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PUBLIC SERVICE COMMISSION
AND HAIKIU BAIABE
High of Solomon Islands
(FRANK KABUI, J)
Civil Case No. 01899
Hearing: 22nd April 1999
Judgement: 30th April 1999
Counsel: ri for the
Applicant
A. Radclyffe for the 2nd
Respondent
P. Afeau for the First and
Third Respondents
JUDGMENT
/p>
By an Originating Summons filed
n 19th January 1999, the Applicant seeks the determination tion of a number of
questions posed
in paragraphs 1 - 15 of his Summons. He also seeks
consequential orders in paragraph 16. The Applicant later amended his
Summons by filing an Amended Originating Summons on 19th March 1999
expanding the scope of the same paragraphs 1 - 16 of
his first Summons
referred to above. The questions posed for the determination of this court
in the Amended Summons are
as follows: -
1. &nbbsp; &nsp; whether he
re mendatiodations and reasons, if any, for the termination of the Applicants
by way of
premature retirement and redundancy were made in iance
;
2.&nbbsp; wrethe
the Fi st Rest Respondent properly received any case or submission, made in
compliance with law,
requiring its decision for termination of employment of
Permanent Secretaries by way of premature retirements and or redundancies;
3. ; if the answers
quto questions 1 and 2 herein are in the affirmative, whether the First
Respondent made its
decision in accordance with and in compliance with law;
4. & in t in
the al alternaternative, if the answers to questions 1 and 2 herein are in the negative
whether the First
Respondent had jurisdiction to receive and decide on
rminaof ement of the Applicants ants in thin this pais particular case;
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5. if the answer
wer queo question 4 herein is in the affirmative, whether the decision of First
Respondent made
on or about 3 November, 1998 for termination of Permanent
tarie rease, proper and made in complcomplianceiance with with law;
6. &nnbsp;; &nsp; &nsp; in the
rnlternative, ive, if the answer to question 4 is in the negative, whether the
First Respondent�s
decision to terminate Permanent Secretaries made on or
about 3 November, 1998void f no t;>
8. &nbbsp; if the answer
to queo question 7 herein is in the negative, whether the purported termination
of the Applicants
by way of redundancy was ass="rmal" style="text-iext-indentndent: -34: -34.9pt;.9pt; marg margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
9. p;&nbbsp; if the answeansweanswer
to question 8 herein is in the affirmative, whether the action of the First
Respondent,ugh tcreta the Prime Minister, in advertising
vacancy notices for the postsposts of P of Permanermanent Secretaries
in the Public Service
dated 13 November, 1998 (Vacancy Notice 24/98), was void;
10. & if the the answer
to question 9 herein is in the affirmative whether the appointments of the
Second Respondent
and other secretaries to ministries were void;
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11. & whetin , act andt andt and in law, the posts of Secretaries to Ministries to which the Second
Respondent and
other secret wereinted Perm Secretaries
posts;
las class="MsoNormal" style="text-indent: -34.9pt; margin-left: 70.9pt; margin-top: 1; margin-bottom: 1">
12. if the answer
to ques question 11 herein is in the negative, whether the Second Respondent and
other secretaries
can legally perform the statutory functions and duties
vested in Pent Sariesaw;
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13.; in the
alternative, ive, if the answer to question 11 herein is in the affirmative,
whether the appointments
of the Second Respondent and other secretaries to
the posts of Permanent Secretaries were void since the holders of the said
Permanent Secretaries posts were not or could not have been made redundant
in the circumstance;
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14. & whethe t ppointmointmointments of the Second Respondent and other secretaries by the First
Respondent were based
on recomtions sele panerequired b
y law;
15. if the answer
to questiuestion 14 herein is in the negative, whether the said appointments were
void;
: 1">
Paragraph 16 is in these terms,
�subject to the Court�s
determination of the questions herein rain raised, the Applicants seek the
following declarations
and orders: -�
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a) &nbssp;&nnbsp; a declaratiaratiaration
that the Applicants are still Permanent Secretaries;
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b) & a declanatio that that the appointment of the Second Respondent and other secretaries were
void ab initio;
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c) &nbssp; a declaration
that that the Second Respondent and other secretaries have no powers to exercise
statutory
powers and functions vested in of of Pent Saries /span>
d) &nnbsp;;&nspp;nbsp;nbsp; anp; an injunction
to restrain the Second Respondent and other secretaries from performing any
statutory functions vested in the offices of Permanent Secretaries;
/b>
e) ;&nbssp; &nsp; asp; an injunction
estraestraining officers in the Transport Pool in the Ministry of Transport
Works
and Communications from rng ves giv the cants as
part of their heir termsterms of employment as Permanent Secretarietaries;
f) &nbbsp; &nsp; an order that Respondspondents meet the costs of this application; and
i>g) & p;&nssp  sup; such other
o asrs as this Honourable Court deems just and equitable in the
circumstance.
