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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS 1016 OF 2005
BETWEEN:
JOHN KAWI
-Plaintiff-
AND:
JERRY TETEGA, TAU O. LIU AND RIGO A. LUA
comprising the Public Service Commission
-First Defendants-
AND:
PUBLIC SERVICE COMMISSION
-Second Defendant-
AND:
THE STATE
-Third Defendant-
AND:
FIRST INTERVENOR - FRED TOMO
AND:
SECOND INTERVENOR - THE HON. SINAI BROWN,
MINISTER FOR PUBLIC SERVICE
Waigani: Injia, DCJ
2006: May 26
JUDICIAL REVIEW - Ministerial action - Requiring Public Services Commission to review its recommendation on Short-Listed applicants for position of Attorney-General - Whether Minister acted ultra vires - Public Services Management Act 1995, ss.25A, ss.31A(1)(d); Constitution, ss.191(1)(a), s.191(2), s.192, s.193, Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation, s.2(2);Public Services (Management)(Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003, s.1.
Cases cited in the judgment:
Kekedo v Burns Philp [1988-89] PNGLR 122
Counsel:
B. Nouairi, for the Plaintiff
D. Steven, for the First Respondent
P. Kingal, for the Third Respondent
D. Korowa, for the First Intervenor, Mr. Fred Tomo
R. Habuka, for the Second Intervenor, Minister for Public Service, Mr. Sinai Brown, MP
26 May, 2006
1. INJIA, DCJ: This is an Application for judicial review made under Order 16 of the National Court Rules. The decision sought to be reviewed is that of the First and Second Respondents ("PSC") to exclude him on two recommendations purportedly made to the National Executive Council (NEC), of candidates for the position of Attorney-General, under s.31A(1)(d) of the Public Service Management Act 1995("PSM Act").
2. The evidence before me consists of affidavits as follows:
Exhibit "A" (Plaintiff): Affidavit of Plaintiff sworn and filed on 8 November 2005.
Exhibit "B" (Plaintiff): Supplementary affidavit of Plaintiff sworn and filed on 21 December 2005.
Exhibit "C" (First & Second Defendants): Affidavit of Mr. Jerry Tetega sworn and filed on 3 January 2005.
Exhibit "D": (Second Intervenor): Affidavit of The Honourable Sinai Brown MP sworn on 29 December 2005 and filed on 30 December 2005.
Exhibit "E"(Second Intervenor): Affidavit of The Honourable Sinai Brown MP sworn on 23 November 2005 and filed on 5 December 2005.
Exhibit "F" (First Intervenor): Affidavit of Mr. Fred Tomo sworn on 6 January 2006 and filed on 23 January 2006.
Exhibit "G" (Third Respondent): Affidavit of Ms Margaret Elias sworn and filed on 14 December 2005; and
Exhibit "H" (Third Respondent): Affidavit of Ms Winnie Kiap sworn on 24 February 2006.
3. Counsel representing the parties made extensive submissions, both written and oral. I have considered the evidence and submissions.
4. The brief undisputed facts relevant to the issues to be decided are as follows. On 8 January 2005, the position of the Attorney-General for the Department of Justice became vacant when the former Attorney-General Mr. Francis Damem’s term expired. On 3 January 2005 the expected vacancy was advertised in the National Gazette inviting applications from interested persons. A total of twelve (12) applicants applied. Pursuant to s.31A(1)(b) and (c) of PSM Act, the Central Agencies and Co-ordination Committee (CACC) of the Department of Personnel Management (DPM), conducted a merit-based assessment of all the applicants and compiled a report. In that report, it short-listed five (5) candidates for the position. On 23 March 2005, CACC submitted the report to the Public Service Commission (PSC) for its consideration. The five (5) candidates are:
1. John Kawi
2. Francis Damem
3. Fred Tomo
4. Josepha Kanawi
5. Zacchary Gelu
5. There is no dispute on the CACC’s conduct of the merit-based assessment and short-list.
6. Upon receipt of the report from CACC, PSC conducted its own merit-based assessment of the candidates and recommended three (3) candidates as required by s.31A(1)(d) of the PSM Act.
