N6840

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 453 OF 2017
BETWEEN:
GARI BAKI – POLICE COMMISSIONER OF THE ROYAL PAPUA NEW GUINEA CONSTABULARY
Plaintiff

AND:
SAM KOIM as CHAIRMAN OF THE SWEEP TEAM, CHIEF INSPECTOR TIMOTHY GITUA, SERGEANT AARON ELIZA, SERGEANT PIUS PENG & SENIOR CONSTABLE BASI SOPATA comprising the INVESTIGATION TASK FORCE SWEEP (SWEEP TEAM)
First Defendant

AND:
NATIONAL EXECUTIVE COUNCIL
Second Defendant

AND:
INDEPENDENT STATE OF PAPUA NEW GUINEA
Third Defendant
 
Waigani: Nablu, J
2017:  18 July
               1 August

JUDICIAL REVIEW – Application for leave – Decision of the National Executive Council – delay of over five (5) years – inordinate delay – Order 16 Rule 4, National Court Rules – grant of leave would cause substantial hardship – substantial prejudice to the rights and interests of others – would not be good for administration – leave refused.  
Cases cited:

Alois Kingsley Golu v. National Executive Council (2011) N4425 
Avia Aihi v. The State [1981] PNGLR 81
Paul Tiensten v. Sam Koim (2011) N4420
Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959
SCR NO. 4 OF 1980; Re: Petition of Michael T Somare [1981] PNGLR 265 
SCR NO. 1 OF 1982; Re: Philip Bouraga [1982] PNGLR 178 
SC1388 Re: Powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC 1388 

Counsel:

Mr S. Poga, for the Plaintiff
Ms T. Twivey, for the Second and Third Defendant

1st August, 2017 

1.	NABLU, J:	 The Police Commissioner seeks leave to review the decision of the National Executive Council (NEC) made on 12 August 2011. The decision referred to as NG 03/2011 established an “Investigation Team” to investigate allegations of corruption at the National Planning & Monitoring Department. The investigation would also be extended to cover other State departments and agencies.

2.	The plaintiff also seeks leave to review the decision of the National Executive Council dated 27 January 2012 and referred to as Decision No. 11/2012 to establish a permanent office for the Investigative Task Force Sweep (Sweep Team) to continue to carry out criminal investigations, lay charges and prosecute offences independently without being accountable to the office of the Commissioner of Police.
3.	The plaintiff’s application was made pursuant to Order 16 Rule 3 of National Court Rules and the Amended Originating Summons filed on 19th May 2017.
4.	If leave is granted, the plaintiff seeks various declaratory orders to declare the decisions unconstitutional, orders to quash the decisions and costs. The plaintiff also seeks permanent injunctions to restrain the members of the Task Force from conducting further inquiry into the matters.
5.	The State was represented by Ms Twivey. She neither consented nor opposed the application for leave. She submitted that the plaintiff had standing to bring this application and therefore, they conceded that they have an arguable case. Ms Twivey argued that these NEC decisions could be reviewed by the Court and that the decisions were justiciable. She submitted further that the power of the Court to review the NEC decisions depended on the subject matter. The Court had granted leave to review the decision of the NEC to remove the Task Force Sweep so leave can be granted to review the decisions to establish the Task Force.  She also submitted that in this case, there were exceptional reasons why the Court should exercise its discretion to grant leave. The main argument in this case, is that there must be careful consideration of the constitutional powers and functions of the Commissioner of Police. 
6.	Notwithstanding the concessions by the State. The onus is on the applicant to establish the grounds for leave in order for the Court to exercise its discretion to grant leave and invoke the Court’s supervisory powers. The decision is annexed to the Affidavit of Gari Baki (filed on 8 May 2017). It is necessary for me to set out the decisions below:

PAPUA NEW GUINEA GOVERNMENT
NATIONAL EXECUTIVE COUNCIL

Decision No. NG 03/2011				Special Meeting No: NG 02/2011

Subject:	INVESTIGATION INTO THE ALLEGATIONS OF 					CORRUPTION AT THE NATIONAL PLANNING 					DEPARTMENT

On 11th August 2011, Council;
1.	noted the content of Policy Submission No. NG 04/2011,

2.	approved the establishment of the investigation into allegations of corruption at the Department of National Planning & Monitoring would also extend to other Departments or State agencies insofar as the Development Budget from 2009 to 2011 was appropriated, and among others the K125 million for the Kokopo Community Projects and the K10 million which are outside of the Development Budget;

3.	appointed the named respective State agencies as listed in the submission which is attached as annexure “A”, to furnish an officer(s) as identified by the Minister for National Planning and the Attorney General;