The Applicant has come to this
Court on behalf mself and other former Permanent Secretaries whose
in interests are the
same in this matter. The background to the Applicant�s
case can be stated thus.
The Facts
The Applicant was a public
officer in the Public Servicee 6th December, 1976. He prHe progressed within
the ranks in the
Public Service until he was appointed a Permanent Secretary
on 11th October, 1993. As a result of the National General Elections
in
1997, the Solomon Islands Alliance for Change Government (SIAC) came into
power in August 1997 headed by Prime Minister
Bartholomew Ulufa�alu. One of
the immediate concerns of the SIAC Government was the ailing economy of the
country. This
state of affairs became the commitment of the SIAC Government.
This meant taking drastic measures to put the economy back on
track as soon
as possible. This further meant the formulation of an appropriate policy to
correct this situation. That
policy is now known as the Restructure Reform
Programme. Its implementation was to be immediate for obvious reasons. Task
Forces were set up. The concern of Task Force 1 was privatisation and
finance. The concern of Task Force 2 was Public
Service Reform. The concern
of Task Force 3 was economic planning and finally the concern of Task Force
4 was business
and commerce. The mandate of Task Force 2 was the review of
the Public Service to bring about changes as it was considered
that whilst
the Public Service was costly it was not effective. Task Force 2 completed
its work in June, 1998 and produced
its Report. This Report was produced for
the Policy and Structural Reform Committee (PSRC) chaired by the Prime
Minister.
The Report went to Cabinet on 25th June, 1998 for its
consideration and approval Cabinet approved the recommendations in the
Report and directed that the Prime Minister�s Office (the PMO) implement the
Report as far as it was practicable. The
Report then went to the Public
Service Commission (the PSC) on 14th July, 1998 for information and
consultation purposes.
At its meeting on 17th July, 1998, the PSC considered
and commented upon the Report. It returned again to the PSC on 21st July,
1998. The PSC again met on 22nd and 23rd July 1998 to consider it. On 27th
July, 1998 Mr. Hiele, the Secretary to Cabinet
(the SPM) in the PMO made a
submission to the PSC for the premature retirement of all Permanent
Secretaries including
the Applicant. The next day 28th July, 1998, the SPM
sent letters of notice of recommendation for premature retirement to all
Permanent Secretaries including the Applicant. The Applicant�s response to
the SPM�s letter of 28th July, 1998 was both
lengthy and detailed. It was
dated 26th August, 1998. The submission by the SPM on 27th July 1998 was
subsequently considered
by the PSC on 3rd November, 1998. The PSC then
resolved to terminate all the Permanent Secretaries including the Applicant
under regulation 73 (c) and (d) of the Regulations, 1979 (the Regulations)
by giving them 2 months notice of termination
or 2 months salary in lieu of
notice. By letter dated 9th November, 1998, the SPM again informed all
Permanent Secretaries
including the Applicant of the PSC decision and
formally giving them 2 months notice of termination of their employment in
the Public Service. Also, in that letter, the SPM told them that they would
be entitled to receive redundancy payments
and payment of school fees for a
period of one year etc. The vacant Permanent Secretaries posts were
advertised on 13th
November, 1998 and were filled on 9th December, 1998. By
letter dated 1st December 1998, the Applicant was informed by the
SPM that
his employment be terminated with effect from 9th December, 1998 and his
salary in lieu of notice for the last
25 days be paid accordingly. The
Applicant and 13 others were not reappointed to any post in the Public
Service. The
payment of redundancy money and other benefits were effected as
early as 8th December, 1998. The Applicant�s redundancy payment was
$43,833.73 credited to his
Bank Account on 24th December, 1998. Rent free
accommodation for 3 months plus payment of school fees were also granted.
Representation under Regun
76 of the PSC Regulations
The Applicant�s case seems to
have been rooted in his representation in his rse to the SPM�s letter
of 28th July,
1998. His response as already stated was dated 26th August,
1998 being Exhibit �JWS 4� attached to his affidavit of 19th January,
1999.
As I have said, his response was lengthy and detailed. It was an analysis of
the salient features of the Report
against the background of the relevant
Regulations and the relevant provisions of the Constitution. The Applicant
concluded
in his representation that the reasons advanced as the basis for
the impending premature retirement under regulation 73(c)
of the Regulations
were not reasonable and totally inadequate. If, anything at all, the reasons
advanced so far pointed
more towards the question of inefficiency under Part
VIII of the Regulations than towards the need to facilitate improvements
in
Government organisation under Regulation 73(c) of the Regulations. The
Applicant also ruled out regulation 73(d) (redundancy)
as being relevant to
the case of Permanent Secretaries. He also raised issues regarding the post
of Permanent Secretaries
under section 40 of the Constitution and the
impartiality of the PSC under section 137(4) of the Constitution etc. He
warned that care must be taken in the implementation of the Government�s
wish to restructure the Public Service meaning of
course that proper
procedure under the Regulations and the provisions of the Constitution must
be observed. The embodiment
of that concern is now before this court by way
of the Originating Summons as amended referred to above.
