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Italeli v Attorney-General [2009] TVHC 3; Civil Case 08 & 09 of 2009 (26 October 2009)

Civil Case no. 8/09

IN THE HIGH COURT OF TUVALU
AT FUNAFUTI

Civil Jurisdiction

Between:

ISAIA ITALELI
Applicant

V

ATTORNEY-GENERAL
First Respondent

PUBLIC SERVICE COMMISSION
Second Respondent

And:

MINISTRY OF EDUCATION
Third Respondent

Case no. 9/09

Between:

SOLOMONA VILIAMU

V

ATTORNEY-GENERAL
First Respondent

PUBLIC SERVICE COMMISSION
Second Respondent

And:

MINISTRY OF EDUCATION
Third Respondent

K Muaror for applicants
D Gorman for respondents

Hearing: 23 October 2006
Judgment: 26 October 2009

JUDGMENT

1. These are applications for judicial review. Both relate to the same incident and counsel have requested they be heard together.

2. Both applicants needed to apply for leave and for leave to apply out of time. The reasons for the delay relate principally to the absence from Tuvalu of any People’s Lawyer for some months and then to difficulties in persuading the new People’s Lawyer to give the case priority over many other delayed cases. Eventually, the applicants decided to instruct a lawyer from Fiji and had to arrange the necessary funds in advance, which was a difficulty they would not have had to face had the People’s Lawyer been able to deal with the case. The decisions to be reviewed were made on 30 September 2006 and 23 February 2007 and are thus seriously out of time. However, Mr Gorman acknowledges the fact that most of the delay was caused by factors out of the applicants’ control and has, very fairly, waived any objection to leave being granted to apply out of time.

3. I have, therefore, granted leave to apply out of time and leave to apply. The papers were ready in the case and so the Court has heard the substantive application at this hearing.

4. Both applicants are teachers by training although Isaia Italeli (Italeli) was, at the time of the matters the subject of this case, working as a school supervisor in the head office of the Education Department having started in that position in 2005, shortly before these events on Nui. Solomona Viliamu (Viliamu) was a teacher at the Primary School on Nui.

5. Prior to 2005, the results at the Nui school had been poor to the extent that the Falekaupule was threatening to "banish" all the teachers unless it improved. Then, remarkably, in November 2005, the school not only achieved a pass rate of almost 100% (20 out of 21) but all who passed had very high marks well above the national average. So spectacular was the change, including the improvement over previous marks of the same pupils, that it was suspected the examination papers and/or the answer papers had been leaked to the teachers or the pupils.

6. On 5 April 2006, a Commission of Inquiry was appointed to look into the matter and reported to the Secretary to Government and the Secretary for Education and Sport on 16 June 2006. During its investigation it interviewed a number of people including both applicants. The report was treated as confidential and was not shown to the applicants prior to their dismissal but it named Italeli and Viliamu as the "prime (and only named) suspects".

7. The Conclusion acknowledged that both had denied all allegations against them and continued:

"It appears that this conspiracy was planned and executed by Isaia and his nephew, Solomona, perhaps in an effort to satisfy the great concern expressed at the Nui Falekaupule sometimes before about the poor performance at the Nui primary school with regard to exams to Motufoua in the past ten years or so. Even a threat was made at the said meeting of the Falekaupule to banish teachers from Nui if the situation continued.

It is most likely that Isaia smuggled the 2005 answer papers from Funafuti to Nui either by floppy disk, CD-Rom or a flash disk, have them printed by means of the Fusi computer and handed the papers to Solomona for further action." (The manager of the Fusi on Nui was Italeli’s wife.)

8. On 2 August 2006 the Deputy Secretary to Government, who, the court has been advised, also holds the position of Secretary to the Public Service Commission (PSC), wrote to both applicants. The letters were generally in similar terms. Italeli’s letter stated:

"1. I have to draw your attention that your immediate employer, the Ministry of Education and Sports, has recommended following the findings of the Commission of Inquiry into the alleged leakage of the National Year Eight Examination Paper 2005 to the Primary School on Nui in October/November, 2005.

2. You are implicated as a suspect and as commented above the COI found you guilty in taking that paper to the Primary School of Nui. All the evidences that the COI collected all pointed towards you, as the main culprit in this unethical, and most deplorable act.

3. Prior to submitting this case for the attention of the PSC, [who as you are aware is the sole authority in Tuvalu, who hires and fires any persons into, and from the public service], you are asked please and through natural justice to provide a defence against these allegations, and recommendations for your removal from the public service. PSC Rules s 57 is also relevant.