7. On 6 April 2005, the PSC submitted its recommendation to the Minister for Public Service ("the Minister"), "for consideration by the National Executive Council" (NEC). For easy reference, I refer to this recommendation as the first short-list. The three (3) applicants short-listed, in the order of preference, were:
1. Fred Tomo
2. Francis Damem
3. Zachery Gelu
8. There is a dispute between the parties as to whether PSC conducted a proper or valid merit-based assessment of the five (5) applicants submitted by the CACC and arrived at a valid short-list.
9. Upon receipt of the PSC recommendation, on 7 April 2005, the Minister wrote to the Ombudsman Commission seeking its views on the First short-list.
10. Upon receiving the Ombudsman Commission’s report, on 12 April 2005, the Minister wrote to PSC expressing his dissatisfaction of the First shortlist and accusing PSC of inter alia, bias and failing to carry out a merit-based assessment of the applicants short-listed by the CACC. The Minister then threatened to refer the PSC Commissioners to the Ombudsman Commission for possible breach of the Leadership Code if the PSC did not rectify the first short-list to be in line with the CACC recommendation.
11. On 18 April the Ombudsman Commission wrote to the Minister advising of its position.
12. On 26 April 2005, the Minister wrote to the PSC advising of the Ombudsman Commission’s position and repeating his "earlier call for you and your Commission to review your short-list to be in line with DPM and CACC recommendations and forward it to my office for consideration by NEC" and looked forward to "receiving the revised short-list of candidates soon".
13. Subsequent to the first short list PSC received copies of two (2) letters from members of the public. The first letter from Mr. John Konumb dated 22 June 2005 who complained of Mr. Kawi’s conduct. The second letter was from an anonymous person dated 6 April 2005, which was unsigned, complaining of Mr. Kawi’s conduct. It is not clear from the evidence if the first letter was considered by the PSC when it compiled the Second Short-list because it was received by PSC on 1 July 2003 as the receipt stamp on the two (2) letters indicate. It is clear the letter from anonymous person was before the PSC when it compiled the Second Short-list. It appears that these two (2) letters were before the PSC at some point when it was asked by the Minister to reconsider the two (2) short-lists.
14. Consequently, PSC reviewed its First short-list. On 10 May 2005, PSC submitted its revised recommendation to the Minister. For easy reference, I will call this recommendation the second short-list. This time, the applicants short-listed in the order of preference were:
1. Fred Tomo
2. Samson Endehipa
3. Josepha Kanawi
15. The second person, Mr. Samson Endehipa though an applicant who responded to the advertisement, was not one of the five (5) candidates short-listed by CACC.
16. Upon receipt of the second short-list, on 10 June 2005, the Minister wrote to PSC disputing the second short-list and suggesting a third (3rd) short-list, for reasons given. The third short-list was to be comprised of, in the order of preference:
1. John Kawi
2. Fred Tomo
3. Josepha Kanawi
17. On 21 July 2005, PSC wrote to the Minister rejecting the proposed third short-list and maintained its second short-list, giving reasons.
18. Consequently, the Plaintiff filed these proceedings seeking orders quashing the PSC decision on the two (2) short-lists and to some extent its refusal to compile a third short-list consistent with the Minister’s suggestion. The Plaintiffs ultimate case in this application is consistent with the position taken by the Minister the combined effect of which is that, should the Court quash the first and second short-lists by PSC, the Court in the exercise of its discretion should recommend the third short-list to NEC. The PSC’s position is that the Court should dismiss the application and allow the matter to take its ordinary course. Alternatively, PSC prefers the Second Short-list. Mr. Tomo’s ultimate position is that the first short-list is the valid one that should go before the NEC. The State’s position is neutral. It will go by any decision that this Court makes.
19. There are many procedural and legal issues raised in the submissions but I consider the following main legal issues to be important for purposes of determining the application.