4.	directed the Department of Treasury through the Minister for Treasury & Finance to allocate the sum of K6 million to be immediately made available for the investigation to commence;

5.	approved the draft Terms of Reference as stated in the submission for the Investigation, attached as (Annex “B”) amended;

6.	approved the Team Members to be paid special contract allowances during the term of their engagement;

7.	directed Department of Personnel Management through the Minister for Public Service to immediately organise short term special contracts of Team Members for immediate execution;

8.	directed the Department of National Planning through the Minister for National Planning, in consultation with the Department of Personnel Management to immediately suspend public servants who are implicated in the Investigation; and 

9.	directed Attorney General and Minister for Justice through the Ministerial Committee on Law & Justice Sector to consult with the Chief Justice to appoint a Special Judge to hear the above cases as a matter of priority.

I certify the above to be a correct record of the 		      (signed)
Decisions reached by the National Executive Council	PETER O’NEIL
								       Chairman

(signed)
MANLY UA  Secretary, NEC

Date 12th AUGUST 2011

Distribution:	PRIME MINISTER/DEPUTY PRIME MINISTER/ATTORNEY GENERAL & MINISTER FOR JUSTICE/MINISTER FOR NATIONAL PLANNING & MONITORING/JUSTICE/NATIONAL PLANNING/PERSONNEL MANAGEMENT/PMNEC/TREASURY/FINANCE/

ANNEX “A”

INVESTIGATION TEAM

The Investigation Team comprise of the following persons/authorities.
1.	Chairman – Mr Sam Koim, a Principle Legal Officer – Office of the Solicitor General, Department of Justice;

2.	Deputy Chairman – Superintendent Sylvester Kalaut, PPC of East New Britain;

3.	Chief Inspector – Timothy Gitua, Director of Frauds and Anti-Corruption Squad and six Investigators – 1x Forensic Expert, 1x Police Prosecutor, 2x Financial Intelligence Unit Officers and 6 Mobile Squads;

4.	A lawyer with the POCA Division at the Office of the Public Prosecutor;

5.	An Officer with the Department of Treasury;

6.	An Accountant from the Office of the Auditor General;

7.	An Officer from the Tax Compliance Division of the Internal Revenue Commission;

8.	An Officer of the Department of Provincial and Local-Level Government Affairs;

9.	A Media Officer.

ANNEX “B”
TERMS OF REFERENCE

The following are the Terms of Reference (TOR) for the Team:
1.	Inquire into and ascertain:
i.	that Public Funds (Development Budget Component) administered by the Department of National Planning & Monitoring of the 2009, 2010 & 2011 Budgets were appropriated in compliance with their respective Appropriation Acts;
ii.	that those who applied for and received the funds were in accordance with the Appropriation Acts;
iii.	that the project submissions were consistent with the Appropriation Act and passed the screening criteria used by the Department of National Planning and Monitoring without undue influence;
iv.	that the proponents of the project did not place themselves in a conflict of interest position;
v.	If those funds were diverted, who orchestrated the diversion and who benefited from such diversion;
vi.	If the funds were paid outside of the Appropriation Act, who applied for and benefited from the funds;
vii.	Whether the funds were sufficiently used for the purpose to which it was applied and granted;
viii.	Whether certain laws including the Public Finance (Management) Act, Public Services (Management) Act and the Criminal Code Act, etc were breached;
ix.	Who orchestrated the breach of those law;
x.	Whether the person(s) implicated were public servants and if so, with their conducts also amounted to conflict of interests.
2.	Prosecute the persons criminally implicated during the inquiry under the laws of Papua New Guinea including but not limited to the Criminal Code Act and Proceeds of Crime Act 2005;
3.	Take all steps under the Proceeds of Crimes Act 2005 and the Mutual Assistance in Criminal Matters Act 2005 to recoup all proceeds of all funds found to have been diverted and misappropriated, such proceeds as are defined by Section 10 of the Proceeds of Crime Act;
4.	Refer the person(s) the Ombudsman Commission if he/she is a leader covered by the Leadership Code;
5.	Recommend for immediate termination of employment if he or she is a public servant who is implicated in the investigations;
6.	Furnish to the NEC within 3 months from the date of commencement, a report on the investigations conducted, persons implicated, prosecutions done, funds recouped, referrals made to the Ombudsman Commission and further actions to be taken if need be;
7.	Recommend to the NEC through the Minister for National Planning and Attorney General, possible legislative changes to patch up loopholes discovered during the investigations; and
8.	The Investigation Team shall complete its work within 3 months from the date of commencement, and shall seek extension thereafter if need be.

