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National Court of Papua New Guinea |
N6878
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
OS (JR) NO. 484 OF 2017
BETWEEN
MARY MOROLA
Plaintiff
AND
HONOURABLE PETER O’NEILL, MP,
PRIME MINISTER & CHAIRMAN OF THE NATIONAL EXECUTIVE COUNCIL
First Defendant
AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Second Defendant
AND
GEORGE BOPI
Third Defendant
Waigani: Makail, J
2017: 20th & 22nd September
JUDICIAL REVIEW – Review of decision to suspend Departmental Head – Grounds of – Breach of procedure – Error of law – Ultra vires – Breach of natural justice – Public Services (Management) Act, 2014 – Section 28 – Public Services (Management) (Employment of Departmental Heads) Regulation, 2014 – Section 29
Cases cited:
Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122
Dr Peter Kora v. The State (2013) N5230
Vela Konivaro v. Hon. Theo Zurenuoc & Ors (2014) N5771
Thaddeus Kambanei v. The NEC & Ors (2006) N3067
Counsel:
Mr. G. Konjib, for Plaintiff
Mr. H. Maliso, for First and Second Defendants
Mr. N. Tame, for Third Defendant
JUDGMENT
22nd September, 2017
1. MAKAIL, J: This is an application for judicial review of the decision of the first defendant as Chairman and the National Executive Council (“NEC”) to suspend the plaintiff as Departmental Head of the Department of Labour and Industrial Relations on disciplinary grounds pending investigation.
Suspension of Departmental Head
2. The date of the plaintiff’s suspension is not entirely clearly because she says that she was not served a notice of suspension but learnt of her suspension through the media when she read of it in two of the daily newspapers on 4th May 2017. In her place, the third defendant was appointed as Acting Departmental Head. Subsequently, a notice of suspension under the hand of the Head of State was issued on 18th May 2017 but did not reach her until the issuance of these proceedings.
Grounds of Review
3. She seeks an order in the nature of certiorari to quash the suspension and a further order for reinstatement on grounds of breach of procedure, error of law, ultra vires and breach of natural justice.
4. The first and second defendants contend that the grounds of review are vague and convoluted, making it difficult to identify precisely the grounds and issues for determination and to defend the review.
5. Their complaint about the state of the pleadings has been overcome by their well-structured and in-depth presentation of submissions canvassing the pertinent issues brought up by the grounds rendering it superfluous.
6. Suffice to say that the ground on error of law is based on the appointment of the third defendant which the plaintiff says is contrary to Section 27 of the Public Services (Management) Act, 2014 (“PSM Act”) and Section 29 of the Public Services (Management) (Employment of Departmental Heads) Regulation, 2014 (“Regulation”). That is, the third defendant was ineligible for appointment to act as Departmental Head because he is not a serving officer within the Department but someone from outside and a political associate of the Prime Minister.
7. As to the ground on ultra vires, the allegation is that the Ministerial Executive Appointments Committee (“MEAC”) being the authority to recommend the suspension of the plaintiff, lacked quorum because the portfolio Minister was absent when a decision was taken to suspend the plaintiff contrary to Section 28 (2), (3) & (4) of the PSM Act.
8. The ground on breach of natural justice is based on the allegation that the plaintiff was not given an opportunity to be heard prior to being suspended.
9. A further ground on the reasonableness or otherwise of the decision to suspend was raised but not pursued at trial, hence will not be considered.
10. The grounds on error of law and ultra vires are peripheral to the primary consideration of breach of natural justice which encompasses the ground on breach of procedure and right to be heard.
11. First, what is the procedure for suspension of a Departmental Head? Secondly, is there an expressed or implied right to be heard by the Departmental Head prior to suspension? Was the procedure followed including according the plaintiff a right to be heard prior to suspending her?
12. A determination of these issues will, dispose of the grounds on error of law and ultra vires, particularly the challenge to the appointment of the third defendant as acting Secretary of the Department.
Breach of Procedure and Right to be Heard
13. The plaintiff submits that the procedure for suspension of a Departmental Head is exclusively set out in Section 29 of the Regulation and that a right to be heard is part of this exclusive procedure which was not accorded to the plaintiff by the first and second defendants prior to suspending her. This was a fundamental breach sufficient to warrant the Court in its supervisory role to intervene and quash the suspension.
