N4809

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) No. 608 OF 2010

BETWEEN:

GEOFFREY R.E. VAKI, MBE, QPM, DPS
Plaintiff

AND:

GARI L. BAKI, OBE, DPS, CSt.J
in his capacity as the Commissioner of Police
First Defendant

AND:

NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:

INDEPENDANT STATE OF PAPUA NEW GUINEA
Third Defendant

Waigani: Kirriwom, J
2012: 04th September & 1st October

JUDICIAL REVIEW - Writ of certiorari – To quash decision of Commissioner of Police – Termination of Deputy Commissioner of Police – Appointment under Contract – Appointment made by NEC- Deputy Commissioner of Police charged with serious disciplinary offences by Commissioner of Police and suspended indefinitely by NEC-Appointment of fixed term for three years lapsed while under suspension - Position advertised and applied for by Plaintiff-Plaintiff not reappointed - Commissioner issued termination notice – Plaintiff commenced proceedings.

JUDICIAL REVIEW – Leave for Judicial Review granted – interim injunctive orders made ex parte – returned date for inter parties hearing lapsed without hearing – Plaintiff ordered to be reinstated with full entitlements to Deputy Commissioner of Police to take effect from date of removal from pay-roll.

JUDICIAL REVIEW – Substantive hearing – grounds for judicial review – commissioner acted ultra vires the Contract and Police Act 1998 – Termination without disposition of pending disciplinary proceedings – Unreasonableness of decision – Judicial review upheld – Plaintiff reinstated to substantive position before the rank of Deputy Commission of Police.

RELIEF – Judicial review granted and decision quashed – interim injunctive relief dissolved (orders 19th November 2009).

Facts

Plaintiff is a very senior police officer holding a substantive rank of Deputy Police Commissioner when he was charged with serious disciplinary offences while he was in the third year of his three year contract with the State. Consequently he was suspended indefinitely by the National Executive Council acting on the advice and recommendation of the Police Commissioner pursuant to the Contract and under the Police Act 1998.

His term of appointment and his written contract of employment lapsed simultaneously on 12 April, 2010. Pursuant to a clause in the Contract, when Contract lapsed, a three months grace period was extended to his term. Following expiry of his term, the position was advertised. The Plaintiff applied. He did not receive any advice on his application and NEC did not renew his appointment.

On 16 August, 2010 Commissioner terminated Plaintiff's employment with the Police Force on the basis that his appointment as Deputy Police Commissioner had lapsed and he was not reappointed. 

Meanwhile his disciplinary proceedings remain incomplete and he can never know what would have been the outcome had it been proceeded with to the end.

Plaintiff contended at trial that the Commissioner had acted outside his powers when he terminated him from the Police Force while his disciplinary action was still pending and as such there was an error in his decision on the face of the record.

It was argued that there was no cause for the Commissioner to terminate his employment other than his appointment as Deputy Police Commissioner had expired but not renewed. There were procedures to follow under the Contract regarding life after expiration of Contract.

On behalf of the First Defendant it was argued that the Plaintiff's term had expired and not renewed by the NEC. It was the prerogative of the NEC to appoint upon recommendation from the Commissioner.

It was also argued that the Plaintiff's employment was under Contract of Employment and private law governed that employment which did not require specific performance except damages if termination was unlawful. In this respect it was argued that judicial review was not the correct procedure.

It was also argued that even if judicial review is the correct procedure, specific performance is not an appropriate relief. Damages is appropriate.

After concluding that this was an appropriate case for judicial review, the issues in the trial were narrowed down to the question of:

i.	Whether the Plaintiff was actually terminated at all?
ii.	If so, was the termination lawful?

Held

1.	Plaintiff was unlawfully terminated while disciplinary proceedings remained to be dealt with and no reasonable explanation given for his termination.

2.	Appointment as Deputy Police Commissioner for a fixed term was transitory only compared with the Plaintiff's right to remain in employ with the Police Force unless proved guilty of a serious misconduct that required dismissal.

3.	Termination by the Commissioner was ultra vires the Contract and the Police Act 1998.

4.	Non-renewal of his term or expiry of his term as Deputy Police Commissioner was not a justification for the Plaintiff's termination from the Force without according him proper process under the Act.

5.	Commissioner's decision is quashed and Plaintiff reinstated to substantive position below the rank of Deputy Commissioner which is that of an Assistant Commissioner (unattached) and be accorded and paid salary and benefits commensurate with that rank until his disciplinary proceedings are dealt with and the outcome conveyed to him.

6.	Commissioner of Police is given 14 days to adjudicate and reach a determination on the Plaintiff's disciplinary charges and the Plaintiff be advised of the outcome of the determination without delay.

7.	Commissioner shall take immediate steps to advertise the position of Deputy Commissioner Operations forthwith.

8.	Commissioner to advise and recommend the outcome of his selection of the applications to the Minister for Police for brief to the National Executive Council for its decision on the position of Deputy Police Commissioner Operations.

9.	National Executive Council shall take immediate steps to appoint Deputy Commissioner for Police Operations upon receipt of advice and recommendation from the Commissioner and advise the applicant in writing before the notice of appointment is gazette in the National Gazette. 

Court considered a senior officer's right of employment in pursuit of his career as opposed to an appointment to a higher position to which he may be elevated or promoted due to his proven record and the right to aspire to reach the pinnacle of his career if he is a middle or top ranked officer below the Commissioner.

Detailed facts and issues are in the judgment.

Cases cited:
Papua New Guinea cases

Alumba v Commissioner of Police [1996] N1438
Ereman Ragi and The State Services and Statutory Authorities Superannuation Fund Board v Joseph Maingu [Public Officers Superannuation Fund Board (POSFB)] [1994] SC459
Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122
Peter Ipu Peipul v Sheehan J, Mr Orim Karapo and Mr Iova Geita (Constituting the Leadership Tribunal), Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2002) N2232
Sulaiman v PNG Unitech [1987] N610
Young Wadau v. PNG Harbours Board [1995] N489

Overseas case

Ridge v Baldwin [1964] AC 40 at 65

Counsel

Mr. Sam Bonner, for the Plaintiff/Applicant
Mr. Tobias Dalid, for the 1st Defendant/Respondent
Ms. Sharon Vate, for the 2nd Defendant/Respondent

DECISION
1st October, 2012

1.	KIRRIWOM, J: This is the application for Judicial Review by Geoffrey R.E. Vaki, MBE, QPM, DPS, leave being granted on 19th November, 2010. Mr. Vaki is seeking judicial review following termination of his employment as the Deputy Commissioner for Police (Operations) when his three year term as the Deputy Commissioner of Police (Operations) expired and was not renewed. 

2.	Instead he received an internal office minute from Deputy Commissioner of Police Kulunga Chief of Administration, now Commissioner Kulunga, dated 18 August, 2010 advising him in these terms: 

'…because your contract has not been renewed when the contract lapsed on 12th April 2010 you will be put off the payroll in the coming pay period. Also note that your grace period of three months expired on 12th July 2010. 

You are also required to return the Police vehicle in your possession to ACP Logistics immediately. 

Thank you for your understanding and God bless. 

T. Kulunga OBE DPS QPM 
Deputy Commissioner of Police 
Chief of Administration'

3.	Message conveyed to the Plaintiff in this minute by Deputy Commissioner of Police Kulunga only reiterated what the Commissioner relayed in his internal minute to Deputy Commissioner Police Administration two days earlier on 16th August, 2010. The full text of that minute reads: 

"SUBJECT – EX DEPUTY COMMISSIONER POLICE OPERATIONS – MR GEOFFREY VAKI

The above named person's contract of employment as Deputy Commissioner Operations expired on 12th April, 2010. The contract was not renewed. 

He was given grace period of three months on full pay as per the term of his contract. This period expired on 12th July 2010. 

He is no longer a member of the Royal PNG Constabulary. He is to be removed from the payroll next pay period. The police issue vehicle he is using is to be returned immediately. Advise when this has been done. 

Gari L Baki OBE DPS CstJ 
Commissioner of Police

16th August, 2010"

4.	The way the parties presented their cases was not all coherent and begging in certainty. While on the one hand it was generally argued that the Plaintiff was never at all terminated, his term of appointment expired and was not renewed by the appointing authority and he had to go. Yet on the other hand one party argued that judicial review was not the appropriate procedure because he was an officer employed on contract therefore his employment was covered by private law, akin to what the Supreme Court held in Ereman Ragi & Ors v Joseph Maingu (1994) SC 459 and followed in Young Wadau v PNG Harbours Board (1995) SC 489. 

