Unreported National Court Decisions
N1358
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
OS 70 OF 1993
PUBLIC SERVICE COMMISSION
v
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Waigani
Salika J
September 1993
Counsel:
E Andrew for the Plaintiff
P Ame for the Defendant
JUDGMENT
September 1993
SALIKA J:  The Plaintiffs are members of the Public Services Commission which is established under s. 190 of the Constitution.  Apart from other functions and duties the Commission is entitled to be consulted on appointments of Departmental heads under s. 193 (3) of the Constitution.
The Head of State acting in accordance with the advice of the National Executive Council appointed:
1.       Mr Bill Kua as Acting Secretary Department of Youth, Home Affairs and Religion on 15th October 1992.
2.       Mr Joseph Gabut as Secretary of Department of Fisheries and Marine Resources on the 23rd December 1992.
3.       Mr Guao Zurenoc as Acting Secretary Department of Transport on the 23rd of December 1992.
4.       Mr Utula Samana as Secretary for the Department of Agriculture and Livestock on the 14th January 1993.
5.       Mr Toro Aihi as Acting Secretary for Department of civil Aviation on the 19th January 1993.
The Plaintiff are seeking a judicial review of those appointments having been granted leave for review by the Supreme Court.
The plaintiff allege that they were not consulted on the five appointments and they argue that the appointments are invalid.
The facts are not in substantial dispute.  A concession was made by the defendants at the hearing of the application for leave for judicial review that consultation did not take place as required under s. 193 (3) of the Constitution.
The defendants have filed an affidavit through Mr Paul Songo the Secretary of the Department of Personnel Management.
Mr Songo in his affidavit says:
1.       I am the Secretary of the Department of Personnel Management and am responsible for administration of the Public Service (Management) Act (as amended).
2.       One of the functions I perform relates to the appointment of Departmental Heads.  I am directly involved in that the Minister responsible for Public Service entrusts me with the duty to consult the PSC on behalf of the National Executive Council regarding candidates for the position of Departmental Heads and appointments under Section 50 of the Organic Law on Provincial Government.
3.       There is no set procedure specified under the Act nor under the General Orders to how consultation ought to take place with the PSC.  Thus it has become an accepted practice to have the process of consulting as ad hoc and variable according to the time scale in which a decision is to be made.
In practice, consultation between the PSC and my office on behalf of the ENC has been in the form of either verbal, telephonic, facsimile or letter.  That has been accepted practice that has existed over the years.  Since February 1992, when I returned from my overseas mission engagement, telephone conversation with myself and the Chairman of the PSC has been a mode of consultation and has been accepted by both I on behalf of the NEC and the PSC.
4.       I am aware that at the time when the Departmental Heads in question were to be appointed, communication between I in person, and the PSC was nil.  I was directed by the current Minister for Public Service to get in touch with the PSC to facilitate consultation.
5.       To give effect to the Minister’s direction, I instruct my personnel Secretary to contact the office of the Chairman of PSC.  That was in the period of September to December, 1992, when the appointment of such persons were been considered by the National Executive Council.  During that said period neither the PSC Chairman nor any of his members could be contacted for the following reasons.
(a)      The Commission had relocated from Government officers to Tabari Place, Boroko, N.C.D, about that same period.
(b)      Telephone problems due to non-payment of rent.
(c)      The then chairman of the PSC at time worked from his home according to information provided by his personal secretary, because this office was renovated.
(d)      Mr Henry Veratau was the administrator for the then suspended East Sepik Provincial Government.  He was based in Wewak and the only acting commissioner available was Mr Florian Mambu.
6.       These factors made it impracticable to have a consultation between the PSC and I on behalf of the NEC.  The PSC and its members were not available at the time when the NEC wanted consultation to take place, it could have been impossible to advise the NEC to wait for the PSC to round up its members in the circumstances of this case.
7.       It is my judgement that it would have been unwise to attempt to delay the process of Government and the appointment of the Department Heads by Cabinet simply because no response had been received from the PSC at the consultation process, was to take place.  I have good reasons for holding this view, related to the amendments made to the constitution, and the introduction of the Public Service (Management Act).
It is clear from Mr Songo's affidavit that there was no consultation.  Clause 5 of his affidavit suggests there may have been attempts to contact the plaintiffs but there is no evidence that his Secretary actually talked to any of them or left a message to call back.  There is simply no evidence of any communication between the plaintiffs and Mr Songo.  I appreciate the reasons advanced by Mr Songo in Clause 6 and 7 of his affidavit.  However it must be realised that s. 193 (3) directs the National Executive Council to consult the Public Services Commission.  If consultation by telephones was not possible there is no evidence that facsimiles or letters were sent out to the plaintiffs.
Public Service Commission is established under s. 190 of the Constitution of PNG.  S. 191 of the Constitution spells out the responsibilities of the Public Service Commission which are:
(a)      to ensure efficient management and control of the National Public Service.
(b)      to deal with all personnel matters connected with the National Public Service.