14. The first and second defendants made a forceful submission that the entire application for judicial review is misconceived because the plaintiff has grounded it on a misconceived notion that she has a right to be heard which was not accorded to her. As their counsel puts it, the judicial review was “nothing but a fishing expedition”.
15. They point out that Section 29 provides for two different procedures for suspending a Departmental Head. First is where there are serious allegations of misconduct against the Departmental Head which requires instantaneous removal. There, the portfolio Minister is required to give the Departmental Head an opportunity to be heard before taking a decision. This was not the procedure they followed to suspend the plaintiff.
16. It was the second procedure. It is set out in Section 29 (3) (f). It is invoked in cases where there are serious allegations of misconduct against the Departmental Head and it is necessary to effect the suspension prior to a decision being made by the NEC to suspend. Either the portfolio Minister or Minister for Public Service may suspend the Departmental Head and it is instantaneous and neither is required to hear from the Departmental Head prior to suspension.
17. If a decision to suspend is taken, it must be ratified by the NEC within 30 days and thereafter the procedure under Section 29
(4) dealing with investigations and laying of disciplinary charges will apply and the Departmental Head will then be given an opportunity
to respond to the disciplinary charges.
18. It was necessary or as counsel for the first and second defendants puts it “urgent” when serious allegations of misconduct
and abuse of office came to the fore and needed swift action by the Government to address what was a public embarrassment and disgrace
in the name of public interest and restore public confidence.
19. The allegations are broad and wide ranging. Firstly, influx of unqualified foreigners into the country issued with work permits without proper processes and arrangements estimated at 43,000, hence illegal. Secondly, poor performance of the Industrial Registrar and the plaintiff not taking administrative actions against the latter especially in relation to issues on illegal PNG Health Support Workers Association which the Department of Personnel Management was challenging in the Courts. Finally, there is no progress on the Sessional Workers Program which is one of the Government’s priorities. Refer to the Submission to the NEC by the Minister for Public Service dated 13th April 2017.
20. It is said that these allegations, breaches and abuse are systemic and widespread, perpetrated by officers within the Department and under the plaintiff’s watch over a period of time and were raised by other named officers within the Department for corrective actions but to no avail. Apparently these allegations found their way into the public domain and eventually on the floor of Parliament. The Government was taken to task and the first defendant and the NEC took immediate steps to address the situation in the Department.
21. The huge publicity of the allegations was compounded or perhaps, caused by the failure or inaction by the portfolio Minister to take corrective action including suspending of the plaintiff pending investigations despite two requests from the Minister for Public Service going far back as 10th June 2015: Refer to letter from Minister for Public Service Sir Puka Temu to Minister for Labour and Industrial Relations Hon. Benjamin Poponawa dated 10th June 2015.
22. The first and second defendants submit that given this background, it was within their discretion under Section 29 (3) (f) to move in and suspend the plaintiff so as to allow for investigations to commence in the public interest and to restore public confidence. On the other hand, these judicial review proceedings are a distraction and disruptive to their efforts to clear the Department of these allegations and bring the perpetrators to justice.
23. The third defendant supports these submissions and adds that the allegations are well documented. One of the officers of the Department deposed to an affidavit filed on 6th July 2017 documenting the ‘evidence’ supporting the allegations, amongst others, identifying of perpetrators including the plaintiff who are said to be from a particular ethic group in Papua New Guinea, namely, Kerema and their involvement in by-passing established procedures for screening of applications for work permits for foreigners, predominately, of Asian origins to work in Papua New Guinea, resulting in influx of foreigners.
24. Another instance of corruption is where the plaintiff used her position and awarded a fencing contract to her daughter and son in-law’s company to build a fence around the Department’s property at Kerema town.
25. The evidence is overwhelming and uncontested and he urges the Court to refuse the application for judicial review, and even if it were to be upheld, the relief sought should be refused because of the seriousness of the allegations against the plaintiff. He relies on the case of Vela Konivaro v. Hon. Theo Zurenuoc & Ors (2014) N5771 where the plaintiff, the Clerk of the National Parliament was suspended for serious allegations of misconduct in office and abuse of power and was refused an interim injunction to stop his suspension.