4. I shall give you, a one week time frame starting from the 3rd August 2006 until the close of office work on Wednesday the 9th August, 2006. I shall require that the representation is to be made in writing and addressed to the Chair of the Public Service Commission, and submitted through this office for eventual laying before the PSC.

5. You should explain in detail defending yourself from allegations that have now been made against you.

6. Failing that, I will assume that you are satisfied with the allegations and recommendations made against you, as well as the final decision of the Public Service Commission when they do decide on your case."

9. Viliamu’s letter was in identical terms except for the second paragraph:

"2. You are implicated in the leakage as an accomplice and the COI found you guilty in associating yourself with the alleged culprit; a staff member of the Education Department, in assisting him to cover up for that unethical and worst act of mistrust which your colleague had done. All the evidence that the COI collected all pointed towards you and your colleague Mr. Italeli."

10. Italeli deposes that, on 7 August 2006, he requested the Director of Education to provide a copy of the COI report but was told he could not see it because it was confidential and not for public information. Viliamu also tried unsuccessfully to obtain a copy from the Education department.

11. Notwithstanding, they both decided to try to present their side of the case and submitted lengthy written submissions on 8th (Italeli) and 9th (Viliamu) August 2006. Neither had been given any specific disciplinary charges, allegations or recommendations or evidence apart from the general comments in the letters of 2 August 2006.

12. On 4 September 2006 each received a letter of dismissal from the Deputy Secretary to Government. In the case of Italeli it read:

"1. Following the report of the Commission of Inquiry that investigated the alleged leaked National Year 8 Exam Papers to the Nui Primary School for the year 2005 and the full recommendation of the Ministry of Education and Sports, it is my unpleasant duty to advise you that the Public Service Commission had decided on the 18th August 2006 to remove you from the public service effective from the 30th September 2006.

2. The PSC took that decision to dismiss you from the service on grounds that you were involved in conveying the exam script to Nui in October 2005 and having it stored and copied onto the desk top computer that was owned by the Tuvalu Co-operative Society branch on Nui. Your spouse was the immediate custodian of that equipment so in all circumstances you have easy access to that desk top based on that fact. There are strong evidence as revealed by the computer experts here on Funafuti to the Commissioners of the Commission of Inquiry pointing at information being stored in that desk top computer, as well as a hard copy of the answer sheet was produced and given to the former Member of Parliament from Nui island, Mr. Tao Tanukale. That is very strong evidence to indicate that there was a foul play within the Education Department set up and you are implicated in this scandalous and unethical behaviour as depicted by a professional such as you. Those actions were really deplorable.

3. The PSC further noted that it does not accept your explanations and clarifications from your side of the issue but accepts the fact that there was indeed a leakage of the paper as evident from the result of the exam that 20 out of 21 students passed. Had it been that these 20 kids were of very high calibre in their junior years at Primary level then PSC will accept that they should also do well at Class 8 or Form 2 in the year 2005."

13. The letter to Viliamu was in slightly different terms but also showed that the decision of the PSC was based on the findings of the COI, that the PSC had found that he was involved in the offence, that it did not accept his explanation and that it had accepted the evidence of a computer expert.

14. The applicants both wrote and warned the Deputy Secretary to Government that they were intending to appeal the decision and each requested that he be able to attend the hearing of the appeal. They were given a copy of the report of the COI and wrote lengthy submissions in early October 2006. They were not notified of the hearing despite, in the case of Italeli, advising the authorities of his movements during that period.

15. On about 24 March 2007, they received letters dated 23 February 2007 dismissing them. In this case both were identical:

"The PSC in its meeting on Friday 18th February 2007, after extended deliberation on your appeal, decided that the explanations and clarifications that you submitted are not acceptable. After studying carefully your appeal plus additional explanations from the ICT department, there is still proof that there was indeed a leakage of the exam papers.

I therefore regret to inform you that your appeal is not successful and that there is no change to the PSC’s decision to dismiss you from the Public Service.

I wish on behalf of the Government to thank you again sincerely for the services that you have rendered to the teaching profession in the past years."