(c)      to deal with other matters in relation to other State services, Provincial services and Governmental bodies.
It is also the function of the PSC to keep under continuous review the State Services (other than the Defence Force) provincial services and services of government bodies.
S. 193 (1) says:
“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
(b)      the offices of the members of the Boundaries commission; and
(c)      the office the occupant of which is responsible for the administration of the Government broadcasting service, or, if that responsibility rests with a board or commission, the chairman or president of the board or commission; and
(d)      the offices of the persons (including members of boards or commissions) responsible for the administration of any of the State Services; and
(e)      the office of Commissioner of Police; and
(f)      the office of Commander of the Defence Force; and
(g)      the office of Secretary to the National Executive Council; and
(h)      such other offices and positions as are perceived by an Act of the Parliament for the purpose, other than the offices of the members of the Public Service Commission.”
S. 193 (3) says:
“(3)    All appointments (whether temporary or substantive) to which Subsection (1)(a), (d), (f) and (g) apply and such other offices and positions as are prescribed by an Act of the Parliament for the purpose of this subsection, shall be made by the Head of State, acting with, and in accordance with, the advice of the National Executive council given after consultation with the Public Service Commission.”
It is contended that the appointments made by the Head of State are appointments which come under s. 193 (1) (a) of the Constitution.  There is no argument over that.  It is further contended that before such appointments are made subsection (3) must be complied with.  The plaintiffs argue that subsection (3) is in mandatory terms.  They argue that the appointments shall be made by the Head of State acting with and in accordance with the National Executive Council given after consultation with the Public Service Commission.
They argue that such consultation must be within the terms of s. 255 of the constitution, that is the consultation must be meaningful and allow for a genuine interchange and consideration of views.  In this case there was no communication either by telephone, facsimile or letters between the plaintiffs and the National Executive Council through Mr Songo.  There is no evidence that Mr Songo talked with the plaintiffs in relation to the 5 disputed appointments.  If there was no communication then it follows there was no consultation.  Therefore there was no meaningful and genuine exchange of views in relation to those appointments.
The argument is further strengthened by the advise that is given to the Head of State.
The advice is in the following terms:
“ADVICE TO GOVERNOR GENERAL
Your Excellency,
You are hereby informed that on the (date) the National Executive Council did decide to advise you after consultation with the Public Service Commission to:
1.       ...
2.       Promote and appoint ( name of appointees) to the office of Secretary Department of...............for a period of........years commencing on and from the date of publication of this instrument in the National Gazette under s. 193 (3) of the Constitution and Section 25 of the Public Service (Management) Act.”
The plaintiffs argue that the Governor General was falsely advised that the National Executive Council had consulted with them.
The defendants however argue that because Mr Songo did attempt to consult by telephone and that he could not, they had substantially complied.
I do not think that it can be logically argued that an attempt by telephone to consult and not talk to anybody because the telephone was disconnected due to non payment of rent or because the plaintiffs were moving offices is substantially complying with s. 193 (3).  If no contact was made by telephone there is no consultation.  The Constitution does not say there must be substantial compliance.  In my view if I find that there was no consultation that is the end of the matter.  The matter must go back to the drawing room to be rectified.
If however a letter or facsimile was sent and the plaintiffs did not respond then one could argue that there was consultation in that case.
I find there was no consultation between NEC and the Public Service Commission.
The next question then is what is the effect of such failure to consult.
The Constitution is the Supreme Law  of this land.  I refer to Sections 9, 10 and 11 of the Constitution.
Where the Constitution imposes a duty or obligation it must be carried out.  Here in my view s. 193 (3) imposes a duty on the NEC to consult with the PSC in making appointments under s. 193 (1) (a).
In my view s. 193 (3) is in mandatory terms relating to the appointment of persons to certain offices by the Head of State.  The Head of State must act with any in accordance with the advice of the national Executive council.  The advise given by the National Executive Council to the Head of State in relation to the appointments must be given after consultation with the Public Service Commission.  In my view it is a direction in mandatory terms.
It is not the Courts function to interfere with the functions of the National Executive Council in carrying out their duties.  However the courts as guardians of the law are duty bound to ensure that the letter of the law is adhered to.
I have found that there was no consultation and as there was no consultation I declare that the appointment of:
1.       Mr Bill Kua as Acting Secretary of Department of Youth Home Affairs and Religion.
2.       Mr Joseph Gabut as Secretary of Department of Fisheries and Marine Resources.
3.       Mr Guao Zurenuoc as Acting Secretary for Department of Transport.
4.       Mr Utula Samana as Secretary for Agriculture and Livestock.
5.       Mr Toro Aihi as Acting Secretary for Civil Aviation null and void.
The Plaintiffs also in their originating summons are seeking that this court make a blanket injunctive order against the National Executive Council to restrain it from making future appointments without first consulting them.  I consider it not necessary.  I refuse to make such orders.
Lawyer for Plaintiff: Andrew Eremas
Lawyer for Defendant: Solicitor General