26. Finally, the third defendant submits that there is a risk that evidence will be concealed and investigations will be supressed by the plaintiff if she were to continue to work. Already, those officers who reported these allegations have been suspended after she resumed duty following the grant of an interim injunction against her suspension earlier this year. For these reasons, it is necessary that he be allowed to act as Departmental Head pending the investigations.
Procedure for Suspension of Departmental Head
27. The defendants’ submissions are impressive and persuasive. But in judicial review proceedings, the primary role of the
Court is not concerned with the decision but with the decision-making process: Kekedo v. Burns Philip (PNG) Ltd [1988-89] PNGLR 122.
28. So what is the procedure and the answer is the procedure for suspension of a Departmental Head has been reviewed by the legislature and is currently set out in the Regulation. Relevantly, Section 29 provides:
“29. Suspension of Departmental Heads on disciplinary grounds and disciplinary procedures in contracts.
(1) A portfolio Minister may suspend a departmental head from office on disciplinary grounds, only in accordance with a recommendation of the MEAC, ensuring that the provisions of these Regulations and the departmental head's contract are complied with.
(2) A suspension may only be effected in accordance with the criteria and the procedures contained within a contract of employment approved by the National Executive Council and entered into between the Head of State and the departmental head.
(3) The grounds or the criteria and the procedure for suspension prescribed by a contract of employment shall include the following provisions:
(a) where allegations of serious misconduct have been made against a departmental head by his or her portfolio Minister dependent upon the circumstances and the nature of the allegations, which may require instantaneous removal from office, the portfolio Minister shall give to the departmental head in writing an opportunity to respond to the allegations within a seven day period; and
(b) on receipt of the departmental head's response to the allegations the portfolio Minister shall provide a written report which contains evidence to support any allegations, or evidence that leads to a reasonable belief that the allegations are true to the Minister for Public Service as the Chairman of the MEAC; and
(c) the Minister for Public Service shall on the advice of the Secretary Department of Personnel Management determine whether or not the evidence supports suspension of the departmental head on disciplinary grounds, if not the Minister shall advise the portfolio Minister accordingly; and
(d) where the Minister for Public Service determines there are grounds to support the suspension of the departmental head the Minister shall inform the portfolio Minister and the MEAC accordingly; and
(e) the Minister as Chairman of the MEAC shall provide a written report to the NEC to effect suspension, and by delegation of the National Executive Council under Section 148 of the Constitution, the portfolio Minister or the Minister for Public Service shall effect suspension from office on full pay to enable investigations to be conducted, and or disciplinary charges to be laid; and
(f) in the event that it is necessary to effect the suspension prior to a decision being made by the NEC, suspension action taken by a portfolio Minister or the Minister for Public Service shall be ratified by the National Executive Council no later than 30 days following the action, and the NEC shall determine the time required in which to conclude investigations and/or disciplinary proceedings against the departmental head.
(4) The disciplinary process shall be stated in the contract terms and conditions and shall contain the following details:
(a) in effecting a decision to suspend a departmental head, the portfolio Minister (or Minister for Public Service as delegated by the NEC) may either lay disciplinary charges coincident with the suspensory action, or notify the departmental head that investigations will be conducted in order to lay disciplinary charges at a later date; and
(b) investigations shall be conducted initially by an independent committee under the chairmanship of the Secretary for the Department of Personnel Management, and the recommendations of the Committee shall be made within the time limit as determined by the NEC; and
(c) the Independent Investigation Committee shall comprise of one representative preferably at deputy secretary level from the Central Agency departments as follows:
(i) Department of Personnel Management; and
(ii) Department of Prime Minister & NEC; and
(iii) Department of Justice & Attorney General; and
(iv) Department of Finance; and
(d) in the event that the investigations confirm the departmental head has a case to answer, then the portfolio Minister shall lay charges against the departmental head in a prescribed manner prepared by the Secretary; and
(e) the departmental head shall respond to the Portfolio Minister within a fourteen calendar day period, stating whether or not he or she admits or denies the charges, and any mitigating circumstances surrounding the allegations; and
(f) a legal opinion shall be obtained by the Chairman MEAC as to the culpability of the departmental head and shall make a recommendation to the National Executive Council on appropriate disciplinary action such as —
(i) re-instatement to office as departmental head if considered substantially innocent of misconduct in office; or
(ii) termination of appointment in the following manner:
(A) in the interest of the State, if considered guilty of misconduct to a degree not warranting termination for cause, resulting in either —
(B) for cause if considered guilty of substantial misconduct with either —
1. Payment of service related benefits; or
2. With forfeiture of service related benefits; and
(g) throughout disciplinary proceedings, the Secretary for the Department of Personnel Management shall be responsible for advising the Chairman of the MEAC on the procedures and interpretation of departmental head contracts under these Regulations.