16. The applicants seek review of both the initial decision dismissing them (the first decision) and the dismissal of their appeal (the second decision)

17. Both seek the following remedies:

1. Certiorari against the first and second decisions

2. A declaration that both the first and second decisions are null and void and of no effect

3. A declaration that both decisions that they were guilty of leaking exam papers were null and void and of no effect

4. Damages and/or all unpaid wages and entitlements from the effective date of termination until the date of payment

5. An order that they be reinstated to the previous position in the Ministry of Education without any loss of benefits whatsoever and be appropriately compensated for loss of future income earnings and benefits

6. Costs

18. In summary, the grounds are that both decisions were:

1. In breach of natural justice and procedural fairness

2. In breach of PSC Rules, irregular, irrational and unlawful

3. Procedurally improper

4. Were in breach of section 22 of the Constitution.

19. The respondents oppose all these claims principally on three grounds, that:

1. there was no bias by the PSC

2. the PSC was not bound strictly by its rules; and

3. the requirements of natural justice had been met.

20. I remind myself that it is fundamental that the role of the Court in judicial review is to consider the decision making process and not the merits of the decision. The facts set out above give the background but it is no part of the Court’s function to make any finding on the rights or wrongs of the actual decision that they were guilty of leaking the papers or any other offence beyond a consideration about how it was reached. Counsel for the respondents has, in his oral submissions, referred to the strength of the evidence upon which the decision was made. I must disregard that and only consider the process by which the decision was made. Similarly counsel for the applicants seeks a declaration that the decision that they were guilty of leaking the papers is a nullity (although I note that Mr Muaror did not address it specifically in his oral submissions). That is a possible inference which could be drawn from any finding that the decision was improperly reached but it is not one this Court can make in these proceedings and that declaration (prayer 3 above) is refused at the outset.

21. The grounds are interrelated but I shall try to deal with them separately.

Natural Justice

22. The so-called rules of natural justice may be summarised as the requirement that the proceedings should be conducted on the basis of procedural fairness. Traditionally two principles applied at common law, both summarised in Latin maxims; audi alteram partem – the tribunal must hear the other side; and nemo debet esse judex in propria sua causa – no one shall be a judge in his own cause.

23. In a case of this nature, and in the contention of the applicants, the requirements are that the person who is being accused must be given sufficient information about the charges he faces which includes an opportunity to know the evidence and then (he must know both the allegation and evidence before he answers) to present his side of the case. The tribunal conducting the hearing must then be fair and unbiased.

24. The applicants point out that, in respect of the first decision, they were never told the specific charges they faced and were not given information of the evidence against them before they had to make their written representations. I consider that the letter of 2 August 2006 did state the nature of the allegations they were facing. It also clearly stated that the allegations were based on the evidence of the COI; access to which was denied the applicants before the first decision and which had, according to the letter, resulted in the COI finding them guilty – a statement which is not really borne out in the report any more than there is any mention of the offences of which it was claimed they had been found guilty. That made it impossible for them to make a proper defence and was a clear breach of their right to be heard.

25. The failure to provide an opportunity to answer the allegations was confirmed in the letter of 4 September 2006 which refers to specific aspects of the evidence upon which the report was purported to be based, none of which had been revealed to the applicants previously, and yet clearly formed the basis of the PSC’s decision. This alone is sufficient to nullify the first decision.

26. Subsequently when they appealed they were shown the COI report but the appeal was heard by the same tribunal which had made the first decision. Mr Gorman suggests a tribunal which has reached its decision by the wrong procedure can always correct it by a fresh hearing under the correct procedures and that was the case here. I accept that can be done if the manner of the correction is by a manifestly fresh consideration of the relevant factors but this was not such a case. Clearly the PSC had second thoughts about the propriety of refusing access to the COI report but this was not a case where, realising their mistake, they annulled the first decision and heard the matter afresh by the correct procedures. On the contrary, this was an appeal from their first decision. They certainly allowed the applicants to seek to change the decision but it was decision, subject to that, by which they still stood. That is not a fresh hearing. Although the report was supplied, there is no evidence that they provided any account of the evidence beyond that. It is clear the report also alluded to the evidence of the computer expert but the letter of 23 February 2007 shows that the PSC had since also taken further evidence ("plus additional explanations from the ICT Department") into consideration which was not disclosed to the applicants but which meant, according to the decision, there was "still proof".

27. Despite the disclosure of the report, there was no information about the evidence upon which it had been made. Whilst it did clarify the allegations, it still did not allow the applicants to challenge the evidence upon which the COI based its conclusions. That also is sufficient to nullify the second decision.