5.	Ms Vate for the State raised no jurisdictional issue but argued that specific performance was not an appropriate relief sought by the Plaintiff. She relied on the case of Isaac Lupari v Sir Michael Somare (2008) N3476 where Injia, J listed and considered five relevant principles when reinstatement is sought as relief:

a.	Where the relationship between the employer and employee prior to the dismissal has completely or seriously deteriorated or broken down to such an extent that mutual trust required of each other no longer exists or that their relationship has become noxious to either one of them, mandatory injunction will not be granted to compel either the master or the servant or both to continue a personal relationship.

b.	Damages rather than specific performance or mandatory injunction or reinstatement would be the appropriate remedy for breach of contract for personal service.

c.	Reinstatement or mandatory injunction particularly in a judicial review is an equitable relief and its grant must be consistent with or in furtherance of principles of equity.

d.	Public interest in the good administration of the office of the Chief Secretary must justify the Plaintiff's reinstatement.

e.	The position that the applicant once occupied is available or still vacant at the time of trial to be filled by an acting or substantive appointment is a relevant consideration but it is not an important consideration.

6.	The above principles are equally relevant in this case, if applicable, subject to the peculiar circumstances of this case. But I would like to address the jurisdictional argument at the outset because of the two-pronged process of appointment to the relevant position that the Plaintiff occupied according to its enabling Act ie Police Act 1998 where the Commissioner recommends to the Appointing Authority which is the National Executive Council and that body makes the appointment. 

7.	What we have in this case for simplicity sake is that the Plaintiff's term of three years as Deputy Commissioner expired. The NEC decided not to renew it. No reason was given and the Commissioner's position on this is also not clear. But we do have evidence that following this expiry of the Plaintiff's term as DCP Chief of Operations, the Commissioner advised the Deputy Commissioner, Chief of Administration, as there are two Deputies in the Force's structure, Plaintiff being the other, that the Plaintiff's employment has ended because he was not reappointed to the post and that he be taken off the payroll. 

8.	 At the time the Commissioner, Mr Baki gave this instruction to Mr Kulunga, the only thing he had to base this decision on to remove the Plaintiff from the payroll was the expiry of his term and non-reappointment by the Second Defendant. Apart from that, the only other matter that may have greatly influenced the Commissioner's mind was the pending disciplinary proceeding still sitting in his basket of unfinished business. Until a determination was made, that matter was not available for consideration for purpose of termination of the Plaintiff's employment. Unfortunately, in the absence of any explanation, that is what might have happened.

9.	This misconception was very much obvious when even Mr Kulunga gave evidence in this trial. As far as he was concerned, the Plaintiff was never terminated by the First Respondent, his contract simply expired and he was not reappointed.

10.	Be that as it may, what Mr Kulunga overlooked was that the Plaintiff was a career police officer who rose through the ranks over forty years of splendid service to the Police Force. There was no evidence given of what, if any, consideration was given by the Commissioner of Plaintiff's continued employment after the expiration of his contract. There were extensive provisions in the Contract guaranteeing employment after the Contract if he was not reappointed and not one was mentioned or alluded to by the First Defendant in his advice to the Chief of Administration in the minute referred to in paragraph 3 above. 

11.	 And it therefore prompts the question: Is there no distinction between one's career-driven employment pursuant to his profession or trade and an 'appointment' to an office for a fixed term to serve at a higher level based on performance or could be for political convenience of the government of the day? 

12.	The distinction between the two was not fully appreciated when parties took for granted that non-renewal of appointment as DCP was akin to end of his contract and because appointment by NEC is the prerogative of the executive government, the Plaintiff had no reason to complain. Counsel were correct in respect of the prerogative of the NEC but not with respect to the Plaintiff's entitlement to continue employment in the Police Force unless dismissed for cause. With no such finding against him, he cannot just be told that his contract has come to end and he must leave.

13.	Mr. Dalid for the First Defendant relies on the decisions in Ereman Ragi and The State Services and Statutory Authorities Superannuation Fund Board v Joseph Maingu [Public Officers Superannuation Fund Board (POSFB)] [supra] and Young Wadau v PNG Harbours Board (supra) referred to above contends that the Plaintiff was employed under a contract and his employment was governed by private law and not a case for judicial review. As such he submits the Court cannot interfere in contractual relationship between parties in an employer-employee situation using the mode of judicial review. It is therefore submitted that if the Plaintiff is entitled to any relief at all damages is the appropriate remedy, not re-instatement.

14.	It is a good reminder to revisit what the Supreme Court said:

"As a general rule judicial review is used where a public body is relying for its decision making power on a statute or subordinate legislation made under statute or subordinate legislation. Judicial review is a remedy when the action of a public authority is to be challenged.

In R v East Berkshire Health Authority ex part Walsh [1984] 3 A.E.R. 425 at 429:
"The remedy of judicial review is only available where issues of "public law" are involved."

And in O'Reilly v Mackman [1982] 3 A.E.R. 680 per Lord Denning at 693:

"Now that judicial review is available to give every kind of remedy, I think it should be the normal recourse in all cases of public law where a private person is challenging the conduct of a public authority or a public body, or anyone acting in the exercise of a public duty."

And as per Lord Diplock in Council of Civil Service Unions v Minister for the Civil Service [1984] 3 A.E.R. 935 @ 949:

"For a decision to be susceptible to Judicial Review the decision maker must be empowered by public law to make decisions that if validly made would lead to administrative action or abstention from action by an authority endowed by law with executive powers."

Note here the emphasis is on public law, so what is public law as against private law?

Private Law rights relate to issues which arise either out of contract or out of tort whereby a private individual is claiming against either a private or public body damages or other remedy for a breach of contract or a breach of duty at common law which is owed to him personally.

Public Law - prima facie is the law which governs the actions of bodies designated by statute or by the prerogative where those actions are concerned generally to protect the interests of or to control the activities of the public at large. Whilst a private individual may well claim private benefits or rights arising out of the general exercise of the public law power or duty this would be where as stated above, the public authority is acting under a statute or subordinate legislation.

The respondent here claimed his wrongful dismissal from employment was a matter of public law. In fact it is merely a matter of a private law nature, the right of an employer to control and deal with his own employees. There is no statutory duty here, there is no statutory protection which makes this a matter of public law. This is purely a matter of the relationship between a master and servant. Whilst the master here is a Board created by statute the employment of the staff of the Board is not a matter of statute, there are no provisions in the legislation setting up the Board which give terms and conditions of employment or other matters which have been raised in this case. Merely stating in the Act that the Board may employ staff does not by itself make that employment a matter of public law.

In the case Kekedo v Burns Philp Ltd [1988-89] PNGLR 122 the subject of judicial review was clearly the exercise by a government official of a power under legislation namely the cancellation of a work permit.

But here before us the respondent was merely challenging his termination, yet neither this court nor the National Court have been referred to any legislation which shows that there is anything of a public nature about this, this is matter of private law which should be the subject of the usual writ of summons.

And see Sulaiman v PNG Unitech [1987] Unreported N610 where it was clearly stated:

"The right to seek Judicial Review has been granted where an injustice has been done and there is no other remedy. For example where a decision by a tribunal or public authority is final and the applicant has and will suffer some damage. However in this case the applicant if he has suffered some wrong clearly has some other remedy. He has a remedy to sue for damages for wrongful dismissal under his terms and conditions of employment." 

And further 

"The law is well settled. The Court will not grant specific performance of a contract of employment"; 

and see the authorities quoted in that case.

Where courts have intervened by way of review in the process of dismissal because of the failure to observe the rules of natural justice it has been where there is a statutory power or procedure being exercised not a contractual power. The Respondent here is trying to make the position of the Board a position of special status. We are not satisfied the Respondent here has a special status which would enable the Court to interfere in this way in a contract or agreement of employment."

15.	Counsel for the Third Respondent whilst not exactly supporting that position submitted in the alternative that should the Court find liability against the State, specific performance as the remedy sought by the Plaintiff when pleading for reinstatement to Deputy Police Commissioner (Operations) position is not the appropriate remedy. She argues that damages is the appropriate remedy in the circumstances of this case where relationships have turned sour and the law says that parties cannot be forced to live and like each other if circumstances have changed. See Isaac Lupari v Sir Michael Somare (supra).