PAPUA NEW GUINEA GOVERNMENT
NATIONAL EXECUTIVE COUNCIL

Decision No: NG 11/2012				Meeting No: NG 05/2012

Subject:	ESTABLISHMENT OF A PERMANENT OFFICE FOR 			INVESTIGATION TASK-FORCE SWEEP

On 27th January 2012, Council;

1.	noted the contents of Policy Paper No. NG 15/2012,

2.	approved the establishment of a Permanent office of Investigation Task Force Sweep;

3.	approved the concept of the NACA/ITFS structure in principle and directed the Secretary of the Department of Personnel Management to review and approve the structure forthwith for implementation;

4.	approved the appointment of Messers Sam Koim, Andrew Felton, John Toguata and an officer from the Legal Policy Division of Department of Justice and Attorney General, to work in consultation with the Chief Secretary to Government and Secretary for Department of Personal Management in the formulation of a policy framework for the permanent office for ITFS;

5.	approved the funding of K1 million to meet all costs related to the setting up of the Permanent office; and

6.	directed that the Minister for Finance and Treasury make the K1 million available to the ITFS as soon as practicable.

I certify the above to be a correct record of the 		      (signed)
Decisions reached by the National Executive Council	PETER O’NEIL
								       Chairman

           ( signed)
CHRIS HAIVETA, CMG  Acting Secretary, NEC

Date: 27 January 2012

Distribution:	NEC MEMBERS
		PRIME MINISTER/DEPUTY PRIME MINISTER/MINISTER 			FOR NATIONAL PLANNING/ATTORNEY GENERAL & 			MINISTER FOR JUSTICE/MINISTER FOR FINANCE & 			TREASURY/

		DEPARTMENTAL HEADS & STATUTORY BODIES
	NATIONALPLANNING/JUSTICE/PM&NEC/TREASURY/
	COMMMISSIONER OF POLICE/CIS COMMISSIONER/
	CHIEF JUSTICE OF PNG/

7.	It is not disputed that the decisions were made by the National Executive Council on 12 August 2011 and 27 January 2012.
8.	Normally, the first issue to be determined is whether the plaintiff has sufficient interest as required by Order 16 Rule 3(5) of the National Court Rules. Leave can only be granted where the applicant establishes that they have sufficient interest. However, in this case, I am of the view that the pertinent issue to be determined at the outset is the question of delay in bringing this application for leave to apply for judicial review. I propose to deal with this issue first. 
9.	Delay is a relevant consideration when considering an application for leave to review. The decisions were made in 2011 and 2012. The delay is about five (5) years and eleven (11) months for the first decision and five (5) years and five (5) months for the second decision.

10.	It is clear that there is inordinate delay. Five (5) years is a very long time. The next question is; is there a reasonable explanation for the delay?

11.	Mr Poga of counsel for the plaintiff argued that the delay should be calculated from the date the plaintiff was duly appointed to the position of Commissioner of Police. Therefore, the delay was about two (2) years from the date of his appointment on 8 May 2015.

12.	Mr Poga submitted further that after the decisions were made, there were a number of changes to the office of the Commissioner of Police. This contributed to the delay. Furthermore, this meant that since taking up the post, the plaintiff could not attend to this application for leave. 

13.	Counsel also submitted that a number of other factors also contributed to the delay including instances where, several court proceedings were instigated against the Police including the plaintiff personally. The plaintiff stated that he spent considerable time attending to several contempt charges, interim injunctions and stay orders which impeded his efforts to run the affairs of the Police Force.

14.	Following his appointment, he was then occupied with several large scale security operations for national events in PNG, such as the 2015 Pacific Games, the National Elections 2017 and the APEC 2018 meeting (see paragraphs 5-16 of the Affidavit of Gari Baki filed on 14 June 2017).

15.	I am of the view that there is undue delay and there is not reasonable explanation for the delay. I am of the view that the reason given by the plaintiff that the time to seek leave to review runs from the date of his appointment is misconceived and without merit.

16.	It is trite law that the time starts running when the decision is made. In this case, the time for the plaintiff to seek redress commenced on 12 August 2011 and 27 January 2012 when the NEC decisions were made.
17.	In some cases, the Court has exercised its discretion to grant leave where there are exceptional reasons, like in cases where the applicant was not aware of the decision until sometime had passed.

18.	In this case, there are no exceptional reasons that warrant the Court to exercise its discretion to overlook the delay. The plaintiff seeks orders in the nature of certiorari as a substantive relief for the judicial review application. Order 16 Rule 3(8) of the National Court Rules is clear that the four (4) months time limit expired in December 2011 and June 2012. On the evidence before me, I am satisfied that the relevant period stipulated in National Court Rules has expired. The purpose of Order 16 Rule 3(8) of the National Court Rules is to ensure that persons who are aggrieved by an administrative decision promptly seek redress. 