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The Applicant�s Case
The Applis case raises
several issues for determination. First, he alleges that the reasons fons for the
termination of
his employment by the PSC on 3rd November, 1998 were
inadequate to say the least. He says that for premature retirement to
take
place under regulation 73(c) of the Regulations, there must be reasons
necessitating the facilitation of improvements
in Government Organization
such as corporatisation or privatisation of a Government Department to
improve Government
Organization. He cites examples of this such as Solomon
Telekom Company Limited being the result of what used to be the
Telecommunications Division within a Government Ministry and the Solomon
Islands Postal Corporation being the result of
what used to be the Postal
Division of a Government Ministry etc. He says this is not the case at all
here where the
reasons had nothing at all to do with his ability to perform
the duties of a Permanent Secretary. He says no work assessment
report had
been done on him to measure his suitability as to whether or not he should
continue to perform the duties
of a Permanent Secretary. This being the
case, the reasons stated in the Report were inadequate and totally
irrelevant
as proper reasons for premature retirement under regulation 73(c)
of the Regulations. In fact, he says, the case of Permanent
Secretaries
neither falls within the meaning of regulation 73(c) (premature retirement)
nor within the meaning of 73(d)
(redundancy) of the Regulations. Second, he
alleges that the PSC never received any proper submission for it to exercise
its power under section 116 of the Constitution. By this he means the spirit
and intent of regulation 76 of the Regulations
were lacking in the process
of getting his case and that of other Permanent Secretaries to the PSC for
its decision on
3rd November, 1998. As proof of this allegation, he points
out that the letter by the SPM of 28th July, 1998, addressed to
him was not
in accordance with regulation 76 of the Regulations. By this he means the
SPM was not the Secretary to the
Public, the SPS, who was the proper officer
at that time to write such a letter.
Furore, that letter failed
to state the reasons why the Applicant should be prematurely rely retired. Third,
he alleges
that the dis-establishment of the post of Permanent Secretary
under section 40 of the Constitution may well be unconstitutional.
He says
that whilst section 40 of the Constitution remains unamended, there can be
no scope for the appointment of supervising
officers under section 116 of
the Constitution to perform the same or similar duties normally performed by
Permanent
Secretaries. Besides, he says, the post of Permanent Secretary is
permanent whilst a supervising officer can only be at post
for a temporary
period of time. This being the case, he says, he is still a Permanent
Secretary appointed under section
128 of the Constitution. He concludes that
whilst he acknowledges the power of the PSC to terminate employment under
section 116 as read with section 135 of the Constitution, it must in doing
so; observe the procedure laid down under the PSC
Regulations.
Mr Nori, Counsel for the
Applicant, has conveniently summarised the Amended nating Summons into
t three basic questions
for the determination of this court. These questions
by their very nature require this court to declare that: -
a) &nbssp; & sp;& the Applicant and
h hi his likes are still Permanent Secretaries on the ground that the termination
of their employment e PSCunlaw/span
b) &nbbsp;& bsp;aphe ntmoit ment ment of
the Second Respondent and his likes was void ab initio; and
c) ;&nspp; tse SeconSecond
d
Respondent and his likes cannot validly exercise the statutory powers of
Permanent
Secretaries stipulated in the Act of Parliament and elsewhere
n theic Se.
The Evidence
The Report of Task Force 2 was
done in pursuance of the aim of the Government to reduce the cost of the
Public Service
to around $130 million a year. The recommendations of the
Report did achieve this more or less subject of course to its successful
implementation. The projected cost savings were to result from the
restructuring of Ministries, redesignation of the
posts of Permanent
Secretaries, consolidation of Ministries, capping of allowances, freeze on
vacancies and rental savings
etc. In fact, recommendation 6.2 of the Report
suggested that the post of Permanent Secretary be dis-established and a new
post of Secretary to the Ministry be established.
The Report having approved
by Cabinet on 25th June, 1998 was to be implemented by the Prime Minister�s er�s
Office (the
PMO) as far as it was practical. The fact is that the PMO
comprises the Cabinet and the Public Service Division (PSD). The
Head of the
Cabinet Secretariat is the SPM and the Head of the PSD is the Secretary to
the Public Service, the SPS. The
duties of the SPM and the SPS are different
although it is understood that the SPM is the Head of the Public Service. As
a matter of fact, the SPS who was then Mr. Ganate submitted the Report to
the PSC on 14th July, 1998 (Exhibit �GH1�) under
a covering letter dated
that same day. The purpose of that submission was for consultation with the
PSC. Again, the SPS
made a second submission to the PSC under a covering
letter dated 21st July, 1998. That submission was in response to a PSC
decision made on 17th July, 1998. That letter also informed the Secretary of
the PSC that the Prime Minister would like
the PSC to meet on 22nd July,
1998 in an extra - ordinary Meeting to consider and approve the SPS�s
submission. The PSC
met on 22nd and 23rd July, 1998. In its conclusion, the
PSC suggested that the title �Permanent Secretary� be retained but
be down -
graded to SS1. It also suggested that the process of terminating and
recruiting of public officers be restricted
only to posts affected and no
longer required by the Government and that the procedure under regulation 76
be followed.