1. First Short-list:
1.1 Whether the Commission failed to conduct a merit-based assessment of each of the five (5) applicants recommended by CACC in breach of procedures prescribed by s.25 and s.31A(1)(d)(i) of the PSM Act; s.2(2) of the Public Services (Management) (Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 ("Regulation No. 5 of 2003") and S.1 of Public Services (Management)(Minimum Person Specification and Competence Requirements for Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003 (Regulation No. 6 of 2003).
1.2 Whether the Commission failed to conduct panel interviews of the five (5) applicants submitted by CACC and thereby contravened s.2(3) of Regulation No. 5 of 2003 and consequently denied natural justice to the applicants.
2. The Second Short-list:
2.1 Same issues as No. 1.1 above.
2.2 Same issue as No. 1.2 above.
2.3 Whether the Commission acted ultra vires or took into account irrelevant considerations in considering the two (2) letters from members of the public in compiling the Second Short-list.
3. Issues common to First Short-list and Second Short-list.
3.1 Whether the Commission had any power to review the first short-list submitted to the NEC under s.31A(1)(d) of the PSM Act through the Minister’s office under s.2(4) of the Reg. No. 5 of 2003 and replace it with another short-list(s).
3.2 Whether the Minister had any power to request or require PSC to re-consider and review its First short-list submitted to him for presentation to NEC under s.2(4) of Reg. No.5 of 2003.
4. Other issues.
If the application for judicial review is granted, whether the Court in the exercise of discretion, should:
(a) refuse to quash the First and Second Short-lists and decline to interfere in the administrative process and allow the normal procedure to be concluded; or
(b) quash the First Short-list, or the Second Short-list or both.
(c) in the event of (b), devise a third short-list for submission to NEC, comprising of three (3) applicants, in the order of preference:
1. John Kawi
2. Fred Tomo
3. Josepha Kanawi
(d) Whether damages should be awarded.
20. In order to decide these issues, it is necessary to set out the provisions of the Constitution, the PSM Act and the Regulations which are relevant to the above issues.
Section 191(1)(a) of the Constitution states:
"(1)(a) The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for -
(a) the review of personnel matters connected with the National Public Service."
Section 191(2) of the Constitution states:
"The Public Services Commission has such other functions as may be prescribed by or under a Constitutional law or an Act of the Parliament."
Section 192 of the Constitution states:
"The Public Service Commission is not subject to direction or control when carrying out its functions under s.191(1)(a)(functions of the Commission)."
Section 193 of the Constitution states:
"193. APPOINTMENTS TO CERTAIN OFFICES
"(1) This section applies to and in respect of the following offices and positions:-
(a) all offices in the National Public Service the occupants of which are directly responsible to the National Executive Council or to a Minister; and ....
(h) such other offices and positions as are prescribed by an Act of the Parliament for the purpose; other than the offices of the members of the Public Service Commission.
"(1A) All substantive appointments to offices to which Subsection (1)(a), (g) and (h) apply shall be made by the Head of State, acting with, and in accordance with the advice of the National Executive Council from a list of persons recommended by the Public Services Commission following procedures prescribed by or under an Act of the Parliament....(my emphasis)
Section 25A of the PSM Act states:
"Section 25A - Merit based appointment process (1)
Regulations may prescribe a merit based appointment process for the filling of a vacancy under section 25 which;
(a) shall involve a recommendation for the Public Service Commission to be made solely on the basis of an assessment of a candidates suitability compared to the minimum person specification as advertised for the vacancy; and
(b) shall be based on the following administrative processes.
(i) the advertisement of the vacancy in an office in the prescribed format, together with the minimum person specification for applicants to the positions;
(ii) the assessment of each applicant’s curriculum vitae, submitted in a prescribed minimum person specification for the position;
(iii) a ranked ordered assessment of all applicants for the advertised position in terms of their relative competency to perform the prescribed duties;
(iv) the merit based assessment described in this section shall be the primary consideration of the Public Service Commission in making a recommendation to the National Executive Council; and
(v) all other considerations not related to the processes described in this section shall have no bearing in the recommendation of the Public Services Commission and of the National Executive Council in making a final decision on an appointment." (my emphasis)
Section 31A (1) of the PSM Act states:
"31A - Procedures relating to substantive appointments of Departmental Heads.
