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Re Fijian Teachers Association [2001] FJHC 119; Hbj0006d.2001s (20 July 2001)

IN THE HIGH COURT OF FIJI
(AT SUVA)
REVISIONAL JURISDICTION

JUDICIAL REVIEW NO. 6 OF 2001S

RE: FIJIAN TEACHERS ASSOCIATION & OTHERS
Applicants

R. Naidu for the Applicants
J. Apted for the Council of the Fiji Institute of Technology
L. Daunivalu for the Ministry of Education
Q.B. Bale for Kolinio Rainima Meo

DECISION

This is a contested application for leave to move for judicial review of a decision taken by the Council of the Fiji Institute of Technology (the Council) on about 28 November 2000 to appoint Mr. Kolinio Meo (Meo) as Director of the Fiji Institute of Technology (the FIT).

Mr. Robert Bubendorfer, an expatriate, was the Director of the FIT. In September 2000 he advised the Permanent Secretary for Education, Emi Rabukawaqa (the Permanent Secretary) that he did not wish to renew his contract which was due to expire in January 2001. The Permanent Secretary arranged to have the position advertised in the local press.

On 5 October 00 the FIT Council’s Selection Panel which was chaired by the Permanent Secretary met for the first time to consider the four applications which had been received. All were from locals. According to paragraph 5 of the Report of the Panel (Exhibit B to the Permanent Secretary’s affidavit) only one of the Applicants, Meo was “assessed as suitable”. The Panel however had certain reservations about appointing Meo. These reservations are set out in paragraph 6 of the Report. In view of these reservations it was decided to seek the Minister of Education’s approval to re-advertise overseas.

On 13 October the Panel met the Minister. He indicated that he favoured localising the position.

Following the meeting with the Minister the Panel again met and decided to interview Meo “as he was considered the only suitable local applicant” (paragraph 10).

On 21 October Meo was interviewed. Following the interview the Panel agreed:

1. that Meo met the criteria for appointment; but
2. that he had weaknesses particularly in the areas of financial and corporate management; however
3. these weaknesses could be overcome by training and on the job learning; but
4. that this was strongly felt not to be in the best interests of the FIT; and therefore
5. that the FIT Council should be recommended to seek the Minister’s agreement that the post be re-advertised overseas in order to ensure that the best person available was appointed to the position.
   

On 8 November 00 the Council of the FIT accepted the Panel’s recommendation and on 13 November the Permanent Secretary wrote to the Minister advising him of the Council’s view and seeking his “direction and guidance”.

On 15 November the Minister replied (Exhibit E to the Permanent Secretary’s affidavit). For the reasons set out in the second to tenth paragraphs of his minute he explained why he was:

“adhering to my original contention that the position of Director of FIT be advertised locally and that a local be appointed”.

He regretted:

“that I cannot agree to the recommendation as put forward by Council”.

On 28 November 00 a special meeting of the Council was held to consider the matter. According to page 8 of Exhibit F of the Permanent Secretary’s affidavit a copy of the Minister’s minute was tabled.

The minutes of that meeting record that:

“Council members wish it to be recorded that after expressing differing views and reservations they took into consideration the response made by the Minister for Education with regards to the appointment of a local candidate and would abide by the Ministerial directive with expressed reservations”.

On about 7 December 00 the Permanent Secretary telephoned Meo who was at that time Permanent Secretary for Tourism and Transport. She advised him that his application had been successful and that a formal letter would be following. After speaking to the Permanent Secretary Meo wrote to the Public Service Commission resigning from the Public Service (Exhibit KRM 1 to Meo’s affidavit). On 12 December the written offer of appointment was received and on 24 January 2001 the contract was signed.

These proceedings were commenced on 31 January 2001. A supporting affidavit was filed by Maika Namudu, the General Secretary of the first Applicant, the Fiji Teachers Association.

Paragraph 6 of the affidavit states that the Council was of the view that Meo was an unsuitable candidate for the post.

Paragraph 7 states that the Minister directed the Council to appoint Meo but that “this directive” was not within his powers as Minister.

Paragraph 8 states that the Council failed properly to exercise the powers conferred upon it by Sections 5(a) and 16 (2) of the Fiji Institute of Technology Decree 18/1992 (as amended by the Fiji Institute of Technology (Amendment) Act 4/1998 – the Decree) when “it decided to follow the directive of the Minister of Education”.

Paragraph 10 states that Meo fell “far short of the requirements” for the position.

The Order 53 statement substantially repeats the allegations made by Namudu before seeking principally:

1. an order quashing the appointment of Meo;
2. a declaration that the Council abused its discretion and/or acted unreasonably;
3. a declaration that the Minister acted unlawfully and exceeded his jurisdiction in directing the Council to appoint Meo as Director of the FIT.
   