Lastly, it suggested that an interview panel be appointed to
interview candidates before appointment by the PSC. By letter
dated 24th
July, 1998, the SPS submitted to the Attorney - General for vetting purposes
a draft letter of notice of recommendation
for premature retirement intended
to be sent to all Permanent Secretaries in anticipation of termination of
employment
by the PSC. The Attorney General gave his approval of that draft
letter that same day. By File Minute dated 27th July, 1998,
the SPS
authorised Mr. Tozaka to send the letters of notice of recommendation for
premature retirement to all Permanent
Secretaries.
Also, by File Minute dated 28th
July, 1998, the SPS authorthe SPM to sign the letterstters of notice of
recommendation
for premature retirement except in the case of the SPM where
the SPS himself would sign the letter of notice of recommendation
for
premature retirement. Those letters of notice of recommendation for
premature retirement were sent out accordingly.
Mr Tozaka is a consultant in
the public service recruited to oversee the implementation of the public
service restructure
programme. In the meantime, Mr. Ganate left the PMO and
gone to another Ministry. This was about the first or second week of
August,
1998. Ms Anna Garo then became the acting SPS until her appointment was
revoked by the PSC on 4th September,
1998. From then onwards the SPM was
also the SPS as per PSC Minute 318/98 dated 4th September, 1998. The SPM
then in
his capacity as the SPS made his submission to the PSC by letter
dated 27th October, 1998 for the premature retirement under
regulation 73(c)
of the Regulations of all Permanent Secretaries including the Applicant. The
PSC at its Meeting on 3rd
November, 1998 resolved to terminate the
employment of all Permanent Secretaries including the Applicant under
regulation
73(c) and (d) of the Regulations.
Notice of vacancies caused by
the termination of Permanent Secretaries from Government employment was
advertised on 13th
November, 1998 already referred to above. Interviews for
the new posts of Secretaries to Ministries were conducted between
the 4th to
7th December, 1998. The PSC at its Meeting on 9th December, 1998 then
appointed the new Secretaries to Ministries.
The Applicant did not apply for
the new posts and was therefore not one of them.
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The Law
As I have said, the Applicant
does not dispute the PSC�s powers to terminate employment of public officers
under section
116 as read with section 135 of the Constitution. This is now
well settled law in this jurisdiction. He claims no damages for
breach of
contract. I think the problem here is that Part IX of the Regulations has
all the trappings of some of the
provisions of the Pensions Act (Cap. 107).
The background to this is this. Up until 1976, all public officers who had
served in the Public Service for
10 years or more and were eligible for
pension rights were awarded pension on retirement from the Public Service.
However,
certain changes were made to the Pensions Act to accommodate the
introduction of the Solomon Islands National Provident Fund Act (Cap. 109).
The National Provident Fund scheme was intended to apply to all employees
and employers including the Public
Service. The main message being put to
public officers at that time was that it was more advantageous to join the
National
Provident Fund scheme than to remain and continue under the Pension
Scheme under the Pensions Act. In order to enable public officers to convert
from the pension scheme to the National Provident Fund Scheme, an amendment
was effected to section 7 (now section 9) of the Pensions Act in 1976. Those
who wished to convert from the pension scheme to the National Provident Fund
Scheme were to retire from
the pension scheme and whatever pensions were
awarded to them were to be frozen with payment being made only on satisfying
any of the reasons for retirement under section 7 (now section 8) of the
Pensions Act. They did not retire from the public service but only from the
Pension Scheme. There were also other consequential amendments
to the
Pensions Act. One of them was the definition of what a permanent non-pensionable
office is. The significance of this new definition is that
public officers
holding permanent non-pensionable posts would not be entitled to pension
rights on leaving the public
service. Other public officers who had chosen
to remain under the existing Pension Scheme did so voluntarily. So there
were two categories of public officers in the Public Service. Those who held
permanent pensionable offices and those who
held permanent non-pensionable
offices. There is a third category. Those who joined the Public Service as
public officers
after the conversion exercise in 1977 would have been direct
contributors to the National Provident Fund Scheme. They are also
not to be
regarded as officers holding pensionable offices. The relevance of this
background information is that regulation
73(c) of the Regulations is really
a duplication of section 8(1)(a)(iv) of the Pensions Act. The relevant parts
of section 8 above are in these terms:-
�8(1) No pension, gratuity on
other allowshall be granted under this this Act to any officer except on his
retirement
from the public service in one of the following cases -
(a) if he retires from public
service under the Government of Solomon Islands: -
(i) ...........................