(1) The procedures relating to the substantive appointments of Departmental Heads referred to in section 193(1A) (appointments to certain offices) of the Constitution are as follows:-
(a) where an office of Departmental Head becomes vacant or is likely to become vacant, the Departmental Head of the Department of Personal Management shall, subject to Subsections (2) and (3) -
(i) declare that a vacancy in the office of Departmental Head 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 of the vacancy; and
(iv) advertise for applications for the office-
(A) on at least two occasions in a newspaper circulated nationally; and
(B) in such other manner as it considers appropriate;
(b) after consideration and assessment of the applicants and consultation with the Central Agencies and 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 National Executive Council;
(e) the National Executive Council may select one of the persons on the list submitted to it under paragraph (d) (ii) for appointments and shall advise the Head of State to make the appropriate substantive appointment as Departmental Head;
(f) where the National Executive Council does not consider any of the persons on the list submitted to it under Paragraph (d)(ii) suitable for appointment-
(i) it shall so advise the Commission and the Departmental head of the Department of Personal Management; and
(ii) the procedure set out in Paragraph (a)(iv), (b), (c), (d) and (e) shall again be followed." (My emphasis)
Section 2 of the Regulation No. 5 of 2003 states:
"2 - Procedure for appointment of Departmental Head
(1) where an office of Departmental Head has been advertised under Section 1-
(a) the Chief Secretary to Government shall provide specific performance criteria and priority Government Programmes to determine key performance indicators and specific competencies on which to base selection criteria; and
(b) the Departmental Head of the Personnel Management shall-
(i) ensure that the Job Description and Person Description for Departmental Head Appointment in relation to the office is prepared in the prescribed format; and
(ii) ensure that appropriate terms and conditions for Departmental Head position have been rectified by the Salaries and Remuneration Commission; and
(iii) procure candidates for appointment through advertisement in a standard format and obtain the candidates curriculum vitae in a standard format; and
(iv) in consultation with the Chief Secretary to Government and the Departmental Head of the Department of Personnel Management, determine a list of not less than five candidates who satisfy the requirements under the Public Service (Management)(Minimum Person Specification and Competency Requirements for Selection and Appointment of Departmental Heads) Regulation 2003; and
(v) submit a list of not less than five names with assessment and recommendation, (together with a list of all other rejected applicants) to the Public Services Commission, pursuant to Section 193 (appointment of certain offices(1)) of the Constitution.
(2) On the receipt of the list and recommendations under subsection (1)(v), the Public Services Commission shall review the candidates and compile a short list of three candidates on merit (utilizing the same appointment criteria from the Public Services (Management) (Minimum Person Specification and Competency Requirements for Selection and Appointment of Department Heads) Regulation 2003, for recommendation to the National Executive Council under Section 193 (appointment to certain offices (2)) of the Constitution.
(3) In carrying out a review under Subsection (2), the Public Services Commission -
(a) may conduct panel interviews of the short listed candidates to further ensure selection on merit; and
(b) shall present its recommendations to the National Executive Council in a standard format.
(4) For the purposes of presenting recommendations of the Public Services Commission to the National Executive Council under Subsection (3)(b), the Minister for Public Service shall present a Cabinet Submission prepared by the Departmental Head of the Department of Personnel Management, containing recommendations from the Public Services Commission in respect to the three (3) preferred candidates.
(5) In considering the recommendations made under Subsection (4), the National Executive Council may-
(a) approve a recommendation; or
(b) reject a recommendation and direct the re-advertisement of the position.