16.	Judicial review is not concerned with the right or wrong of the action or decision but with the process, the process that was adopted and applied by the public body to reach its decision and whose action or decision that is sought to be reviewed. Was the Plaintiff properly terminated if he was terminated by either the First or Second Defendant?

17.	The issue of jurisdiction is misconceived. The Plaintiff, as a career officer in the Police Force before being elevated to Deputy Police Commissioner which is a position still within the Force is an employee of the State and his employment is covered by public law, having its source in the Police Act 1998 as amended. Office of the Deputy Commissioner of Police is a public office, and the authority under the Act that recommends for appointment is the Police Commissioner which is a public body and the authority that appoints is the National Executive Council which is also a public body. It is for this reason that this case is properly before this Court for adjudication as a Judicial Review matter.

Was the Plaintiff's employment terminated?

18.	 In my view the two internal office memos dated 16th August 2010 and 18th August 2010 respectively referred to in paragraphs 2 and 3 of the judgment effectively terminated the Plaintiff's employment in the Police Force. When an employee is taken off or removed from the payroll means that he is no longer required to remain in active service or employ with the employer. The pertinent question is, was correct procedure followed in terminating him? 

19.	Even if he was not terminated for cause, except that his contract expired and was not renewed, was the manner in which he was displaced in accordance with law? On the evidence presented the Plaintiff was given the marching orders without being accorded the benefits provided by law and the Contract that I allude to in the judgment in the succeeding paragraphs. 

20.	Mr. Vaki's employment as Deputy Police Commissioner (Operations) came to end on 16th August 2010 when he was advised by inter office memo given under the hand of the First Defendant as the Police Commissioner to the Chief of Administration when the three months extension pursuant to Clause 35.3 of his Contract lapsed. The Contract allowed him up to six months of grace period to remain in office for that period of transition while a decision is made for his successor or his reappointment. In his case, he was given three months.

21.	Otherwise Mr. Vaki's appointment as Deputy Commissioner of Police (Operations) had earlier expired on 11th April 2010 which constituted his three years term as Deputy Commissioner of Police (Operations) by his instrument of appointment. However, at the time his appointment lapsed Mr. Vaki was in fact under an indefinite suspension imposed by the National Executive Council following some serious disciplinary proceedings against him preferred by the First Defendant.

Serious Disciplinary Charges

22.	 The circumstances giving rise to these disciplinary charges are as reported in the news and set out in the judgment. As such for the bulk of his term as Deputy Commissioner of Police Operations, he was under suspension until his term expired. This suspension largely played a significant part in his career as senior police officer after 25th February, 2009 almost two-thirds into the term of his three year contract he was facing the following serious disciplinary charges:

a.	On the 25th of February 2009, between 9:00am and 10:00am at Brammel Street, Ela Beach, Port Moresby, did act in a manner by conduct which is prejudicial to good order and discipline in the Force, in that your overall conduct in assaulting Ms. Leslie Aihi, only encourages violence against women that is contrary to the Commissioner's Circular No. 06 of 2007. 

Thereby contravening Section 20(1)(az) of the Police Force Act.

b.	On the 25th of February 2009, between 9:00am and 10:00am at Brammel Street, Ela Beach, Port Moresby, did act in a manner by conduct which is prejudicial to good order and discipline in the Force, in that your overall conduct is unbecoming of a Deputy Commissioner of Police. 

Thereby contravening Section 20(1)(az) of the Police Force Act.

c.	On the 25th of February 2009, between 9:00am and 10:00am at Brammel Street, Ela Beach, Port Moresby, did act in a manner by conduct which reflects discredit on the Force, in that as a very senior police officer, did fail to stop and assist injured Ms. Leslie Aihi who fell off your moving vehicle and you sped off along the Ela Beach road. 

Thereby contravening Section 20(1)(az) of the Police Force Act.

d.	On the 25th of February 2009, between 9:00am and 10:00am at Brammel Street, Ela Beach, Port Moresby, did act in a manner by conduct which reflects discredit on the Force, in that as a result of your punch on Ms. Leslie Aihi, she fell off your moving vehicle in which she sustained a cut on her left eye brow, severe abrasions to her bum, bruises on her abdomen and frozen hip joints

Thereby contravening Section 20(1)(az) of the Police Force Act.

e.	On the 25th of February 2009, between 9:00am and 10:00am at Brammel Street, Ela Beach, Port Moresby, did act in a manner by conduct which reflects discredit on the Force, in that you punched Ms. Leslie Aihi on her left eye brow, which resulted in her falling off from your moving vehicle. 

Thereby contravening Section 20(1)(az) of the Police Force Act.

23.	These disciplinary charges were served on him together with his suspension notice on 2nd March 2009. He was suspended for 21 days by the First Defendant which was to lapse on 31st March, 2010. Before the three weeks was up the National Executive Council as the appointing authority hit him with an indefinite suspension as investigation were mounted by the Police in relation to the allegations constituting the five serious disciplinary charges. What happened, if anything, to the disciplinary proceedings to this date remains unclear.

24.	The Plaintiff attributes his predicament concerning his continued employment to the event of 25th February 2009, the subject of the five serious disciplinary charges against him by the Police Commissioner, the First Defendant. According to Mr. Vaki he had adequately responded to the Commissioner regarding those allegations which he said were baseless and untrue because the Complainant, Miss Aihi who complained to the Police subsequently withdrew the complaint and exonerated him so there really was nothing in the matter despite the wide publicity given to that complaint in the two daily newspapers, Post Courier and National on the 26th February, 2009 editions. 

25.	Mr. Vaki further contended that as the victim had withdrawn the complaint, no criminal charges were laid against him and more so, the five serious disciplinary charges against him were either abandoned or not properly formally conducted with a finding or determination when his term as Deputy Commissioner of Police (Operations) lapsed. 

26.	At the time Mr. Vaki appeared before me as the Plaintiff in this application he was still holding a substantive position as the Deputy Commissioner of Police (Operations) which had caused uncertainty in the Force as they cannot appoint a new Deputy. This was the result of an interim injunctive Court Order obtained ex parte on 19th November, 2010 before the Deputy Chief Justice Salika who also granted leave to apply for Judicial Review. 

27.	The Plaintiff was removed from the payroll on 16 August, 2010. He was reinstated on the payroll when he was granted leave and those restraining orders. Therefore, right up to the time of this trial, Mr. Vaki continues to hold office and is paid as Deputy Commissioner of Police (Operations) (inactive) as per the Court Order referred to in that is what the Court ordered. Right or wrong is not for the Department to question without getting itself in hot water for meddling with court order suffices to say that only this determination will now terminate this stalemate. 

28.	Mr. Vaki is a very experienced senior Police Officer whose career in the Police Force spans over 40 years. His highest rank was the Deputy Commissioner of Police (Operations) to which he was elevated on 11th April 2007 by National Executive Council decision that appointed him for three years. A Public Service Contract of Employment was also drawn up on 12th April 2007 but for some unexplained reasons he never got around to signing that contract to date. Nevertheless he commenced as Deputy Commissioner of Police (Operations) and paid at that level in the second week of May of the same year. In any event, there is no issue of his employment under the Contract although it was not signed.

Nature of Complaint and News Publication

29.	His disciplinary charges stem from these facts. On 25th February 2009 a young lady known as Leslie Aihi sustained serious bodily injuries after falling or allegedly pushed out of a moving police vehicle driven by the Plaintiff. This young lady immediately went to the Police Station and reported the incident. Police recorded the complaint and its Media Unit immediately released the story which was widely published in the media including Post Courier and National newspapers in their respective editions on the next day 26th February, 2009.

30.	The National in its edition published these articles under their respective headlines: 

[Reported in 'The National newspaper' dated Thursday February 26th 2009 – page 3 by Samson Kendeman]

"Woman 'pushed' from moving car

The girlfriend of a top police officer was admitted to a private clinic with serious injuries after she was allegedly thrown out from his moving vehicle near the ADF building at Ela Beach in Port Moresby yesterday.

According to police sources, the couple had an argument inside the vehicle after which the officer allegedly pushed the woman out from the vehicle. The sources said the victim suffered a dislocated hip and injuries to her buttocks and back when she fell onto the road.