(ii)
...........................
(iii)
...........................
(iv) on compulsory retirement
for the purpose of facilitating improvement in the organization of the
department to which
he belonged, by which greater efficiency or economy may
be effected;
(v) ..........................
(vi) ........................."
However, whilst regulation
73(c) uses lesser number of words it does retain the same idea of early
retirement from the
public service to effect improvement in Government
Organisation. The making of Part IX of the PSC Regulations must have been
intended to apply to pensionable officers in the public service and also
non-pensionable
officers whose frozen pensions were payable only if they
retired from the public service under any of the circumstances specified
in
section 8 of the Pensions Act. It does not really matter in my view, if the
PSC terminates their employment directly under section 8 of the Pensions
Act. Section 116 as read with sections 132 and 135(1) of the Constitution is
clear authority for this. This point was laboured
to some extent by Ward,
CJ. in
Buto & Others v The Attorney General (Civil Case No. 194/90
unreported). In my view, Part IX of the PSC Regulations has the effect
of confusing the relevant provisions of the Pensions Act. It duplicates the
relevant provisions of the Pensions Act with paraphrasing, deletions and
additions. It assumes that the PSC as far as its jurisdiction to terminate
employment
under section 116 as read with section 135 of the Constitution is
concerned, is a tribunal of fact and law in that it has a
discretion to
terminate employment contracts even in the face of the Government�s wish as
the employer to lawfully terminate
employment contracts. It also assumes
that the Pensions Act is not in force. It is a complete tautology to say the
least. For those public officers whose posts are not pensionable under
the
Pensions Act being referred to above as the third category of public
officers, Part IX of the PSC Regulations is totally irrelevant because it
assumes that on being retired from the public service, they would receive
pension under the Pensions Act which is not the case. Chapter B702 of
General Orders makes it plain that such officers may be terminated by the
PSC
by giving them 3 months notice or 3 months salary in lieu of notice.
There must of course be reasons for termination but not
for the purpose of
retirement from the public service suggesting doing so under the Pensions
Act but simply termination of employment per se. Regulation 76 would also
appear to be a reflection of the first proviso to section
12 of the Pensions
Act. The relevant parts of that section are in these terms: -
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�12. It shall be lawful
the Governor General to require an officer to retire tire from service under the
Government of
Solomon Islands -
(a) ...................; or
(b) ...................; or
(c) where such officer is
serving in accordance with the revised conditions of service, at any time
after the officer
attains the age of forty - five years:
Provided that no officer
under the age of fifty-five years shall be retired under the provisions of
paragraph (c) hereof
unless he has been given notice in writing of the
intention to retire him not less than six months before the date upon which
such retirement is to take effect:
.............................................."
However, regulation 76 goes
further and requires that the rs for making a recommendatindation for
retirement must be given
to the officer concerned and that any
representations, if any, must be made within 30 days after which the case
must
be submitted to the PSC for a decision. In my view, even if the PSC
must terminate employment on the ground of retirement from
the public
service under section 8 of the Pensions Act, there must necessarily be
reasons for doing so. Those reasons are stated in section 8 of the Pensions
Act itself. The weight of such reasons must necessarily be a matter of
opinion. No comfort can be attributed to the first proviso
to section 12 of
the Pensions Act for that only applies to officers who had entered the
public service prior to 1968. Although regulation 76 may now be regarded
as
an improvement upon the reasons for retirement from the public service under
section 8 of the Pensions Act, compliance with its requirements does not
really bar the PSC from terminating employment. Once reasons are given the
PSC must act on them. It may query them or ask for further explanation but
apart from that, it must act on them. The reason
is that the Government is
the employer and not the PSC although the PSC must be expected to act
impartially in exercising
its powers of termination of employment (See
Wheeler v The Attorney General [1988/89] SILR 54 at 60). In my
view, so long as the officer concerned is informed of the reason for his
early retirement that would be
enough compliance with section 8 of the
Pensions Act or regulation 73(c) as read with regulation 76 whichever is the
case. As I have said, it does not really matter so long as
the officer
concerned is informed honestly of the reasons for early retirement. In
practice, termination of employment
intended by the Government as the
employer is inevitable no matter how many tonnes of reasons are given by the
officer
concerned to the PSC to do otherwise. This is really the effect of
regulation 77 of the PSC Regulations subject of course to
the powers of the
PSC under the Constitution. The exception of course are cases such as
Wheeler v The Attorney General referred to above where a Minister
who had no power to terminate an employment contract purported to do so.