(6) Where the National Executive Council has approved a recommendation under subsection (5)(a)-
(a) the Chairman of the National Executive Council shall advise the Head of State to make the appointment in accordance with the decision of the National Executive Council; and
(b) the Secretary of the National Executive Council shall advise the head of State to make the appointment in accordance with the decision of the National Executive Council; and
(c) the Prime Minister or the Minister for the Public Service shall officially inform the successful candidate prior to gazettal and public announcement of the appointment, and the Departmental Head of the Department of Personnel Management shall inform any incumbent in the office of the decision of the National Executive Council under Subsection 5(a), prior to public announcement of the appointment; and
(d) the Departmental Head of the Department of Personnel Management shall brief the appointee on specific job requirements and terms and conditions, including the draft of the proposed contract of employment; and
(e) the Departmental Head of the Department of Personnel Management shall obtain clearance from the State Solicitor, and, through the Secretary of the National Executive Council, arrange for the contract of employment to be executed by the Head of State."(my emphasis)
Section 1 of the Regulation No. 6 of 2003 states:
"1. Recommendations to be made to the National Executive Council for Appointment of Departmental Heads and Provincial Administrators-
(1) All recommendations made by the Public Services Commission to the National Executive Council under Section 193 (appointment to certain offices) of the Constitution and to Provincial Executive Councils under Section 73 of the Organic Law on Provincial Governments and Local-Level Governments shall be based upon the relative merits of candidates for the positions as assessed by the public services commission against the following criteria:-
(a) the candidate is a serving officer of the National Public Service, or a person fit and qualified to serve as an officer of the National Public Service, as determined by the criteria hereunder;
(b) the candidate satisfied health and fitness requirements for occupancy of a Departmental Head position, as determined by a medical examination prescribed by the Departmental Head of the Department of Health and conducted by a medical officer appointed or approved by that Departmental Head;
(c) the candidate is not less than 35 years of age and not more than 60 years of age;
(d) the candidate possesses as a minimum tertiary qualification, a degree from a recognized university, together with post graduate training relevant to the technical requirements of the position, and a management qualification equivalent to the Public Service Intermediate Management Programme, as amended from time to time;
(e) the candidate is of good character and repute, with no previous criminal record, and as witnessed by suitable references from at least three persons of standing in the community;
(f) the candidate is free of criminal charges or outstanding court cases of a nature likely to seriously injure the professional standing and reputation of the officer, as verified by the Police Commissioner;
(g) the candidate is free of any outstanding investigations or disciplinary proceedings under any laws;
(h) the candidate is not disbarred by virtue of any constitutional or statutory restriction that may apply including any restriction under the Leadership Code or the Defence Act (Chapter 75);
(i) the candidate possesses proven skills, experience and competencies in the following fields:-
(i) man management, with a minimum of three years at a level not lower than Deputy Secretary, or Deputy Managing Director or deemed equivalent level in a private sector organization; and
(ii) policy formulation and development, strategic/corporate planning, and project management; and(iii) financial budgeting and manpower planning; and
(iii) negotiating and public relations skills, with an ability to make convincing public presentations of technical information; and
(iv) general knowledge of the Government political structures and administration systems, the Constitution, the Organic Law on Provincial governments (4) and Local-Level Governments and knowledge of the Public Finances (Management) Act 1995 and the Public Services (Management) Act 1995 in particular; and
(v) a resilient nature able to maintain a firm position on principle and policy and to uphold the Public Service Code of Business Ethics and Conduct;
(j) the candidate possesses other competencies (physical and mental skills and abilities) relevant to the position, as prescribed in a job description approved by the Central Agencies Coordinating Committee from time to time;
(k) the candidate has provided a dissertation in writing as to his or her own suitability for the appointment, and the contribution he intends to make to the government priority programmes if appointed to office;
(l) the candidate has satisfied all of the requirements specified in the National Gazettal Notice pursuant to subsection 1(1) of the Public Services Management)(Selection and Appointment of Departmental Heads and Provincial Administrators) Regulation 2003.
(2) The Minister for Public Service shall obtain from each relevant Minister or, in the case of a Provincial Administrator from each relevant Provincial Governor, advice on the specific accountabilities, qualifications, competencies and experiences which will be required to meet the performance expectations of each of the respective Governments in conformity with this Regulation.