19.	I do accept that Order 16 Rule 3(8) of the National Court Rules does not fetter the Court’s discretion under Section 155(4) of the Constitution and the National and Supreme Court have exercised their discretion where there are exceptional reasons (see Avia Aihi v. The State [1981] PNGLR 81). This power is only invoked to protect a primary right. I am of the view that the Commissioner of Police does not in this particular circumstances have a primary right capable of been protected pursuant to Section 155(4) of the Constitution. 

20.	In the present case, I also find no exceptional reasons why the delay should be overlooked. The explanation for the delay by the plaintiff in not bringing this application for leave earlier is unreasonable. The plaintiff is the Commissioner of Police; he has always had the opportunity to instruct his lawyers in the Police Legal Service to institute these proceedings. Furthermore, the fact that he was involved in a number of cases is not in my view an exceptional reason to invoke this Court’s powers of review.  Accordingly, I am not persuaded by the explanation given for the delay. 

21.	Furthermore, I am of the view that if leave is granted “it would be likely to cause substantial hardship to, or prejudice the rights of, any person and be detrimental to good administration” (Order 16 Rule 3(1)(a) of the National Court Rules).

22.	Mr Poga of counsel for the plaintiff, in his submissions argued that regardless of the recent National Court ruling that affirmed the NEC decision to disband the Task Force Sweep, their actions were still alive, and he mentioned  prosecution of Paul Tiensten and other few notable ones. 
23.	I am of the view that since the time the decisions were made, numerous investigations were conducted which resulted in prosecutions and even incarceration of the offenders. To go back now and review a five (5) year old decision would in my view cause substantial hardship and prejudice the rights and interests of persons that were under investigation or who were dealt with as a consequence of these decisions. In addition to that, the members of the Task Force who undertook the investigations under a valid executive decision at the time would be prejudiced because they may be subject of legal proceedings for carrying out unlawful investigations. Clearly, to review the NEC decisions now would not be good for administration of those Government and State agencies involved, including the Police since events have now  overtaken the application for leave before this Court. 

24.	Even if I am wrong, the plaintiff does not have sufficient interest. The plaintiff also does not have an arguable case and there are no serious legal issues to be tried.
25.	Mr Poga of counsel for the plaintiff submitted that this is the third application to challenge the same NEC decision. Leave was refused in the other two earlier applications, on the ground that the NEC decision was an executive policy decision which was non-justiciable by virtue of Section 153 of the Constitution. Counsel referred the Court to the cases of Paul Tiensten v. Sam Koim (2011) N4420 and Alois Kingsley Golu v. National Executive Council (2011) N4425. 
26.	Mr Poga submitted that this Court was not bound by these earlier decisions. The main distinguishing factor between these cases and the present case is that, the applicant’s primary argument is that the NEC does not have the power to establish an investigative body outside of the Police Force to conduct criminal investigations. Furthermore, the NEC does not have the power to direct the Police Commissioner on operational matters such as the power to investigate and prosecute. The Commissioner of Police is vested with the power to direct and control the Police Force pursuant to Sections 197 and 198 of the Constitution.
27.	Whilst I do accept that the plaintiff is the duly appointed Commissioner of Police and therefore, he is responsible for the direction and control of the Police Force, I am not convinced that he has sufficient interest to pursue this application for leave to seek judicial review. 
28.	Sufficient interest is determined by establishing a number of factors. One such approach is to examine the interest or rights of the complainant that are affected by the decision. 	Order 16 Rule 3(5) of the National Court Rules (NCR) provides the test for determining locus standi. The Court shall not grant leave for judicial review unless it considers that an applicant has sufficient interest in the matter the subject of the judicial review application.
29.	If a plaintiff cannot show that he has sufficient interest than the Court cannot invoke its’ powers of judicial review.

30.	Sufficient interest is essentially a mixed question of fact and law, a matter of fact and the degree of the relationship between the plaintiff and the subject matter of his complaint. In the case of Steamships Trading Ltd v. Garamut Enterprises Ltd (2000) N1959, His Honour Justice Sheehan stated that:

“Generally a Plaintiff will have standing if he can show that he has a reasonably arguable claim that by an invalid exercise of statutory power, some private rights in law has been affected or that he has suffered some prejudice. But the right to invoke the Court’s supervisory jurisdiction is not restricted to protection of personal right only. It can extend to more public issues.”