Michael Konia v Attorney General & Public Service Commission (Civil
Case No. 216/97) may well be another category of exception. There,
Palmer, J. was dealing with a case of promotion of a public officer followed
by what appeared to be a demotion without his knowledge. It was not a case
of termination of contract of service. In
this case, the office of Permanent
Secretary is not a pensionable office within the First or Second Schedule to
the Pensions Act. It is therefore a permanent non-pensionable office. It is
permanent in the sense that under the Pensions Act, the holder of such
office may remain in the public service until he or she attains the age of
50 or 55 under sections
8 and 12 of the Pensions Act. Apart from that, there
is no other security of tenure other than termination of employment must be
by the PSC and being
entitled to receive his or her NPF contributions at the
age of 50 under section 2 of the Solomon Islands National Provident
Act
(Cap.109). As far as I understand the Applicant�s case, this is the correct
position. That is, the Applicant and
other Permanent Secretaries did not
enter into fixed term contracts with the Government. The reason for
termination of
employment were told to Permanent Secretaries. It was no
secret to them. The main reason, amongst other things, for termination
of
Permanent Secretaries and many others as well in the public service was the
need to reduce the cost of the public
service. It is Government policy for a
good reason. In this case, the reason stated in the SPM�s letter of 28th
July,
1998 was the need to facilitate improvement in the public sector. By
that time, all Permanent Secretaries would have understood
what it was and
what it meant. I do not think the PSC would have argued with Government
policy in promoting cost - cutting
measures in the public service. In fact,
the Applicant was fully aware of the content of the Report for he forwarded
a long and detailed analysis of the issues therein to the PSC on 26th
August, 1998. Mr Nori has however said that the letter
of 28th July, 1998
signed by the SPM did not state the reasons why there was the need for the
termination of employment
in the case of the Applicant and other Permanent
Secretaries. That is to say, the Report could not possibly be the sort of
recommendation envisaged in regulation 76 of the Regulations. However, the
fact is that the SPS at that time was a member
of Task Force 2 that produced
the Report. It must therefore be the case that the recommendations therein
must necessarily
be his also. The fact that the letter of 28th July, 1998
was signed by the SPM and not by the SPS does not make much difference
as to
the status and correctness of that letter. It was authorised by the SPS and
on being cross - examined by Mr Nori
on his affidavit of 19th April, 1999,
Mr Ganate confirmed that fact. There is no doubt that it was done with his
personal
knowledge. In my view, the reasons for the early termination of
employment of the Applicant and other Permanent Secretaries
were adequate
and reasonable. What choice did they have if the Government as the employer
was bent on terminating their
employment through the PSC?. The obvious
remedy lies in damages. There is no legal obligation by the Government to
keep
them in employment. A similar case such as this was Buto and
Others -v- The Attorney General referred to above. The facts of that
case are similar to the facts of this case. The only difference is that in
that
case, the PSC had exercised its powers under the provisions of the
Pensions Act. Then it was told to exercise its powers under regulations
73(a) and (c) of the PSC Regulations. In doing so under pressure
from the
Government, it decided to waive the requirements of regulation 76 of the
Regulations. The order of the Court
was that the PSC terminate the
employment of the plaintiffs 30 days from the date of the judgment. It
should be noted
that the Court did not say that because of that procedural
error, the plaintiffs should be reinstated or that they remain Permanent
Secretaries or appointment of new Permanent Secretaries was unlawful and
therefore invalid. Also, the Court accepted
premature retirement �to
facilitate improvements in Government organisation� as proper and adequate
reasons for the termination
of the plaintiff's employment.
Another point taken up by Mr.
ori was the letter of 27th October, 1998 signed by the SPM SPM being the
submission to the
PSC for its decision to terminate employment of the
Applicant and other Permanent Secretaries. The fact is that the SPM signed
that letter in his capacity as SPS having been appointed to that office on
4th September, 1998 as per Minute 318/98.
It cannot be said therefore that
regulation 76 had not been complied with by the SPS. Again Mr. Nori has said
that the
PSC was dictated to by the Cabinet and the Prime Minister himself.
He also referred to the Cabinet Conclusion on 25th June,
1998 which directed
that the Report be implemented by the PMO. It is an undisputed fact that the
PMO comprises the Cabinet
Secretariat headed by the SPM and the Public
Service Division headed by the SPS. I do not think there is any merit in
that argument. The Cabinet is merely a collective body of Ministers whose
decisions must, as normal practice, be implemented
by the appropriate
Ministries etc. The PMO is no exception to this practice. He has also
referred to the affidavit by
the Chairman of the PSC, Mr Tabusasi filed on
30th March 1999 and his answers in cross - examination. The effect of this
evidence is that the Prime Minister through the SPM and SPS had brought
pressure to bear on the PSC to the extent that
the PSC had to rescind its
previous decision on 22nd and 23rd July, 1998 and endorsed the Report as
submitted. Firstly,
the PSC at its Meeting on 22nd and 23rd July, 1998 said
that the title �Permanent Secretary� be retained but the level be down
-
graded to SS 1. Secondly, the procedure under regulation 76 should be
followed and the process of terminating and recruiting
officers should be
restricted only to those officers no longer required by the Government.