(3) A list of the position specifications and requirements as assessed under subsection (2) shall be recorded in a job description referred to under subsection (1)(j), and authorized by the Departmental Head of the Department of Personnel Management following consultation with the Central Agencies Coordinating Committee and ratification by the National Executive Council from time to time.
(4) In making a recommendation under this Regulation, the Public Services Commission shall also take into account any determinations of the National Executive Councils which have been communicated to the effect that a position shall be filled by a Papua New Guinean citizen and that therefore applicants of other nationalities are not to be recommended for appointment." (my emphasis)
21. Of the four (4) main issues, the third issue raises fundamental threshold issues which go to the core function of PSC and the Minister’s role in the PSC’s recommendation process. For this reason, I will deal with this issue first.
22. My view on reading the relevant provisions of the Constitution, the PSM Act and Regulations set out above is that the law is quite clear as to the procedure and process which takes place in PSC and between PSC and NEC. The Minister’s role in the process which takes place between PSC and NEC is also clear. Therefore, there is no need for the Court to engage in any expansive interpretative exercise. For this reason, I simply re-state what the law is and expound on them.
23. The CACC’s short-list of five (5) applicants is contained in a report which sets out the entire merit-based assessment of all the applicants who responded to the advertisement. This report is submitted to PSC.
24. Upon receiving the CACC report, PSC is required by law to conduct its own merit-based assessment of the five (5) candidates short-listed by CACC. In conducting its assessment, it is required, amongst others, to satisfy itself that the five (5) applicants possess the required job qualifications and experience and are of "good character". In order to assess good character, PSC is required to consult appropriate State authorities such as the Police Commissioner and Ombudsman Commission.
25. PSC is also empowered to conduct panel interviews of the five (5) applicants to determine their suitability for appointment. This is the primary purpose of a panel interview. Whilst a panel interview may also provide an applicant an opportunity to be heard on the assessment, that is not the primary purpose for this provision. The conduct of a panel interview is discretionary depending on the nature of the matters regarding the candidates before it.
26. In conducting the merit-based assessment, PSC is given wide powers to assess the five (5) candidates short-listed by CACC. The intention of s.25(1)(b)(i)&(ii) of the PSM Act in requiring the CACC to submit to PSC a report containing an assessment of all the candidates who responded to the advertisement including the five (5) short-listed candidates is to give the PSC a wide choice in selecting the final three (3) candidates. In the event that the PSC is not satisfied with the suitability of any of the five (5) candidates short-listed by CACC to make up the final list of three (3), PSC is at liberty to conduct its own merit-based assessment of the other candidates not short-listed by CACC, and select from them a suitable candidate to make up the final three (3) candidates to go before the NEC. This intention is made explicit in s.231A(1)(d) of the PSM Act which says the "Commission shall consider the list submitted under paragraph (b)(ii)(A) and all applications received in response to the advertisement under paragraph (a)(iv)." This interpretation is consistent with the CACC short-list which is not required to short-list the candidates in the order of preference as is the case with the PSC’s list submitted to the NEC. The purpose for including the merit-based assessment of the other candidates not short-listed in CACC’s report to PSC, is not simply to assist the PSC assess the merits of the five (5) short-listed candidates by CACC as submitted by Mr. Nouairi. However, in order to give meaning to the five (5) short-listed by CACC, the PSC should exhaust the merit-based assessment of the five (5) short-listed by CACC and only after PSC is unable to come up with final three (3) candidates from those five (5), the PSC is at liberty to assess the other applicants not recommended by CACC in order to select from them a candidate to complete the final three (3) candidates.
27. In my view, provided the merit-based assessment is done in compliance with the procedural requirements prescribed by the PSM Act and the regulations set out above, and the matters considered by the PSC are relevant and come within the list of matters prescribed therein, the manner in which and the weight given to those matters in assessing the merits of the applicants is in the absolute discretion of PSC. The Court should pay greater deference to the assessment and judgment of PSC on these matters in respect of each candidate.