(5) A departmental head may take paid leave of absence from Office where the departmental head is —
(a) charged by the Police for a criminal offence which impacts upon his or her work performance; or
(b) cited for contempt of court for any reason; or
(c) referred by the Public Prosecutor under the Organic Law to a Leadership Tribunal, prior to the Tribunal sitting to hear the case; and for no other reason, the MEAC shall determine whether or not the departmental head must take paid leave of absence from office (not to count against accrued leave entitlements), in the public interest and the departmental head shall comply with such requirement, pending the outcome of the referred matter, or until dealt with under the disciplinary provisions of the contract.” (Emphasis added).
29. It should be noted here that the word ‘and’ is being emphasised to make the point that Section 29 (3) (a) to (f) (supra) is expressed conjunctively and not in the alternative. The distinction must be made because it is crucial to the determination of whether the procedure proposed by the plaintiff should have been adopted by the first and second defendants to suspend her or the one proposed by the defendants.
30. It is quite clear given that Section 29 (3) (a) to (f) is expressed conjunctively the defendants overlooked it and proceeded on the misguided notion that there is an alternative procedure to suspend a Departmental Head and adopted it to suspend the plaintiff.
31. Reading Section 29 (3) (a) to (f) conjunctively, the procedure for suspension of a Departmental Head, can be shortly thus, stated:
32. Even if it is necessary or urgent to suspend the Departmental Head, he or she must be accorded a right to be heard or respond to the allegations before the portfolio Minister or Minister for Public Service may suspend him or her. This is envisaged by Section 29 (3) (a) to (e).
33. This right is discharged at the beginning of the process when the portfolio Minister gives that opportunity to the Departmental Head and he or she responses. By Section 29 (3) (b), the response would form part of a written report to be sent to the Minister for Public Service. By Section 29 (3) (b), on consideration of the report and evidence supporting the allegations, if there are grounds to support the suspension, the Minister for Public Service shall advise the portfolio Minister and the MEAC accordingly.
34. By Section 29 (3) (e) he will then provide a written report to the NEC to suspend the Departmental Head. It is at this point
that if it is necessary or urgent, either the portfolio Minister or Minister for Public Service may suspend the Departmental Head.
Thereafter, by Section 29 (3) (f), either is required to get the NEC to ratify the suspension within 30 days.
35. This is the latest procedure for suspension. This is what the defendants should have done. This procedure is a result of the
repealing of the Public Services (Management) Act, 1995 where under Section 31D of that Act, the body responsible for recommending suspension is the Public Service Commission (“PSC”). Interestingly, that provision did not state if the PSC is required to give an opportunity to the Departmental Head to response
to the allegations: see Dr Peter Kora v. The State (2013) N5230.
36. It is now under the current law (PSM Act, Section 28 and Regulation, Section 29). It is a significant development and change in the procedure for suspension of Departmental Heads. It is an acknowledgement of the importance of suspension as part of the disciplinary process, to be a stand-alone procedure where the principles of natural justice and the right to be heard is mandatory and the decision-making authority is bound to accord to the Departmental Head or observe in deciding the question of suspension. Thus, failure to observe is fatal to the decision to suspend.
37. On the uncontested evidence of the plaintiff it is the finding of the Court that first, the portfolio Minister did not give her an opportunity in writing to respond to the allegations.
38. Secondly, and consequently, she did not respond to the allegations. She found out about the allegations and suspension when she read about them in the daily newspapers.
39. Thirdly, the portfolio Minister did not report to the Minister for Public Service and present evidence in support of the suspension.