Police said the matter was reported to Down Town police, but the policemen there were reluctant to arrest and charge the officer involved. Police Commissioner Gari Baki confirmed the incident yesterday from Wabag, where he is attending the National Executive Council (NEC) meeting.

"Yes, I am aware of the situation, and I have directed police Internal Affairs officers to investigate the incident. It is criminal in nature, and I condemn such actions," Mr. Baki told The National.

He said he would deal with the matter when he returned to Port Moresby later this week. 

Only last November 25, the police commissioner launched the family and sexual violence front desk, which is aimed at eradicating violence against women. During the launch, Mr. Baki issued the following directives: 

•	That members of the constabulary respond to and record all complaints of family and sexual violence; 

•	That members of the constabulary thoroughly investigate complaints of family and sexual violence; and 

•	That members of the constabulary treat family and sexual violence complaints as criminal offences and not as civil or family matters. 

He had also promised that he would strive to end all forms of violence against women and promote gender equality. 

"The risk of violence, both at home and in the community, is a constant presence in the lives of many women, especially in the Highlands and in major cities," Mr. Baki had said at the launch. 

Vaki suspended pending probe

Deputy Commissioner and Chief of operations Geoffrey Vaki has been suspend form duties for 21 days. The suspension followed an incident allegedly involving Mr. Vaki and a woman friend near the ADF building at Ela Beach in Port Moresby last week. 

Police Commissioner Gari Baki yesterday confirmed the suspension, which took effect yesterday, saying it was an administrative matter. Mr. Baki said a formal investigation was now underway into the alleged incident. 

Assistant Commissioner of Police and head of Crimes Raphael Huafolo has been appointed acting deputy commissioner of police chief of operations while Mr. Vaki is under suspension. 

"Further appropriate actions will be taken once the investigation is completed," Mr. Baki said. 

According to police reports, Mr. Vaki allegedly pushed his female friend from his moving vehicle after an argument. 

The victim was admitted to a private clinic with serious injuries, reportedly suffering a dislocated hip and injuries to her buttocks and back when she fell onto the road. 

Police said the matter was reported to Down Town police, but the policemen there were resultant to arrest and charge Mr. Vaki since he was a senior officer. Only last November 25, Mr. Baki launched the family and sexual violence front desk, which his aimed at eradicating violence against woman.

During the launch, Mr. Baki had promised that he would strive to end all forms of violence against women and promote gender equality. 

The risk of violence, both at home and in the community, is a constant presence in the lives of many women, especially in the Highlands and in major cities," Mr. Baki had said at the launch."

Retraction of complaint

31.	The Plaintiff was incensed by this publication and protested his innocence relying on the victim's retraction of the story she had earlier given to the Police and this retraction is evidenced by Ms Aihi's letter dated 12th March 2009 addressed to Mr Blaise Nangoi of Post Courier. The letter reads: 

"The Chief Editor
Mr. Blaise NANGOI
Post Courier

I visited the Post Courier last week on 03/03/09 to provide my story in relation to the incident at Ela Beach car park between Mr. Vaki and I on the 25/02/09.

The purpose was that I had withdrawn the case and I wanted no further police action. I want to clarify here that when I look back and recall I should have listened to Mr. Vaki's explanation on assisting the woman client. I drew the wrong conclusions. 

I therefore pulled at the woman who was in the vehicle and as a result of the struggle my hand lost grip of the left front passenger door resulting in me slipping falling to the ground causing injuries, scratches and bruises to my body. I was not in the vehicle as reported. I was walking up the vehicle. Mr. Vaki then drove off. 

I was not flung out of the vehicle as reported and also did not dislocate my hipbone as reported. This story may have come from people who were not at the scene. I did not report it to the newspapers. Police Internal Affairs must have reported it. 

I was angry at the time so I reported the matter to the Police Internal Affairs office. A statement was taken. I then received medical treatment. 

The next day on Thursday the 26/02/09, I read what was written in both National and Post Courier and I really regretted what I did. 

The papers really caused big shame to Mr. Vaki who did not cause the problem in the first place. I did give a first statement to the Internal Affairs as I said but then gave them through my brother a second one.

I told Mr. Vaki I was really sorry for what I had done to bring the publicity in the newspapers and causing him shame and his suspension from duty. 

It is my fault. I therefore informed the Internal Affairs Officers in my second statement that I had apologized to Mr. Vaki. He has accepted my apologies and I therefore decided to withdraw my complaint and no further action to be taken. We have since reconciled. 

Mr. Vaki is known to my family. He is a kind and helpful person. We are both from the same area in the Bereina District. This incident has brought so much negative publicity making people think Mr. Vaki caused it. The matter has settled now and it should be put to rest. I don't want no further Police Action taken. I do not want to be threatened and my constitutional rights should be respected. It is in my interest because publicity in the press has caused me so much shame and undue pressure. 

I have prayed and asked for Gods forgiveness and therefore want peach and nothing more."

32.	By Notice in the National Gazette dated 27 March 2009 the Plaintiff was suspended as the Deputy Commissioner Operations and Mr Anthony Wagambie Snr was appointed as acting Deputy Commissioner (Operations).

33.	The complainant's retraction, according to Mr. Vaki, put to rest this matter and status quo must prevail and he was getting more and more anxious and agitated as each day passed with his continuing suspension and disciplinary charges remaining to be processed. 

34.	But neither the First Defendant nor the Second Defendant shared Mr. Vaki's concerns over his predicament, probably still reeling over the effects of the negative publicity and its backlash on the constabulary's image since the damage had already been done by the publication that splashed across the country, region the globe of a senior cop being accused of extreme violent conduct against a woman but more so in an extra marital relationship. This is irrespective of what happened to the complaint after it was lodged and retracted after its publication when the Plaintiff felt hurt and most likely the victim as well but the damage to the Police Force was already done that not even Mr Vaki's apology to the Commissioner or Ms Aihi's retraction of her complaint can erase. It may only mitigate the Plaintiff's culpability but cannot wipe the stain on the Force that the incident had caused, however it was reported. 

35.	The disciplinary proceedings instituted by the First Defendant against the Plaintiff for some reason failed to progress to finality when the National Executive Council imposed an indefinite suspension against the Plaintiff. To date that matter remains in limbo and the Plaintiff relies on this unfinished disciplinary proceeding as a contributing factor for his dilemma and termination from employment as Deputy Police Commissioner (Operations).

36.	While the Plaintiff's contract was drawing towards its end in April 12, 2010, for reasons given by the First Defendant, the Plaintiff was recalled to active duty from his suspension on 12th March 2010. Unfortunately that hint was not recognized by National Executive Council who refused to extend the Plaintiff's term while Anthony Wagambie Snr continued to remain as Acting Deputy Police Commissioner (Operations).

37.	On 16th August 2010 the Plaintiff was advised of his removal in that he was no longer a policeman by virtue of his non-reappointment following expiry of his term under the contract. He was removed from the pay-roll thereafter. 

Application for Interim injunctive Orders

38.	Plaintiff commenced this Judicial Review proceeding on 26th October 2010, about two months after his removal from the pay-roll. He sought leave to apply for Judicial Review and amongst the relief he claimed in the Notice of Motion were the following:

"1.	That pursuant to Order 16 Rule 3(8)(a) of the National Court Rules the First Defendant his employees, servants and/or agents be restrained from removing from the possession of the Plaintiff the Police issue vehicle described as a Toyota Landcruiser 10 seater four wheel drive, grey in colour bearing the license plate number BCM 582 and the said vehicle to remain in the Plaintiffs custody, power and possession until final determination of the action herein or until such further orders of the National Court. 

2.	That pursuant to Order 16 Rule 3(8)(a) of the National Court Rules the First Defendant his employees, servants and/or agents immediately restore the Plaintiff to the Police Force payroll pending the final determination of the action herein or until such further orders of the National Court;

3.	That pursuant to Order 16 Rule 3(8)(a) of the National Court Rules the First Defendant his employees, servants and/or agents be restrained from processing and paying to the Plaintiff any final entitlements owed to him which have accrued as a consequence of both his services to the Royal PNG Constabulary in his entire career from the date of commencement of service up to the purported date of termination and any entitlements owed to him under his Contract of employment dated 12th April, 2007 (now lapsed) pending the final determination of the action herein or until such further orders of the National Court;

4.	That pursuant to Order 16 Rule 3(8)(a) of the National Court Rules the Second Defendant be restrained form deliberating and appointing a person either serving or not serving to the position of Deputy Police Commissioner (Operations) pending the final determination of the action herein or such further orders of the National Court; 

5.	That costs be in the cause.

6.	Such other orders as the Court deems fit.

7.	That the time of the entry of the Orders are to be abridged to the time of settlement by the Registrar which shall take place forthwith."