28. In the performance of its functions under these provisions, the Commission is guaranteed independence in the performance of its functions by s.192 of the Constitution. Independence means independence from all forms of influence, direct or indirect and from sources within or external. The only exception to this is the sources of information prescribed by s.1 of Regulation No. 6 of 2003 of which the PSC may in its opinion consider it appropriate to consult. Unless the Minister is given express powers by statute to intervene in the PSC process, he cannot assume a power under some general political or administrative supervisory responsibility he may assume over the PSC.
29. The PSC is given the power to make "a recommendation" in the form of "a list of up to three (3) candidates in the order of preference", and submit "the list" as a recommendation to the NEC under s.31(1)(d) of the PSM Act. The PSC must come up with only one list, which it forwards to the Minister to present to NEC. If PSC comes up with further list(s) after the first list has reached NEC, the credibility or integrity of all those lists including "the list" submitted to NEC is in question. The only rational inference or conclusion is that all the lists are compiled in breach of the procedure and process prescribed by law. A list or lists arrived at through such questionable process cannot be sustained in law. Whatever the reasons for withdrawing, varying, reviewing or amending the first list may be, the PSC has no power to withdraw its first and the only list that should go before NEC, after it is forwarded to the Minister’s office for presentation to NEC. The NEC process commences when the Minister receives the recommendation from the PSC. The PSC has no power to seek to retract, withdraw, review or amend the recommendation once the recommendation has reached the Minister’s office. Mr. Kingal’s submission that the PSC may withdraw the list before it actually reaches NEC is without merit.
30. In the present case, the only responsibility (not power) expressly given to the Minister is found in s.2(4) of Regulation No. 5 of 2003 (and s.2 of Regulation No. 6 of 2003). The Minister’s responsibility in the process which takes place between PSC and NEC is that of a mere facilitator in presenting PSC’s recommendation to NEC. The Minister is given no power or responsibility under these provisions to be involved in the merit-based assessment and selection process conducted by PSC. He is also given no power to "reject" the short-list or to request or demand PSC to re-consider and review the short-list and submit a new list, before the recommendation reaches the NEC. The Minister’s involvement under s.2(4) of Regulation No. 5 of 2003 is to merely present the PSC recommendation under a cabinet submission prepared by the Secretary for DPM. As Mr. Korowa submits, the Minister is merely a facilitator of the PSC submission, to meet formal procedural requirements for bringing the matter as a formal business of NEC. The Minister or the Secretary for DPM who prepares the NEC policy submissions has no power to vary, amend or interfere with the PSC recommendation in any manner, before it reaches NEC. The PSC’s recommendation must be promptly presented to the NEC in the very form it is submitted to the Minister. Once the recommendation reaches NEC, only NEC has the power to reject the recommendation. The only proper forum for the Minister to express his views on the PSC recommendation is in the NEC when the NEC considers the PSC recommendation. Whatever position the Minister takes and the views he expresses on the PSC recommendation in the NEC is his pre-rogative, it is privileged and non-justiciable.
31. Applying the law as expounded above to the present case, I am satisfied that the First and Second Short-lists compiled by PSC were flawed and not done in compliance with the procedural requirements. By succumbing to undue pressure and intervention by the Minister under threat of referral of the Commissioners under the Leadership Code, PSC reviewed its first short-list thereby raising questions on the credibility and integrity of the merit-based assessment it had done earlier. The PSC improperly allowed the Minister to intervene and interfere on its First Short-list. As a result, PSC carried out consultations with the Ombudsman Commission and acquired new information on the short-listed candidates, which it appears PSC did not seek to obtain, in compiling the First short-list, thereby contravening s.1 of Reg. No. 6 of 2003. In conducting a review of the First Short-list, PSC exceeded its powers.