28. I am also satisfied that the involvement of the PSC as the decision making body in both decisions was a breach of the nemo debet esse rule but I shall return to that aspect under the next heading.

Breach of the PSC Rules

29. The Public Service Commission Rules (the Rules) were made by the Commission under powers conferred by section 152 of the Constitution which makes the PSC one of the bodies to which Schedule 3 applies. Under that Schedule, section 2 provides that "subject to this Constitution and to any Act of Parliament, [the PSC] may make rules for regulating its procedures and the performance of its functions" and section 6 additionally provides that "subject to any rules made under section 2 of this Schedule, [the PSC] may determine its own procedures."

30. The foreword to the 2000 Rules explains:

"The Rules prescribe the rules and procedures with respect to the appointments, promotions, transfers, termination of appointments and discipline of public officers in the Public Service of Tuvalu. One of the main objectives of the Rules is to ensure a fair and equitable system of personnel administration as well as the maintenance of an efficient Public Service."

31. Part V of the rules deals with Discipline and the rule specifically brought to the applicants’ attention is rule 57, headed "Disciplinary Proceedings Against Permanent Officers".

32. The Court has been referred to those Rules. I do not set them out in extenso but I am satisfied that the letter of 2 August 2006 (albeit from the Deputy Secretary to Government) suggests that sub rules (1) to (7) were generally followed with the exception of sub rule (5).

33. Sub rule (5) requires a statement of the charge to be forwarded to the officer concerned together with the particulars of the allegation upon which the charge is based. The letter of 2 August 2006 spelled out the allegations but did not supply the statement of the charge. The charges under the Rules are the various disciplinary offences or misconduct specified in rule 44. The applicants were never told which, or any, offence with which they were being charged at any stage, even when they were dismissed from the service by the letter of 4 September 2006 or at any point throughout the appeal. It is possible, of course, to speculate which offence or offences may have been involved but rule 57(5) places a duty on the Secretary to Government to forward a statement of the charge and he failed to do so. The effect of the omission was perpetuated when the PSC dismissed the applicants without having told them the charge for which they were being dismissed nor, later, the charge from which the appeal was dismissed.

34. Sub rule (6), that the officer shall be called on to state any exculpatory grounds was dealt with in the 2 August letter. Sub rule (7) provides, as far as is relevant, to this case:

"If ..., in the opinion of the Secretary to Government, the officer fails to explain the conduct in question, the Secretary to Government shall refer the matter to the Commission with appropriate comments and recommendations."

35. The significance of that sub rule is that this is the first time the PSC is involved in any way and sub rule (8) (i) to (viii) prescribes the course it should follow once the matter has been brought to its attention. Whilst the evidence suggests there had been at least substantial compliance with the rules up to this point, the role of the PSC was conducted in almost total disregard of the requirements of its own rules.

36. In summary, the Commission should, in any case of alleged misconduct which may result in dismissal:

1. Appoint a Tribunal of at least three people specified by the PSC, one of whom must be a magistrate or a professional officer with legal qualifications or relevant experience. None must be in the same department as the person charged and the members other than the person with legal qualification must be at or above the rank of the person charged or level 8 whichever is the higher; (8)(i) and(ii).

2. The Tribunal shall, in sufficient time, advise the officer charged of the place and time the Tribunal will investigate the charge and invite the officer or, if necessary, require him to attend before it to present a defence; (8)(iii).

3. If any witnesses are examined, the officer must be given the chance to be present and to question them; (8)(iv).

4. Any documentary evidence used must also be shown to him before it is used; (8)(iv)

5. Both the Secretary to Government and the officer may, with leave of the Tribunal, be represented by another person including, if the officer so wishes, a member of his staff association or a lawyer; (8)(vi)

6. Once the Tribunal has enquired into the matter it must send its report to the PSC together with the charges and the evidence taken together with anything else it considers relevant; (8)(vii)

7. It is only when the PSC has the report that it will consider it and whether or not to punish and the nature of the punishment. It makes its decision solely on the Tribunal’’ report subject to any further investigation it may wish the Tribunal to make; (8)(viii)

37. The Rules do not state whether, or when, the PSC decides guilt but it is reasonable to assume it is after it has considered the Tribunal report and before it decides on the penalty but it is something so fundamental that it should be clarified.

38. Overall, it is a sensible procedure which was clearly drafted to ensure the requirements of natural justice are met but, in this case, the course followed by the PSC totally disregarded it. The PSC established no tribunal and so none of those procedures were followed. It clearly relied entirely on the COI report and further evidence which it presumably requested from the COI and which, in the case of the appeal, it states it received after the first decision was made.

