us do not raise any issue that concerns the interpretation or application of the provisions of s.193(1C) of the Constitution or any other constitutional law provision. We also find that the questions presented in the reference are not complicated but are capable of determination by the National Court and as such, the National Court was not obliged to refer the questions to this Court. In the circumstances, we find the referral incompetent in relation to all of the questions. Accordingly, we remit the matter to the National Court for His Honour, the learned Deputy and Acting Chief Justice to deal with.

Harvey Nii Lawyers: Lawyers for the Plaintiff.
Eremas Andrew: Lawyers for the Public Service Commission.
Sumasi Singin: Lawyer for the First Defendant.
Solicitor General: Lawyers for the Second Defendant.