Thirdly, there should be an
interview panel to interview applicants. These
points later rescinded at the PSC Meeting on 27th July, 1998 were simply
comments obviously arising from the Applicant�s response on 26th August,
1998. It was obvious that the Government wanted
the PSC to focus its
attention more on the issue of paving the way for the implementation of its
policy than on matters
of Government policy. There was obviously a sense of
urgency and priority. In this respect, I wish to adopt and echo the same
sense of feeling and understanding Ward, C.J. had in Buto & Others v
The Attorney - General referred to above. At pages 10 - 11, His
Lordship said,
<
�What is app is that
the Government was anxious to complete the pthe process and were working to
remove the Permanent
Secretaries from the public service at the same time as
they were discussing the new arrangements.
It is important to
remember they were dealing with some of the most senior officers in the
Public Service. They all held
very responsible posts and had been in the
Public Service for many years. The Government did not suggest that any were
being dismissed nor did they suggest any had not been doing their job
prop Had that beet been the reason a different procedure
would have been
followed. The reason for the retirements was either be they had reached
the required age or to facilitate
improvements in Government organorganisation
and did not criticise the way they had performed their duties previously...
LikewI find no evidence in
this case that the PSC had buckled under pressure to the extentxtent that the
decision it made
on 3rd November, 1998 was not its decision. It had rightly
raised queries but without any firm commitment that those were its
final
stand on the matter before it. Also, the fact that the Interview Panel
appointed by the PSC at its Meeting on 3rd
November, 1998 had for some
unknown reason been unable to conduct interviews as expected is not fatal to
the appointment
of the new Secretaries to Ministries. In cross - examination
by Mr. Nori, the Chairman, Mr. Tabusasi said he went to see the
Prime
Minister and his impression of the Prime Minister�s position was that the
list of candidates submitted for appointment
was in order. His response to
re - examination by the Attorney - General was that he was not aware that
interviews had
in fact been conducted and some of the members of the
interviewing panel were Messrs Mwanesalua, Tatapu and Tagana who in fact
were members of the Panel appointed by the PSC on 4/12/98. I do not think
that the PSC decision in appointing the Second
Respondents and his
colleagues on 9th December, 1998 can be attacked on the basis that that
decision was not that of
the PSC. The need for the PSC appointed Interview
Panel was deliberately waived by the PSC before it made its decision.
The other matter raised by Mr.
Nori is the effect of the PSC Regulations 1998 whice into operation on
2 2nd November,
1998 a day before the PSC terminated the employment of the
Applicant and other Permanent Secretaries. He has argued that the
whole
exercise should have been done afresh under these new Regulations. The
effect of this argument is that everything
done under the PSC Regulations
1979 would have had no legal basis. Whilst this argument may be technically
sound, it
does not remove the fact that the PSC does not derive its
jurisdiction from the PSC Regulations of 1979 or 1998. Its jurisdiction
for
the purpose at hand is derived from section 116 as read with section 135 of
the Constitution. Also, I do not think
any injustice has been caused in this
case for Part IX of the PSC Regulations 1998 is the same as Part IX of the
PSC
Regulations 1979. The only difference would have been some delay caused
by repeating the exercise afresh apart from the practical
effect that it
might have had on all the parties that would have been affected by that
exercise. Mr Nori has further
pointed out that in terms of redundancy
exercise, the Permanent Secretaries should not have been terminated ahead of
persons of lower ranks. This is now a non - issue as there is no evidence of
redundancy in this case. The last matter raised
by Mr Nori is the argument
that the second Respondents and his other colleagues are not Permanent
Secretaries because
they were not appointed by the PSC under section 128 of
the Constitution. Mr Nori has gone on to say that they are merely
supervising officers as the office of a Permanent Secretary has not been
amended by deletion under section 40 of the Constitution.
I agree with Mr
Nori to the extent that the office of a Permanent Secretary still exists in
law under section 40 of the
Constitution. In my view, a supervising officer
under section 40 of the Constitution can only be a temporary measure and
therefore the statutory powers of a Permanent Secretary under any Act of
Parliament or any subsidiary legislation made
there under cannot be
exercised by a supervising. officer. The designation under section 40 as
read with section 128
of the Constitution is by office. It is a long
established post in the Public Service. A supervising officer can be any
suitable public officer by some senior rank in the Public Service appointed
under section 116 of the Constitution. The fact
is that no Permanent
Secretaries have been appointed under section 128 of the Constitution. It is
also a fact that the
Applicant and other Permanent Secretaries were
terminated (though disputed) by the PSC on 3rd November 1998. The act of
termination was simply that the PSC agreed to terminate their employment by
giving notice of termination or salary in lieu
of notice. This being the
case, the posts of Permanent Secretaries must be taken to be vacant unless
proved otherwise.
This is an important point. The PSC can only make
appointment to a public office under section 116 of the Constitution.
