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Manoka v Ain [2018] PGNC 372; N7522 (18 October 2018)

N7522

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 519 OF 2015

BETWEEN
BILLY MANOKA
Plaintiff

AND
PAULUS AIN
First Defendant

AND
INDEPENDENT CONSUMER & COMPETITION COMMISSION APPOINTMENTS COMMITTEE comprising of the Prime Minister Hon. Peter O’Neill, MP in his capacity as the Chairman, The Opposition, Hon. Don Polye, MP (member), Minister for Treasury, Hon. Patrick Pruaitch, MP (member) and Governor of the Central Bank, Loi Bakani (member)
Second Defendants

AND
HON. ANO PALA, MP in his capacity as the ATTORNEY-GENERAL and the nominal Defendant on behalf of the HEAD OF STATE and GOVERNOR-GENERAL
Third Defendant

AND
THE INDEPENDENT STATE OF PAPUA NEW GUINEA
Fourth Defendant

Waigani: Makail, J

2017: 17^th March & 2018: 18^th October

JUDICIAL REVIEW – Application for judicial review – Review of appointment – Appointment of Commissioner – Head of Independent Consumer and Competition Commission – Re-appointment of Commissioner – Question of automatic re-appointment considered – Independent Consumer and Competition Commission Act – Sections 9, 11 & 15 (3)

Cases cited:
Nil

Counsel:
Mr. L. Henao with Mr. G. Gaudi, for Plaintiff
Mr. M. Goodwin with Mr. D. Bidar, for First Defendant
Mr. C. Kup Ogut, for Second Defendant
No appearance, for Third and Fourth Defendants

JUDGMENT

18^th October, 2018

1. MAKAIL, J: This case turns on the question of re-appointment of a Commissioner of the Independent Consumer and Competition Commission (“ICCC”) under Section 15 of the Independent Consumer and Competition Commission Act (“ICCC Act”).

2. Section 15 states:

“15. Vacancy.

(1) The office of Commissioner or Associate Commissioner becomes vacant if the person holding that office —

(a) dies; or

(b) resigns in accordance with Section 14; or

(c) attains the age of 70 years; or

(d) is not re-appointed at the end of a term of office; or

(e) is removed from office in accordance with Section 16; or

(f) is not qualified to remain a member of the Commission by virtue of Section 12; or

(g) is declared by the Court to have contravened Section 13.

(2) A vacancy in the office of Commissioner or Associate Commissioner shall be filled as soon as possible and, in any event, within 90 days of the vacancy arising.

(3) If —

(a) a vacancy in the office of Commissioner or Associate Commissioner arises as a result of the expiry of the term of office of a member of the Commission; and

(b) the vacancy is not filled within 90 days of the vacancy arising; and

(c) the member of the Commission whose term of office expired —

(i) has advised the Head of State in writing that he is willing to be re-appointed; and

(ii) is eligible for re-appointment,

then, with effect from the day next following the 90 days after the vacancy arose, the member of the Commission shall be deemed to have been re-appointed to the office of Commissioner or Associate Commissioner, as the case may be, for a further term of five years.” (Emphasis added).

3. Dr. Billy Manoka was the Commissioner until his term of office expired on 4^th May 2015. The first defendant Mr. Paulus Ain was then appointed as Commissioner on 4^th August 2015. Dr. Manoka contends that when his term of appointment ended on 4^th May 2015 he was by operation of Section 15(3) of the ICCC Act automatically re-appointed as Commissioner and the appointment of Mr. Ain was illegal, null and void.

4. To meet the requirements set out under Section 15(3), on 28^th April 2015 prior to the expiry of his term of office, he wrote to the Governor-General expressing his willingness and demonstrating his eligibility to be re-appointed as Commissioner. On 4^th May 2015, his term of office ended and no appointment was made. By 5^th May 2015 the office of Commissioner became vacant. On 24^th July 2015 he sent a follow-up letter to the Governor-General expressing his willingness and eligibility to be re-appointed as Commissioner.