40. Fourthly, the Secretary for Department of Personal Management did advise the Minster for Public Service to suspend the plaintiff. The latter did not advise the portfolio Minister to suspend the plaintiff. He only advised the MEAC to suspend her.
41. Fifthly, the Minister for Public Service as Chairman of MEAC provided a report to the NEC to effect the plaintiff’s suspension.
42. Finally, the portfolio Minister did not suspend the plaintiff. Apparently, it was the NEC on the recommendation of the Minister for Public Service.
43. From these findings, it is concluded that the first and second defendants failed to comply with the process of suspension. It must then be the case that the decision to suspend the plaintiff was made in breach of the procedure for suspension under Section 29 (a) to (f) of the Regulation.
44. Significantly, the breach is grave because the plaintiff was denied a right to be heard in relation to the serious allegations against her. She was given no chance at all to respond to the allegations. As the defendants submitted, the allegations are broad and wide ranging depicting a systemic and widespread breaches and abuse of power by the plaintiff and her associates/officers. A thorough investigation which may run into months and even years, money and expertise may be required not only to lay disciplinary charges, but also criminal charges against her and her associates/officers.
45. But these allegations were brought up without due regard to the procedures for suspension, investigation and laying of disciplinary charges against the plaintiff as a Departmental Head under Section 29 of the Regulation. Above all, she was not given the opportunity to response to the allegations. And it may be that they are serious allegations, but they remain allegations until proven and it is not for this Court in these proceedings to find against the plaintiff as submitted by the third defendant. That is a matter for another time.
46. Giving the plaintiff an opportunity to response or perhaps, explain would have avoided the suspension and the allegations from receiving much publicity and ending up on the floor of Parliament. Then having the first defendant and the NEC to rush to arrest the situation and ending up adopting a wrong procedure to suspend the plaintiff.
47. The situation could have been handled better had the first defendant intervened and replaced the portfolio Minister if the allegation that he failed or took no action against the plaintiff despite repeated requests from the Minister for Public Service was the case then. Better still, the Minister for Public Service should have given the plaintiff the opportunity to respond to the allegations instead of by-passing her and going directly to the NEC.
Conclusion
48. The manner in which the suspension of the plaintiff took place and the challenge to its legality can hardly be described as a distraction or disruption to the investigation by the defendants nor is it a “fishing expedition”.
49. As the plaintiff is seeking final relief by way of judicial review, this case is distinguishable from Vela Konivaro v. Hon. Theo Zurenuoc & Ors (supra) where interim relief by way of injunction was sought to stop the suspension of the plaintiff and was refused by the Court.
Order
50. A grant of final relief is discretionary. The discretion is exercised by taking into account all the different considerations and weighing them up. In Thaddeus Kambanei v. The NEC & Ors (2006) N3067, the plaintiff was suspended for serious allegations of financial mismanagement and abuse of office of a key Government Department. He sought judicial review and sought interim injunction to stop his suspension. The Court refused the interim injunction on the grounds that serious allegations had been made against the plaintiff and were not denied. A Court of equity and good conscience would not grant such relief where a party has come to Court with unclean hands.
51. But each case must be decided on its own merits. That case can be distinguished because that was an interim application. Here, parties have gone past that stage even though the plaintiff did obtain an interim injunction to stop her suspension. This is the substantive matter where the Court is deciding what sort of final relief should be granted.
52. The breach at the start of the suspension process is serious, hence flawed and illegal. It outweighs the other considerations. Any investigation or further dealings in relation to the allegations must be stopped. It is inevitable that quashing of the suspension and reinstatement of the plaintiff must be ordered.
53. Damages would not be an adequate remedy because enough harm has been done to the plaintiff and cannot continue because of a serious blunder created by the defendants in adopting a flawed procedure. The acting appointment of the third defendant will cease upon reinstatement of the plaintiff.
54. Finally, it is not necessary to consider the other grounds of review.
55. Costs follow the event.
________________________________________________________________
Konjip & Associates Lawyers: Lawyers for Plaintiff
Twivey Lawyers: Lawyers for First & Second Defendants
N Tame Lawyers: Lawyers for Third Defendant Defendant
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URL: http://www.paclii.org/pg/cases/PGNC/2017/238.html