Grant of Leave and Interim Injunctive Orders

39.	In an ex parte application made before the Deputy Chief Justice Gibbs Salika, on 19th November, 2010 His Honour, while granting leave to the Plaintiff, issued the following interim injunctive orders: 

"THE COURT DOTH ORDERS (per Salika, DCJ) 

1.	Leave is granted to apply for Judicial Review. 

2.	The First Defendant, his employees servants and/or agents are restrained from removing from the possession of the Plaintiff the Police issue vehicle described as a Toyota Landcruiser 10 seater four wheel drive, grey in colour bearing the license plate number BCM 582 and the said vehicle to remain in the Plaintiff's custody, power and possession and this order is made returnable on the 10th December, 2010.

3.	The First Defendant his employees, servants and/or agents immediately restore the Plaintiff to the Police Force payroll to be effected forthwith pending final determination of this matter. 

4.	The First Defendant, his employees, servants and/or agents are restrained from processing and paying to the Plaintiff any final entitlements owned to him which have accrued as a consequence of both his services to the Royal PNG Constabulary in his entire career from the date of commencement of service up to the purported date of termination any entitlements owed to him under his Contract of Employment dated 12th April, 2007 (now lapsed) and this orders shall been forced forthwith until final d termination of this matter. 

5.	The Second Defendant is restrained from deliberating and appointing a person either serving or not serving to the position of Deputy Commission (Operations) and this Order is made returnable on the 10th December, 2010.

6.	The matter is made returnable on the 10th December, 2010 where further Directions will be given by the Court. 

7.	Costs be in the cause. 

8.	That the time for the entry of the Orders is abridged to the time of settlement by the Registrar which shall take place forthwith."

40.	The orders were made returnable on 10th December, 2010 but that never eventuated and to this date, those interim orders have been in force perpetually causing serious inconvenience to the Force. At the time these orders were made, the Plaintiff when I recalled him to give further evidence on 28 September, 2012 said he was already off the payroll for seven months when leave was granted. Unless I am wrong in my counting, judicial review proceedings were filed within three months of his termination in October 2010 and leave was given in November which is the fourth month. 

41.	At the time when leave was granted and those interim orders made, Mr Baki was already out of office by nine days as by Notice in the National Gazette dated 10th November, 2010 he was suspended as Commissioner and acting Deputy Commissioner Operations Anthony Wagambie Snr was promoted to Acting Police Commissioner. National Executive Council also appointed Mr. Fred Yakasa as Acting Deputy Police Commissioner (Operations) to succeed Mr Wagambie Snr.

42.	No change was made to the Plaintiff's position although at some point in time in 2011 further changes were made to the Commissioner's position where Anthony Wagambie Snr was removed and Deputy Police Commissioner (Admin) Mr. Toami Kulunga was appointed the Commissioner and who is the current Commissioner at the time of trial. 

43.	According to Mr. Kulunga's affidavit based on the brief from his legal team, the interim injunctive orders made ex parte on 19 November 2010 were returnable on 10th December 2010 for full hearing but that never eventuated and that position remains to this day. It would therefore raise the question of how long must an interim order be allowed to remain active or in force if it is not sanctioned by an inter parties hearing and reply from the other side. 

44.	Since November 2010 to the date of this trial, the Plaintiff continues to remain on pay-roll as the Deputy Police Commissioner (Operations) (inactive or non-performing) with all entitlements and benefits accruing to the position. These interim orders prevented the Police Department from processing his final entitlements. 

45.	There are unnecessary restrictions and impediments presently felt in the administration when normal operations and good governance and administration of Police Force cannot be achieved because: 

1.	No permanent appointment can be made to Deputy Police Commissioner (Operations) until the Court Order is lifted. 

2.	The Plaintiff's term had expired and was no longer serving member as the Deputy Police Commissioner (Operations) and no longer a member of the Police Force after his removal from pay-roll but was reinstated by this Court by the Orders of Deputy Chief Justice Gibbs Salika.

3.	There are two Deputy Police Commissioner (Operations) enjoying the same salary packages and privileges, one holding the substantive position and the other is acting. 

Grounds for Judicial Review

46.	Plaintiff seeks judicial review on the following grounds:

1.	Error of law on the face of the record;
2.	Ultra vires or Police Commissioner acted outside his powers under Police Act 1998;
3.	Breach of Natural Justice;
4.	Unreasonableness under the Wednesbury Principle.

ISSUES

47.	And the issues for trial would be:

1.	What is the error of law on the face of the record and who committed the error?
2.	Whether the First Defendant acted ultra vires his powers under the Police Act and how is he guilty of ultra vires?
3.	Was the Plaintiff denied natural justice and how was he denied natural justice?
4.	Whether the First or Second Defendant acted unreasonably and how did he act unreasonably? 

A.	Error Of Law

48.	On behalf of the Plaintiff it is submitted that the Police Commissioner erred in terminating Mr. Vaki as the Deputy Commissioner for Police (Operations) when he held a substantive position in that office when his contract of employment lapsed on 12th April 2010 but he was still on suspension because there was no instrument of his revocation and gazettal notice of such in the National Gazette, let alone the Plaintiff being notified formally in writing of his termination by the National Executive Council.

49.	It was submitted that the Police Commissioner's only role was as specified in Section 49(5) and (6) of Police Force Act 1998 which was limited to marshalling, investigating and providing information and making recommendation to the Appointing authority which is the National Executive Council.

50.	The First Defendant was also criticized for not carrying out proper investigation relative to the five serious disciplinary charges which the National Executive Council had not yet deliberated on and there was delegated power from National Executive Council for him to terminate the Plaintiff on 16th August, 2010.

B.	Ultra Vires

51.	It is submitted that the First Defendant acted outside the Act or ultra vires the Police Act 1998 when he terminated the Plaintiff as Deputy Police Commissioner (Operations). Mr. Bonner submits that with the absence of evidence showing that the Commissioner acted within his powers, the Plaintiff's termination must be deemed unlawful. 

C.	Breach Of Natural Justice

52.	Plaintiff submits that principles of natural justice must be observed where a person is terminated for cause such as serious disciplinary offence. There must be evidence of proof of guilt or conviction. If his termination related to the complaint of Ms. Aihi, he has not been prosecuted for it either criminally or disciplinarily and as such his termination founded on these serious disciplinary offences was arbitrary an did not follow or conform with rules of natural justice in that the Plaintiff's explanation to those charges were not considered. 

D.	Unreasonableness Of Decision

53.	Mr. Bonner submits that both the First and Second Defendants were unreasonable in the way they handled his case at different times that he was not duly considered for re-appointment though he applied to be reappointed to the Deputy Police Commissioner's position because of their mishandling of his serious disciplinary charges. This is the thrust of this argument from the Plaintiff's written submissions. 

54.	Ms. Vate for the Second Defendant argued that the Plaintiff's claim for error on the face of the record had no merit because the Plaintiff was appointed for period of three years and that period lapsed upon reaching its date of maturity. However, as a clause in his contract (clause 35.3) required three months grace period to be given, his term was extended for three months from 11th April 2010 and he served for another three months until August 2010. At the end of the three months, his employment came to end by operation of law under his contract. There was therefore no error on the face of the record. 

55.	Ms. Vate further submitted that there was no requirement under Clause 27 of Contract of Employment (Termination of Employment) prescribing any procedure for any instrument evidencing revocation of his appointment and gazettal of same in the National Gazette as Deputy Police Commissioner. That was the Plaintiff's own imagination and opinion but not supported by the Defendants. The absence of such did not validate his continued employment in the Force. She argued that the Plaintiff's contract of employment expired, he was not terminated by the Defendants. In other words when his term lapsed, it was not renewed or he was not re-appointed. 