5. Mr. Ain and members of the Independent Consumer and Competition Commission Appointments Committee (“Appointments Committee”) contend that Section 15(3) does not confer an automatic right of re-appointment to an incumbent Commissioner. When a Commissioner’s term of office comes to an end, the process of appointment is set in motion and a decision is made to appoint a new Commissioner by the Head of State acting on the advice of the Appointments Committee. Secondly, to say that Section 15(3) confers an automatic right of re-appointment would be contrary to public policy and principles of good governance. That is, statute should not impose but rather give discretion to the ICCC to decide who should be appointed as Commissioner based on, amongst other things, qualification and experience.

6. In my view the question of re-appointment of Commissioner under Section 15(3) is dependent on four factors:

1. Expiration in the term of office of a member of the Commission.
2. A vacancy in the office of Commissioner.
3. The member’s willingness to be re-appointed and his eligibility for re-appointment which must be communicated in writing to the Head of State.
   
4. A period of 90 days must expire following the date after the vacancy arose.
   

Expiration in the term office of a member of the Commission

7. There is no dispute that Dr. Manoka’s term of office expired on 4^th May 2015.

A vacancy in the office of Commissioner

8. There is also no dispute that there was a vacancy in the office of Commissioner. But there is contest to when the vacancy arose.
The member’s willingness to be re-appointed and his eligibility for re-appointment which must be in writing and sent to the Head of State

9. Again, there is no dispute that Dr. Manoka wrote two letters to the Governor-General expressing his willingness to be re-appointed and his eligibility for re-appointment. One was on 28^th April 2015 and a follow-up one on 24^th July 2015.

A period of 90 days must expire following the date after the vacancy arose

10. But the time when 90 days starts to run is contested. Dr. Manoka contends that 90 days expired on 2^nd August 2015. As non-one was appointed by 2^nd August, his re-appointment took effect on the next day, that is, 3^rd August 2015.

11. Mr Ain and the Appointments Committee reject this proposition. They contend that the 90 day period expired on 3^rd August 2015 because the vacancy date of 5^th May 2015 is exclusive of the count, and not inclusive, pursuant to Section 11(1) of the Interpretation Act (Chapter 2). The evidence of the appointment of Mr. Ain by the Acting Governor-General may be found in the Gazettal Notice No. G496 dated 5^th August 2015 and the appointment was effective from 4^th August 2015.

12. I accept the defendants’ submission for the reasons they have given. I find that the 90 day period ran from 6^th May and expired on 4^th August 2015. Mr. Ain’s appointment was gazetted on 5^th August and was effective from 4^th August 2015. I am satisfied that his appointment was made within 90 days under Section 15(3). It follows that Dr. Manoka’s entitlement to a re-appointment must fail.

13. The next question is whether Section 15(3) confers on a Commissioner whose terms of office has expired, an entitlement to automatic re-appointment and if so, is an automatic re-appointment against public policy and principles of good governance.

14. Section 15(3) is drafted in such a way that the onus is on the Appointments Committee to advise the Head of State to make an appointment of a Commissioner within a period of 90 days when it becomes vacant. If no appointment is made within that time, the Commissioner whose term of office has expired is re-appointed if he has advised the Head of State in writing of his willingness to be re-appointed and his eligibility for re-appointment.

15. The reason why that person must advise the Head of State of his willingness to be re-appointed is obvious but it is the eligibility for re-appointment that is unclear. There are many questions that are left unanswered by this requirement. To start off with, Dr. Manoka does not say why he has written to the Head of State to say that he was eligible for reappointment and further, why he submitted his curriculum vitae. Was his curriculum vitae submitted to get the Head of State to re-consider whether he was eligible? If so, is the Head of State required to do his own inquiries before confirming Dr. Manoka’s eligibility status? If so and if the result of the inquiries is adverse to Dr. Manoka, does the Head of State disclose it to him and invite him to respond to it? If a re-appointment is automatic, was it necessary to submit his curriculum vitae or should the Head of State sign the instrument of appointment as a matter of course and have it published in the National Gazette once the 90 day period is up? These are some of the questions which go to highlight the lack of clarity and the ambiguity in the process of re-appointment and explain why the defence has strongly rejected the notion of automatic re-appointment.