Section 144(1) of the Constitution defines �public office� as meaning an
office of emolument in the public service. Obviously,
as a result of
contracts signed by the Second Respondents and his colleagues with the
Government, they must have been
receiving personal emoluments in the public
service and are doing so now. The post they hold as Secretary must
necessarily
be a public office. General Orders do say that an office
included under the personal emoluments sub - head of the Estimates
is an
established office or post. I think it is therefore a foregone conclusion
that the office of Secretary is an established public office in
the public service on the premise that their personal emoluments must
have
been duly budgeted for in the Estimates. They are however not Permanent
Secretaries by office. However, their terms
and conditions of service are
similar to those previously enjoyed by former Permanent Secretaries.
Significantly, their
duties are similar to, if not the same, with the duties
of Permanent Secretaries. Why they were not appointed as Permanent
Secretaries in the first place is a mystery. What is the fear of appointing
them Permanent Secretaries under section
128 of the Constitution? The term
�Permanent Secretary� per se would not in any way increase the cost of
running the
public service. It is just a designation on paper. It is the
persons who are appointed to that office and their terms and conditions
are
a cost to the Government. The rationale for the use of the term �Secretary�
without the prefix �Permanent� is to
be found in paragraph 4.2 of the
Report. It says that the word �Permanent� be dropped to reflect that the
post of Secretary
is to be a contract position so that the contract can be
terminated by the PSC based upon work performance. That justification
assumes that the holders of the post of Permanent Secretary cannot be easily
terminated by the PSC. This is of course
not the case at all. The holders of
the post of Permanent Secretary can be terminated by the PSC on the ground
of misconduct,
inefficiency or for reasons set out in section 8 of the
Pensions Act or for the same reasons set out in Part IX of the PSC
Regulations 1998. In fact, Permanent Secretaries were contracted for a fixed
term in 1990 as demonstrated
by the facts of Buto and Others -v- The
Attorney General already referred to above. This is a precedent in
this country. The position taken in paragraph 4.2 of the Report above is
in
my view a mistake. It must be corrected as soon as possible. In my view, the
quicker the Secretaries are appointed
under section 128 of the Constitution,
the better it is for the Government and the public service. There would seem
to
be no way out of this odd situation. At this moment, it is doubtful that
the Second Respondent and his colleagues can exercise
the statutory powers
vested in a Permanent Secretary appointed under section 40 of the
Constitution.
lass="MsoNoMsoNormal" style="margin-top: 1; margin-bottom: 1">
In exercising mcretion, I
would answer the questions raised for determination in the Amended Summonsmmons
as follows:
-
Question 1, the answer is yes.
Question 2, the answer is yes.
Question 3, the answer is yes.
Question 4 need not be answered
in view of the above answers in the affirmative.
Question 5 is ambiguous but if
it means that if the answers to questions 1 and 2 in Question 4 is in the
affirmative,
then the answer is yes.
Question 6 need not be answered
in view of the answer in the affirmative in Question 5 above.
Question 7 need not be answered
as the question of redundancy is not contested in this case.
Question 8 need not be answered
in view of the answer in Question 7.
Questions 9 and 10 need not be
answered.
Question 11, the answer is no.
Question 12, the answer is no.
Question 13 need not be
answered.
Question 14, the answer is yes.
Question 15 need not be
answered.
In the result, the declarations
ght in paragraph 16(a) and (b) are refused. Although I have have answered
Question 11 in
the negative, it does not necessarily follow that I should
grant the declaration sought in paragraph 16(c) in view of my ruling
that
the Applicant and other Permanent Secretaries have been validly terminated
by the PSC and have ceased to be Permanent
Secretaries. That being the case,
I do not think they have standing to question the validity of duties of the
Second
Respondent and his colleagues performed under their individual
contracts with the Government. They do not possess any legal
rights to be
vindicated by this Court. I refuse that declaration sought in paragraph
16(c).
<
I further refuse the order
soughtaragraph 16(d) in view of my ruling that the Applicant and and other
Permanent Secretaries
are no longer holders of the office of Permanent
Secretary. They obviously do not have standing to question the exercise of
statutory duties of the Second Respondents and his colleagues. The position
therefore is that the Applicant and other
Permanent Secretaries were
lawfully terminated by the PSC and therefore are no longer Permanent
Secretaries whilst the
Second Respondent and his colleagues were lawfully
appointed as Secretaries but they are not Permanent Secretaries by office
appointed under section 128 of Constitution. Obviously, the First and Third
Respondents are now aware of the urgent need
to rectify the appointment of
the Second Respondent and his colleagues as soon as possible under section
128 of the Constitution.
I also refuse the order sought in paragraph 16(e)
as it is no longer necessary to consider it in view of my ruling in
paragraph 16(a) and (b) above.
Parties to meet their own
costs.
Dated this 30th day of April
1999
At the High Court
Honiara
Frank O Kabui
Judge
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