32. After its First list reached the Minister, PSC had no power to re-visit the first list and come up with a second short-list. For the Minister’s part, he acted outside his powers in demanding PSC review the First list. He was required by law to present the First Short-list as it was, to the NEC, with no questions asked. If the Minister had certain views about that short-list, the appropriate forum to express his views was NEC of which he is a member. It was the Minister’s pre-rogative to express the view that he expressed to the PSC but in the correct forum, and that is the NEC. The NEC could or could not have agreed with him. The deliberations of the NEC are privileged and "non-justiciable". The outcome of any such deliberation would have resulted in the selection of a candidate amongst the three (3) persons on the short-list or not selected, in which case the matter would return to the PSC and eventually to the CACC and DPM to re-start the process. It is not lawful for the Minister to seek to influence the PSC or engineer the PSC recommendation of a particular applicant of his choice to be included in the short-list of three (3) candidates.
33. For these reasons, the First Short-list cannot be sustained in law.
34. In relation to the Second Short-list, it is obviously flawed in that it was arrived at under the Minister’s pressure, request or demand. It too cannot be sustained in law.
35. There is no question on the third short-list proposed by the Minister and supported by the Plaintiff in these proceedings. That short-list has not basis in law.
36. The principles on judicial review of administrative action such as the present type are settled. The Court, may by way of an order in the nature of certiorari, quash a decision of a public authority which exceeds its powers or fails to comply with decision-making procedure prescribed by statute or subsidiary legislation: see Kekedo v Burns Philp [1989-90] PNGLR 122. I am satisfied that PSC and the Minister severally or collectively exceeded their powers and/or breached the procedure prescribed by law as set out above, such that the two short-lists should not be allowed to stand.
37. In arriving at this conclusion, I have dealt with the third issue in full and in part, issues No. 1 and 2 and 4. In the circumstances, it is not necessary to address the remaining aspects of issues No. 1, 2 and 4.
38. The end result is that the First and Second Short-list are quashed. In the exercise of my discretion, I refuse to compile a third short-list for the PSC to go before NEC, pressed upon by the plaintiff and the Minister. The whole process must now start afresh, with the PSC conducting a fresh merit-based assessment of the candidates including the five (5) candidates short-listed by the CACC, based on the report submitted by the CACC. In my view, since the CACC recommendation is not in issue, it is safe to start the process therefrom. In view of the urgency of the matter, in terms of the importance of the position of the Attorney-General which needs to be filled sooner, its necessary to prescribe a time-frame within which the PSC should make its’ recommendation, the Minister’s presentation of the recommendation to NEC and the NEC’s decision on the recommendation. I consider a period of up to one month is appropriate to complete that process.
39. On the question of damages, the main basis for this claim is for distress and frustration due to publications by the National newspaper of certain allegations against him and his exclusion from the PSC short-list. He seeks K15,000. He relies on principles in various breaches of employment contract cases.
40. I do not consider the circumstances of this case warrant the award of damages. More appropriately, the plaintiff may institute separate proceedings for defamation. Also, at the time he applied for the position and was considered by PSC, he was not employed in government service, such that his continued employment was affected by the decision of PSC and as a result suffered damages for which he should be compensated with consequential damages such as for distress and frustration. For these reasons, I refuse to award damages.
41. The formal orders of the Court are:
1. The Application is granted.
2. The Public Services Commission’s recommendation made on 6 April 2005 and 30 May 2005 under s.31A(1)(d) of the Public Services Management Act 1995 are quashed.
3. The Public Services Commission compile a fresh recommendation under s.31A(1)(d) of the Public Services Management Act 1995 based on the report of the Central Agencies Co-ordination Committee submitted to it on 23 March 2005, and submit it to the Minister’s Office within fourteen (14) days from today.
4. The Minister submits the said recommendation to the National Executive Council within seven (7) days therefrom.
5. The National Executive Council make a decision on the said recommendation within seven (7) days therefrom
6. The time of entry of this order is abridged forthwith.
42. I will hear parties on costs of the proceedings.
_______________________
Nouairi Lawyers: Lawyer for the Appellant
Stevens Lawyers: Lawyer for the First & Second Respondent
Pius Kingal Lawyers: Lawyer for the Third Respondent
Paraka Lawyers: Lawyer for the Fourth Intervenor
Habuka Lawyers: Lawyer for the Second Intervenor
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URL: http://www.paclii.org/pg/cases/PGNC/2006/79.html