56.	It is also submitted that Plaintiff's reliance on section 55 of the Police Act 1998 is erroneous and irrelevant because that provision does not apply to Deputy Commissioner of Police and it specifically makes exception to the office of the Deputy Commissioner. So that ground which is pursued under Procedural Ultra Vires has no merit. This provision concerns demotions and dismissals of members of the regular constabulary except Deputy Commissioner. 

57.	On the issue of breach of natural justice, it was the appointing authority, namely, National Executive Council that suspended the Plaintiff and it was its prerogative to renew or not renew his appointment, let alone to appoint any other applicant to the position of Deputy Commission of Police (Operations). 

58.	It was also submitted that the First Defendant complied with all the steps in dealing with the Plaintiff from suspension to his ultimate removal from the Force following expiry of his term after National Executive Council in its discretion chose not to re-appoint him. 

59.	It is acknowledged that five serious disciplinary charges laid remain in abeyance but this inaction does not deprive the Plaintiff of any right.

60.	 On the issue of unreasonableness or sometimes referred to as the Wednesbury principle, Ms. Vate submits that National Executive Council was under no legal or moral obligation to reappoint the Plaintiff as Deputy Commissioner of Police (Operations) after his term expired, even if his application was placed before the National Executive Council. It was submitted that there was no evidence supporting the Plaintiff's contention that he was recalled to active duty and National Executive Council ignored the First Defendant's recommendation to uplift his suspension and reinstatement.

61.	 I have heard the submissions and also read detailed written submissions filed by counsel in addition to their oral presentations. If it is settled law in judicial review of administration and executive acts of public bodies that the court is only interested in the process rather than the decision itself, then the important question here is, was the Plaintiff unfairly and unjustly terminated from his employment as Deputy Commissioner of Police (Operations)?

62.	Firstly, there must be evidence establishing that the Plaintiff was dismissed or terminated for cause by either the First or Second Defendant. Secondly there must be evidence that the process adopted and applied in terminating his services was unfair and unjust. And thirdly, the public body failed to give reasons for his decision or if he did give reasons, they are outrageous and unreasonable. 

63.	The evidence before me show that the Plaintiff was (1) firstly, charged and suspended for 21 days by the Police Commissioner; (2) secondly, he was charged with five serious Disciplinary offences by the Police Commissioner and referred to the National Executive Council; (3) further suspended indefinitely by the National Executive Council upon receipt of advice from the Commissioner, and fourth and finally, the Commissioner or Second Defendant removed him as Deputy Commissioner Police and Member of the Police Force on 16th August, 2010. 

64.	What is apparent on the evidence is that the plaintiff's term in office as Deputy Police Commissioner (Operations) terminated or lapsed while he was still under suspension. And when it lapsed the First Defendant ensured that he accorded the Plaintiff his full benefit accruing under the Contract of Employment which was never signed by the parties but accepted as the governing law for that employment by extending his term for three months as stipulated in Clause 35.3 of the Contract. If the First Defendant wanted, he could have refused to take heed of the contract because it was never signed and as such not a binding agreement on the parties named in the instrument including the Plaintiff. But the First Defendant did the opposite, he gave recognition and effect to the contract and accorded all the privileges to the Plaintiff due under the Contract including extension notwithstanding the five serious disciplinary charges.

65.	 The fact that the serious disciplinary charges were left in abeyance and not prosecuted to finality can be attributed to many reasons and I don't want to speculate. I best leave that to the First and Second Defendants as well as the two successors to the top post. But how do they affect the Plaintiff adversely by the fact of their non-disposal? Critics can or may say that the Plaintiff should be grateful that it was not deliberated on and outcome delivered. If the decision was not his to make, why not leave the sleeping dogs alone? It would be far better to leave things as they were than face the consequences he did not expect.

66.	The Plaintiff on one hand was and is most fortunate that for such a very serious allegation made and reported in the press, no criminal charges were pressed against him. When such complaint is lodged against other citizens or civilians, the full impact of the law is applied on that person regardless of whether the complainant/victim withdraws his/her complaint or not. This is a classical case where public sentiments like 'police are above the law', police are law unto themselves', or 'one law for police and another law for the civilians', get credence when serious allegations like this get reported and suddenly get retracted or subdued or swept under the carpet and never heard of again. 

67.	The point that must be made here is that the fact that the complaint was retracted did not end the matter. The fact that a complaint was lodged and immediately went public nationwide and attracting wide criticism across the country and globally and suddenly, can't just die or frizzle out altogether leaving no traces behind. Public have the right to question what happened? The royal constabulary had been given a huge blow and it had to be a Deputy Police Commissioner, what more scandal need there be for the Commissioner to be facing when public criticism of Police violence against women was at its peak at the time when the Constabulary was taking on the issue head-on? But notwithstanding that apart from just laying charges and served on the Plaintiff, that is where they were laid while the matter, it seems, was left to the National Executive Council to decide. 

68.	No decision was made on these disciplinary charges. Proving these charges would not have required the criminal standard of proof. The fact that the complainant withdrew her complaint was no basis to leave the case unfinished. 

69.	The position of Deputy Police Commissioner (Operations) is a public office that belongs to all. It does not belong to anyone. The process for appointment is well defined in the Police Force Act. 

70.	The appointing authority is under no obligation to the Plaintiff and under no obligation to advise him onto whether it considered his application or not. That is the prerogative of National Executive Council. Given that at the time of his application or the job he was still under suspension, any lack of response and advice to him should have given him clear message that he was no longer needed.

THE LAW

71.	Judicial review is concerned with the decision making process rather than the decision itself. Case law authorities make this quite clear. Justice Davani in Peter Ipu Peipul v Sheehan J, Mr Orim Karapo and Mr Iova Geita (Constituting the Leadership Tribunal), Ombudsman Commission of Papua New Guinea and The Independent State of Papua New Guinea (2002) N2232 while revisiting the principles for judicial review application said:

"Judicial Review does not concern itself with the reasoning of the sub-ordinate authority with a view to substituting it with the Courts own decision, rather it is concerned with the decision making process, and not the decision itself. It is concerned about fairness of procedure and fair hearing."

72.	The circumstances under which Judicial Review is available are where the decision making authority:

(a)	Lacks power to make the decision;
(b)	Exceeds or abuses its power;
(c)	Commits an error of law;
(d)	Breaches the principles of natural justice;
(e)	Arrives at a decision which no reasonable tribunal would have reached;
(f)	Takes into account irrelevant considerations in its decision making process;
(g)	Failed to take into account relevant considerations in its decision making process." See Kekedo v Burns Philp (PNG) Ltd & Others [1988-89] PNGLR 122

73.	In this case the Plaintiff relies on inter alia, error of law, breach of natural justice and unreasonableness. I shall come to them shortly when analysing the submissions and the evidence before me.

74.	Mr Bonner for the Plaintiff cited an old case of Alumba v Commissioner of Police [1996] N1438 a judgment of Akuram, AJ where His Honour said that failure to produce evidence of records or materials that the Commissioner had before him to base his decision, the Plaintiff must be taken to be telling the truth. His Honour makes this observation:

"There are no reasons nor Police Commissioner's copy of the SDOR file containing relevant information upon which Commissioner used and decided to dismiss the Applicant. So we really do not know what evidence was used or whether Applicant's reply to the charges were part of the materials available to the Commissioner to reach his decision. This is important because the purpose of a judicial review of a lower court or decision making authority is to see from its records below whether it acted in excess of its jurisdiction or not complied with rules of natural justice or made an error on the face of the record (See Paul Undipe v The Police Commissioner (1991) PNGLR, 97 and Rose Kekedo v Burns Phillip (1988-88) PNGLR 722)."

75.	His Honour continued:

"On the other hand, I can say that in the absence of such evidence or records from the Commissioner, I have to give the benefit to the Applicant and say there is nothing. As is always the practice in review proceedings, the superior court must have the records of proceedings below so that it can review the records to see whether there is:

(a) 	Want or excess of jurisdiction;
(b) 	Breach or non compliance with the rules of natural justice; or
(c) 	Error on the face of the record.

So from the affidavit evidence of the Applicant, I can only say that what he said is correct. That is he was never heard in that his reasons for denial were never taken into account. There is also no reason given. Therefore in the absence of any evidence to the contrary I will believe the Applicant's story."