31.	The determination of standing is only possible with an examination of the complaint itself.

32.	In the landmark case of SCR NO. 4 of 1980; Re: Petition of Michael T Somare [1981] PNGLR 265, the Supreme Court recognised the right of a citizen to challenge the legality of or constitutionality of legislation.

33.	In this jurisdiction the Court has generously interpreted the term “sufficient interest”.

34.	The decision was an NEC decision. The plaintiff is the Commissioner of Police. Whilst the Task Force Sweep is comprised of some senior Policemen, other State Departments and Agencies were also a part of the Task Force like the Auditor General and the Internal Revenue Commission. The plaintiff’s main argument is the constitutionality of the decision. I am unable to ascertain the rights or interests of the Commissioner which have been breached or adversely affected. Therefore, I am of the view that the plaintiff does not have sufficient interest to challenge the decision.
35.	Mr Poga of counsel submitted that I am not bound to follow the decisions in Tiensten v Sam Koim (supra) and Golu v. NEC, because of the fact that they are National Court decisions. I have read the judgements by the learned Judges and find that they are in regard to the same NEC decisions which are subject of this application for leave to review. Therefore, I am fortified in my view that NEC decisions in regard to general policy are non-justiciable as stipulated in Section 153 of the Constitution.
36.	I adopt the views by His Honour Justice Gavara-Nanu as the correct expression of the law at page 11-12 of the judgment in Golu v. NEC (supra) that: 
“ Decisions by the first defendant, the National Executive Council (NEC) are not immune from judicial review. Issac Lupari v. Sir Michael Somare (2008) N3476, Robmos Limited v. Frederick M. Punangi (2008) N3372 and Peter Ipatas v. Sir Mekere Morauta (2001) N2048. If NEC acts outside the powers given to it either by the Constitution or a statute then Court orders may lie against it: Burns Philip (PNG) Ltd v. The Independence State Papua New Guinea (1989) N769. Judicial review would therefore lie against NEC where it has exceeded its powers (acting ultra vires), abused its powers, or made a decision which no reasonable authority could have made: The State v. Philip Kapal [1987] PNGLR 417. However, in my opinion the Court should be loath to review decisions of the NEC because it is not just an ordinary decision making body. It is a body made up of Ministers with the Prime Minister as its Chairman and is established by the Constitution under s. 149. It is at the apex of the executive arm of the Government (s. 141(2)), thus making it a special decision making body. It has wide and inherent powers to make and formulate public policies. The Ministers who make up the NEC are appointed by Prime Minister, and each Minister is responsible to the NEC for the functions of his portfolio and NEC is in turn responsible to the people: S.C.R No.1 of 1982; Re Bouraga [1982] PNGLR 178. Such being the special and unique character of the NEC, unless the NEC clearly acts contrary to the provisions of the Constitution or the Organic Law, or a statute, it would in my opinion be improper for this Court to imply that it must go about its deliberations in a particular way which would always be subject to the scrutiny and supervision of this Court: Burns Philip (PNG) Ltd v. The Independence State of Papua New Guinea (supra). Thus when it comes to applications for leave to apply for the review of NEC decisions, this Court should be loath in granting leave, subject of course to the proper exercise of Court’s judicial discretion.”

37.	I would also add that Judicial Review is the Court’s inherent supervisory jurisdiction to review “administrative decisions”. The decision of the NEC in regard to policy matters are “executive decisions”. Therefore the Court does not have the power to review such decisions unless there are exceptional circumstances to do so. Each case is determined on its own merits. However, in this case, the two National Court decisions have already determined that the same decision of the NEC is non-justiciable. I agree with those views expressed by the learned Judges.
38.	Furthermore, the plaintiff’s Statement in Support in particular the substantive relief sought include declarations that the decision is unconstitutional, null and void. Section 18 of the Constitution is clear that the Supreme Court has original jurisdiction in regard to any questions relating to the interpretation or application of a Constitutional Law. This Court does not have the power to review the question of the interpretation of the Commissioner of Police’s constitutional power or the justiciability of the NEC decisions. Such powers lie with the Supreme Court. In any event, the Constitutional questions in regard to the powers of the Police Commissioner have already been the subject of judicial consideration (see SCR No.1 of 1982; Re Philip Bouraga (1982) PNGLR 178 and Re: Powers, functions, duties and responsibilities of the Commissioner of Police (2014) SC 1388). Mr Poga did however, concede to his fact. 
39.	For the foregoing reasons and in the exercise of my discretion the plaintiff’s application for leave is refused and is dismissed and each party is to bear their own costs.
Orders accordingly, 

Police Legal Service Unit: Lawyers for the Plaintiff 
Twivey Lawyers: Lawyers for the Second & Third Defendants