39. Mr Gorman valiantly seeks to justify this failure by suggesting that the tribunal can make its own rules and a failure to do so is not fatal to the decision. He cites the three questions posed by Lord Slynn in Wang v The Commisioner of Inland Revenue [1994] 1 WLR 1286,1295 as recently adopted by the Vanuatu Court of Appeal in Public Service Commission v Nako [2009] VUCA 7. I accept the relevance of those questions in deciding the effect of such failure but I do not think they establish any principle and, in the present case, I am satisfied they do not need to be asked (with the possible exception of the third with which I shall deal later) as the law makes it clear that the Rules were intended to be binding in a case such as this. Any other answer would make nonsense of the aims of the PSC in making the Rules and lead to uncertainty and chaos in the Public Service.

40. Clearly the PSC is empowered by section 2 of Schedule 3 to make its own rules and that equally clearly must allow them to change them. However, once the rules have been made and until they are changed by the proper procedures, the Commission is bound by them. The power to determine its own procedures given by section 6 does not take it any further because it is specifically made subject to the rules made under section 2 which are, in the present case, the PSC Rules 2000.

41. Appeal from the decision of the Commission is covered by rule 70. It provides for the appeal to be heard by the PSC and makes it mandatory for the secretary to the officer’s ministry to be invited to attend but is left to the Commission’s discretion whether to invite the appellant to attend or, presumably, whether to let him attend at all.

42. I am satisfied that, if the PSC is the body which determines guilt or innocence, any appeal from that decision and certainly any appeal against the penalty imposed means that the involvement of the Commission in such an appeal from its own decision is a breach of the nemo debet esse rule and the provisions of rule 70 should be revisited.

43. Mr Gorman points out that there is no evidence of bias by the PSC in the manner in which it conducted the whole matter of the dismissal and the appeal. I accept that but the test is whether a right minded and properly informed member of the public would have a reasonable apprehension of bias. I am satisfied that the present procedure would undoubtedly cause such apprehension.

44. The failure to follow its own procedures was the first step along the path which led, inevitably, to the failures of natural justice. Had the PSC followed the Rules, this judicial review would probably not have started. The PSC did not even attempt to do so and the applicants’ cases must succeed.

Procedural impropriety

45. This has been covered under the previous heading and I do not consider it is necessary to deal with it further.

Section 22 of the Constitution.

46. Section 22 is in Part 2 of the Constitution headed "Bill of Rights". Section 22 is directed at the fundamental right of every citizen to the protection of the law - generally referred to as the fair trial provision. It is directed primarily at criminal charges and the processes associated with them but it is relevant as a guide to the general concept of fairness in the trial process.

47. It starts, in subsection (2), with the frequently legislated and now, almost universally accepted, standard:

"If a person is charged with an offence, unless the charge is withdrawn he shall be given a fair hearing within a reasonable time by an independent and impartial court established by law."

48. The following subsections then enumerate the essential ingredients of that right, particularly in subsection (3). They recognise the requirements of natural justice and procedural fairness and, whilst I accept they support the contentions advanced by the appellants in the present case, I do not think a further consideration of them will add to the decision the Court has already made.

49. Finally Mr Gorman points out correctly that the orders the Court may make in a judicial review case are discretionary and should not be made if they achieve no useful purpose and when delay has allowed substantial changes to have occurred in the meantime.

50. I accept that proposition but I consider these two men are entitled to a public statement that the decision by which they were dismissed from the Public Service was reached by a totally incorrect procedure under which they were dismissed without being told of the case against them and were denied their right to make a proper defence.

51. I order certiorari and direct that the decisions made by the Public Service Commission on 18 August 2006, dismissing them from the Public Service, and on 16 February 2007, rejecting their appeal against the first decision, be removed into this Court and quashed. I do not need, therefore, to make the first declaration sought and have already stated that I decline to make the second declaration.

52. Whilst that means the dismissal was unlawful, it has clearly taken place and it is equally clear that, whatever the reasons for the delay in reaching this Court, it means the applicants cannot be re-instated in the their former positions. I therefore refuse that prayer but consider the proper remedy must lie in damages which answers the third of Lord Slynn’s questions and I shall hear counsel on that aspect of the case.

Dated 26^th day of October 2009

Hon.Gordon Ward
CHIEF JUSTICE