76.	It is trite law that disciplinary proceedings arising from the same facts constituting a criminal offence and Plaintiff having being tried for that offence and either convicted or acquitted does not amount to or constitute double punishment.

77.	In this case the Plaintiff does not stand in the same position as Joseph Maingu and Young Wadau (supra). In those cases the Supreme Court was correct in applying the law it did. Their respective employments were clearly covered by private law whereas the Plaintiff in this case is employed by the Royal Papua New Guinea Constabulary which is a State Service and a Government Department and as such judicial review was clearly applicable.

78.	In this case, the Plaintiff was suspended indefinitely and his case was left unattended during the period of his suspension. An inference one can draw from this is that it was the appointing authority's prerogative to come to it when in its opinion it was convenient to deal with it otherwise it was a case of 'plaintiff made his own bed, let him lie in it'. And this seems to be the unenviable conclusion that is difficult to confirm unless the Prime Minister as the head of the National Executive Council is prepared to answer this question.

Was there termination of employment?

79.	 The evidence supports the view that the Plaintiff was terminated on 16 August, 2010 which was after the expiry of his three months grace period that follows after the end of his contract according to clause 35.3 of the Contract. The First Defendant who already was privy to the decision of the Second Defendant when relaying that information to the Plaintiff also terminated his employment. It is deemed that the First Defendant was acting in accordance with the Police Act section 49(6) that states:

"(6)	Where a Deputy Commissioner is removed from his post under one or more of the grounds referred to in Subsection (5), that removal shall, unless the Commissioner with the consent of the National Executive Council otherwise directs, automatically terminate that person's membership in the Force."

80.	However, that provision must be read with or subject to subsection (5):

"(5)	No contract or condition of employment shall provide for the removal of the appointee from the post of Deputy Commissioner before the expiry of the term of his contract or appointment, except upon one or more of the following grounds:—

(a)	conviction of an offence involving dishonesty or for which a term of imprisonment may be imposed;
(b)	failure to comply with an essential term or condition of the appointment;
(c)	negligence or dereliction of duty;
(d)	misconduct;
(e)	incapacity due to infirmity of mind or body;
(f)	failure adequately to perform the duties required of a person holding the rank to which he is appointed;
(g)	resignation or retirement from the Force;
(h)	in the interests of the State.

81.	But this termination followed non renewal of the Plaintiff's term as the Deputy Commissioner of Police, termination was not based on any one of those circumstances specified in the preceding paragraph. 

82.	The Plaintiff's guarantee of continued employment if not reappointed after expiry of his term is safeguarded by the Contract. The Contract that was accepted as the instrument that governed his employment not only covered the period within the contract but also included the period after the Contract had expired. There is no question about the validity and enforceability of this Contract. It was recognized at the outset. Under the General Terms and Conditions and Definitions in Cl. 9.7 it reads:

"Upon completion of the contract, a new contract may be offered to the Deputy Commissioner in accordance with these terms and conditions, provided that where a new contract is not offered, employment in the Police Force may continue thereafter." (emphasis is mine)

83.	So where no new Contract is offered, employment in the Police Force may continue thereafter. This is further reiterated in Clause 27.5 where the following appears:

"Subject to the Deputy Commissioner securing future employment in the Police Force or National Public Service under section 35 hereunder, termination of the Contract will otherwise result in termination of employment from the Police Force pursuant to the Police Force Act."

84.	Clause 27.5 is specific that termination from the Police Force pursuant to Police Act is subject to the Plaintiff being given future employment in either the Police Force or National Public Service. Was the Plaintiff given that opportunity? He could not have had that opportunity if he spent the entire time under suspension while his disciplinary proceedings remained unattended. 

85.	Under the heading 35. Future Employment in the Public Service section 35 provides the following:

"35.1 Upon termination of the Contract in the event that either:

(a)	The Commissioner of Police does not wish to renew the Contract; and
(b)	The Commissioner of Police does not arrange an alternative offer of employment;

Then the deputy Police Commissioner shall be free to take up any other appointment secured by him within the National Public Service, and service shall be continuous as defined hereunder.

35.2 In the event that upon termination of Contract the Deputy Police Commissioner does not take up a new Contract, or secure w position within the National Public Service, then the Deputy Police Commissioner's employment in the Police Force shall cease, provided that the selection and termination procedures in the Police Force Act shall be followed.

35.3 Notwithstanding the above, the NEC acting on advice of the Commissioner of Police may extend the Contract for a further period up to 6 months in duration by mutual agreement with the Senior Officer where such extension is considered by the Commissioner of Police to be in the interest of the State."

86.	Clause 9.7 assures him a job in the Police Force after the Contract and clause 27.5 assures of continued employment without loss of service in either the Police Force or the National Public Service and clause 35 goes further to instruct that in the event that the Commissioner decides not to renew his Contract, does not arrange an alternative employment for him in the Force or in the Public Service or the Deputy Commissioner does not secure a position within the National Public Service or the Police Force, his employment in the Force ceases forthwith provided that the selection and termination procedures in the Police Force Act shall be followed.

87.	Close 35.2 is expressed in mandatory terms 'provided that the selection and termination procedures in the Police Force Act shall be followed."

88.	In my view the Plaintiff's termination by the First Defendant on 16 August, 2010 was arbitrary and unreasonable because natural justice required that he must be told of the decision maker's reasons for his termination. The fact that National Executive Council has not reappointed him as Deputy Commissioner is not a ground for termination of Plaintiff unless he was guilty of some serious misconduct. 

89.	But he was not guilty of any such conduct except those charges which were still pending determination. The fact that National Executive Council chose not to renew the Plaintiff's term as Deputy Commissioner only meant that he was not a Deputy Commissioner anymore and it logically follows that he reverts to his substantive rank that he held prior to his elevation to Deputy Commissioner Police. 

90.	What the First Defendant did was terminate the Plaintiff in the guise of non-renewal of his term of office as DCP and avoid determining the Plaintiff's five serious disciplinary charges that have been pending action. Unfortunately he was wrong. It was incumbent upon him as the Commissioner to have dealt with that outstanding issue because it impacted on the Plaintiff's career. What happened between the First Defendant and the NEC in respect of this disciplinary matter concerning the Plaintiff is unclear and now has returned to haunt them, no matter how much the First Defendant can try to shake it off.

91.	One can only speculate what might have happened here as a lot of changes occurred in the hierarchy of the Police Force and even the National Executive Council during that time up to the time of this trial as seen in this proceeding where two successive changes took place consecutively in the top echelon of the Police Force within a space of twelve months. The current Commissioner was one of the two Deputy Commissioners in charge of administration at the material time these events were taking place or being orchestrated. It was during this time the First Defendant was removed as the Commissioner of Police and Mr Anthonny Wagambie Snr was appointed to succeed him as the Acting Commissioner. 

92.	However, Mr Wagambie Snr's appointment was also short-lived when there was a change in the political scene with Somare Government being replaced by O'Neil Government when the current Commissioner, Mr Toami Kulunga was elevated from Deputy Commissioner Administration to replace Mr Wagambie Snr. So there were series of changes taking place in these critical institutions including change in the composition of the National Executive Council, different head and different body constituting the appointing authority that initially appointed the Plaintiff. 

93.	This could have been enough reason for the Plaintiff being left high and dry as he waited for his position to be clarified, not only in relation to his position as the Deputy Commissioner of Police (Operations), also in relation to his serious disciplinary charges that were laid against him. The latter needed to be resolved promptly so he could get on with his life but that did not happen.

94.	There is something wrong with the process of his removal because it is shrouded in uncertainty and ambiguity. Firstly, without any explanation from the First Defendant who is no longer occupying the Commissioner's chair, it would be difficult to ascertain whether the First Defendant terminated the Plaintiff's employment as Deputy Commissioner Police only or also as a member of the Police Force in August 2010? Secondly, with the absence of the First Defendant for the same reason given above, no one can properly assist the court as to what happened to the five charges of serious disciplinary offences and what is going to happen to them? When there are these loose ends to tidy up and resolve, it was not right to remove the Plaintiff without knowing the outcome of his disciplinary proceedings. 

95.	The way he was thinking could be deduced from his Minute to the Plaintiff on 15 March 2010 when he recalled him to active duty about a month or so remaining before his term expired while he was still under suspension. This particular gesture shows two faces of the First Defendant. On one hand he is recalling the Plaintiff while he is still on suspension without having dealt with his disciplinary matters, three months after he had extended his term following expiry of his Contract, he instructs Chief of Administration to lay off the Plaintiff from the payroll.