The Respondents filed notices of objection to the application. They claimed that the Applicants had no sufficient interest, that they had no arguable case, that they had unduly delayed the application, that a grant of relief would be detrimental to good administration and that the application was frivolous, vexatious and “a waste of the Court’s time”.

On 12 February 01 when the matter first came on for hearing I indicated that paragraph 7 of the supporting affidavit was unacceptable as a basis for granting leave since no copy of the ministerial directive had been produced. I gave leave to the Respondents to file affidavits in answer to the affidavit in support and also gave leave to the Applicants to file an affidavit in reply if so advised.

In his affidavit in Answer the Minister categorically denied that he had directed the Council to appoint Meo.

This affidavit was followed by an affidavit by Eli Fong, an electronics lecturer at the FIT who is the President of the FIT Staff Association and who was a member of the Council. Most of his affidavit is argumentative but Mr. Fong contended on page 6 that Meo’s:

“serious shortfalls ..... (made him) unsuitable for appointment to the position in question”.

In paragraph 11 he states his view that:

“It is shameful that we, as members of the Panel did not stick to the strength of our convictions. We allowed ourselves to be influenced by both (the Minister and the Permanent Secretary)”.

In paragraph 15 he expressed his sadness that:

“injustice has been allowed to take place in the appointment procedure in appointing the Director. (Meo) would not have been interviewed had (the Minister) not intervened. His name was eliminated in the short-listing. Two other worthy local applicants were also eliminated in the short-listing. This is where the injustice took place”.

It is a pity that Mr. Fong did not read the Report of the FIT’s Selection Panel already referred to more carefully, especially as he was a member of the Panel and signed its Report. Had he done so he would not have described Meo as unsuitable whereas the report describes him as suitable. He would not have said that Meo was eliminated in the short listing when in fact he was not. He would not have attempted to confuse the issue by referring to “other worthy applicants” when it is clear from the report that only Meo was assessed as suitable, however worthy or unworthy he or the other three applicants might have been.

As is clear from the supporting affidavit of Maika Namudu and the Order 53 statement the two central allegations being advanced by the Applicants were that the Minister unlawfully directed the Council to appoint Meo and that the Council improperly followed that directive. Despite adjourning to allow the Applicants to produce a copy of the directive none has been tabled and it seems that no directive exists.

Apparently recognising this difficulty the Applicants now appear to be complaining not that a directive was issued but that the Minister intervened in the selection process with the result that Meo who was unsuitable for appointment was appointed. It will be convenient to consider the second suggestion first.

In my opinion the Applicants must be held to the facts as set out in the Selection Panel’s report. As I read that Report the plain meaning is that while Meo was suitable the Panel thought they might find an even more suitable appointee by advertising overseas. That the Panel might have been able to find a more suitable person overseas does not however mean that Meo was unsuitable. The claim that the Council appointed someone who was unsuitable cannot stand.

Whether or not the Minister’s intervention was in any way improper depends on consideration of the Decree.

Under Section 5 of the Decree the first function of the Council is:

“(a) to appoint a Director in accordance with sub-section (2) of Section 16 of this Decree”.

Section 16 (2) reads:

“Before the Council appoints any person to the position of Director it shall provide the Minister with a summary of that person’s qualifications and experience and the appointment shall be subject to the approval of the Minister”.

In other words the Minister has a right of veto.

In the face of this provision the Applicant’s claim against the first Respondent is obviously unsustainable since there is no suggestion that the Council erred in selecting Meo as the best local candidate.

I can find nothing in the papers before me to suggest that Meo did anything wrong at all in connection with the application for the vacant position. In my opinion he should never have been joined as a Respondent.

The remaining Respondent, the Minister, was, as I find, merely exercising the power conferred on him by Section 16 (2) of the Decree. As I see it, he had every right to exercise the powers in the way he did. Had there been another local candidate who was obviously much more suitable for appointment than Mr. Meo then an insistence on Meo being appointed might possibly have been open for question. That however was not the case.

Under Section 141 of the Constitution:

“a person or authority exercising power to appoint a person to a public office (other than the office of a Judge) must not appoint a person who is not a citizen (of Fiji) except with the agreement of the Prime Minister”.

Section 194 (1) of the Constitution defines a “public officer” to include:

“an office established by a written law”.

The office of Director of the FIT is established by Section 16 (1) of the Decree.

In these circumstances the Minister’s decision that a local should be appointed was in my opinion entirely reasonable and was in no way improper.

In my opinion this application for leave is simply unarguable. Additionally, I do not think that in the circumstances it was made sufficiently promptly. Meo having held the appointment for 7 months and having signed a contract for 3 years I would consider it detrimental to good administration to grant any of the reliefs sought. Furthermore, the Applicants were unable to show that they had suffered any detriment as a result of the decisions reached.

The application for leave to move for judicial review fails and is dismissed.

M.D. Scott
Judge

20 July 01