96.	And he did this recall of the Plaintiff to active duty, even when Mr Wagambie Snr was the acting Deputy Commissioner Police Operations. But before that could be effected, the First Defendant himself was replaced by the very person he was trying to remove and return the Plaintiff to his substantive position. But he could not do that without the blessing of the National Executive Council. National Executive Council instead decided to give him the boot and appointed Mr Wagambie, Snr as acting Commissioner. All this is now water under the bridge.

97.	I am of the view that the Plaintiff's termination was unlawful as he was prematurely dismissed without adjudication of his disciplinary charges. Only the outcome of those charges could, if sustained, provide grounds for his dismissal from the Police Force.

98.	I am also of the view that following the expiry of his term as Deputy Police Commissioner, the Plaintiff reverted to his substantive rank that he held immediately prior to his appointment as Deputy Police Commissioner. That would have been his correct rank once he was stripped of his elevated status following the expiry of his term. It might have been a different story, if he held the Commissioner's post which would attract different consideration but as Deputy, being a career officer who made his way up the rank to where he was when he faltered, he still had one level to climb and every career officer aspires to reach this pinnacle of their career.

99.	Disciplinary processes are not always aimed at short-cutting anyone's career development and ending it prematurely. They are also meant to correct a person and redirect him to be a better worker. This is why any disciplinary matter involving a worker, regardless of his rank, must be dealt with studiously and expeditiously because it impacts on people's lives and career path. Once started must be completed promptly applying the rules of natural justice and fairness.

100.	In this case the Plaintiff has not suffered any loss in terms of salary and other entitlements that went with the job. However, in the light of what I found in my judgment, the Plaintiff was accorded salary and benefits far in excess of what he should have been entitled to pending the hearing of his case and backdated to the time his contract expired or was removed from the payroll. If at the time he was removed from the payroll his contract had already expired, his salary at that time would have been that of the substantive rank he held in the Police Force prior to his appointment as Deputy Commissioner of Police.

101.	 The reason is fairly simple. National Executive Council, the appointing authority, is a different body altogether to the Police Force over which the Police Commissioner had no control nor could he direct except to recommend. So if the power to appoint a commissioned officer to the rank of Deputy Commissioner vested on the National Executive Council, the court cannot hold the Commissioner to task on this and the National Executive Council is a political animal that the court must be slow to interfere in its affairs. Under the Constitution, some functions that National Executive Council performs are non-justiciable-see s.153 Constitution.

102.	In a nutshell what I perceive happened in the case of the Plaintiff is this. Two thirds into the term of his three year contract as Deputy Police Commissioner (Operations) an unfortunate incident of 25 February 2009 that was given wide publicity resulted in disciplinary proceedings in which five serious disciplinary charges as earlier described were laid against the Plaintiff. Those charges were duly served and the Plaintiff did respond to them. See para 17 of Mr Vaki's Affidavit Exhibit P1 Annex K.

103.	In the normal course of events these charges and the explanations would have been forwarded to the Minister for Police for the National Executive Council's deliberation and action. This happened because thereafter the National Executive Council suspended the Plaintiff for an indefinite period. Cabinet took no other action apart from suspending the Plaintiff and that position was maintained until his term as Deputy Commissioner Police ran out.

104.	Meanwhile at the Police Headquarters the Commissioner did nothing when the ball was really in his court to pursue the disciplinary proceeding to its finality. Instead he took a laid back attitude once having passed the ball to the National Executive Council and expecting the National Executive Council to deal with the matter. But that did not eventuate. However the Contract and the Act only empowered the Commissioner to exercise his disciplinary powers on Deputy Commissioner but he failed to do so.

105.	Instead, as evidence shows, he chose to ride on the back of the National Executive Council decision not to re-appoint, most probably that might have been his position and recommendation, the Plaintiff as being the basis for terminating him from the Police Force. But National Executive Council's decision not to give the job back to the Plaintiff is its prerogative and even arguable that it cannot be questioned in a court of law as to what happened or what did not happen – see s.153 (2) Constitution.

106.	But the Police Commissioner had a duty to justify his reasons for terminating the Plaintiff's employment from the Force. He cannot rely on the non-reappointment by the National Executive Council as the reason for terminating the Plaintiff and denying further or continued employment in the Police Force. There is a huge difference between employment in pursuance of one's occupation and appointment to a temporary office which guarantees no permanency. The contractual provisions alluded to earlier are quite specific. If the Plaintiff cannot be redeployed in the Police Force for cause or could not secure any other job in the National Public Service, he must be accorded the full protection of the law in that the 'the selection and appointment procedures in the Police Act' are adhered to.

107.	The First Defendant was duty-bound to adjudicate on the matter once having received the Plaintiff's written explanation or response as alluded earlier to the five serious disciplinary charges and reach a determination to end that proceeding. Once commenced, it must be completed. Leadership is all about making tough decisions, not backing away from it and leaving it to someone else to decide.

108.	But I can see and it is only a conjecture, as to what may have happened here. With constant changes taking place in the top echelon of the Police Force, and this issue might have contributed to the indecision in both the political and executive circles, before the First Defendant could finish what was started by him, he became a victim of his indecisiveness. Be that as it may, his successor did nothing to progress this outstanding matter and his successor's successor, the incumbent Commissioner also did nothing to complete this process of which he was very much familiar with but left it for the court to decide, the matter already having reached the court before he became the Commissioner.

109.	The provisions in the Contract that I alluded to earlier have been purposely built into the contract to guarantee and ensure middle and top ranked officers within the Police Force immediately below the Police Commissioner continued employment in the Police Force or the National Public Service so that they have the opportunity to reach the pinnacle of their career as policemen. That is the aspiration of all policemen holding commissioned ranks.

110.	The Plaintiff is a career Police Officer who served the Police Force for over forty years until these serious allegations that have yet to be tried have been determined. There are processes in place to deal with them and the machinery has been put in motion and that process must run its full course and not be derailed. He was elevated to Deputy Commissioner Police because of his excellent service and track record as a senior cop who carried out duties assigned to him. From Deputy Commissioner there is just one step to the Commissioner and until any finding has been made against him, he is entitled to aspire for the top post if considered or continue with his career in the Force until retirement unless he chooses to leave early. 

111.	In the circumstances therefore I uphold the Plaintiff's application for judicial review and order that the Commissioner's decision to terminate the Plaintiff in the guise of non –reappointment as Deputy Commissioner by the National Executive Council was not a valid excuse and not a good reason. The decision was also contrary to the Contract and ultra vires the Police Act 1998, prematurely made and unreasonable in view of the outstanding disciplinary issues remaining to be cleared against him. I order the First Defendant's decision to be brought into this Court and quashed forthwith.

112.	I further order that the Plaintiff be reinstated to the substantive position he occupied or held which is equivalent to an Assistant Commissioner (unattached) prior to his promotion and elevation to Deputy Commissioner Police Operations for purpose of salary and other perks and privileges that go with the position until the disciplinary charges referred to herein have been adjudicated and determined and the outcome has been conveyed to him. 

113.	I further order that the incumbent Commissioner, Toami Kulunga, shall take immediate step to adjudicate on the disciplinary matter involving the Plaintiff that has been pending his determination and the outcome of which must be relayed to the Plaintiff and the Minister for Police for tabling in the Cabinet within 14 days of this order.

114.	At the same time I further order that all interim orders made on 19 November, 2010 by Deputy Chief Justice Salika are hereby dissolved.

115.	And furthermore, I order that the Commissioner Toami Kulunga shall cause to be advertised the position of Deputy Commissioner Police Operations for fresh applications from qualified senior officers of the Force to apply including the Plaintiff if he wishes to.

116.	Thereafter the Commissioner shall forthwith submit his recommendation to the Minister and National Executive Council and the outcome or decision of the National Executive Council is relayed to all the applicants in writing before any publication thereof in the National Gazette of the successful applicant.

117.	Costs follow the event on party-party basis.

_____________________________________
Sam Bonner Lawyers: Lawyers for the Plaintiff/Applicant
Parua Lawyers: Lawyers for the 1st Defendant/Respondent
Solicitor General: Lawyers for the 2nd Defendant/Respondent