16. The defence submits that the question of eligibility of a candidate is a prerequisite for re-appointment. I accept this submission. In relation to eligibility, Section 9(1) of the ICCC Act provides that the power to appoint a member of the Commission resides in the Head of State, acting with, and in accordance with, the advice of the ICCC Appointments Committee. Section 9(2)(a) provides that:

“...........a majority of the members of the Appointments Committee shall be satisfied that the person is qualified for appointment to the Commission in accordance with section 11.”

17. Section 11 sets out the terms upon which a person qualifies for appointment, and particularly specifies that they must be eligible for appointment. Sub-sections (11)(1) and (2) in particular, set out the types of matters that go to eligibility. These include integrity, independence of mind, good reputation, and adequate knowledge and experience to perform the job. (Emphasis added).

18. I am satisfied that the power and right to determine the issue of eligibility for re-appointment under Section 15(3)(c)(ii), on the criteria set out in Section 11, rests with the discretion of the Appointments Committee under Section 9. Once satisfied the Appointments Committee advises the Head of State to make the appointment under Section 9(2)(a).

19. In this case, the defence contend that Dr. Manoka was ineligible for re-appointment because he pleaded guilty to three charges of misconduct in office in failing to furnish to the Ombudsman Commission his annual statement for the years 2008, 2009 and 2010. The offences were found proven by the Leadership Tribunal. These were essential matters considered by the Appointments Committee and the Acting Governor-General in the recommendation and final decision not to re-appoint him. The Acting Governor-General specifically made a note of this reason in his handwritten notes on the Advice to Governor-General dated 4^th August 2015.

20. In addition, the Minister for Treasury specifically referred to misconduct in office as a reason for not recommending Dr. Manoka’s re-appointment in his brief to the Prime Minister and Appointments Committee dated 12^th June 2015. A number of grounds were relied upon in the brief, some of them were, complaints about his performance and management of ICCC from ICCC staff, State owned enterprises, and the Department of Treasury, misuse of internal funds and loss of confidence of staff and management of the ICCC and the State owned enterprises under his management.

21. As to the decision of the Leadership Tribunal, Dr. Manoka says that he was eligible to hold public office because the Tribunal did not recommend his dismissal from office. As to the other allegations referred to in the brief, he says that this was the first time he was informed of them and denies them. He says that they lacked particulars and are baseless. He maintains that when he advised the Head of State of his willingness to be re-appointed and eligibility for re-appointment, there was no opposition to his request.

22. Whether Dr. Manoka should have been advised and invited to respond to the decision of the Leadership Tribunal and the allegations are matters which I have pointed out earlier at [15] which fortifies my view that there is lack of clarity and ambiguity in the re-appointment process under Section 15(3). Such is the case that I am not satisfied that it has been established on the balance of probabilities that an automatic re-appointment of a Commissioner was contemplated by Section 15(3) and that Dr. Manoka was entitled to an automatic re-appointment. This ground also fails.

23. Turning to the next issue, the legality of Mr. Ain’s appointment. Dr. Manoka contends that Mr. Ain’s appointment as Commissioner did not follow the process of appointment under the Regulatory Statutory Authorities (Appointment to Certain Officers) Act, 2004 (“RSA Act”). Amongst other things, the process starts with advertisement of the position and applications are invited, then applicants are screened and ranked in terms of relative competency level and ending with a short-list of three candidates to the ICCC Appointments Committee to select one and advise the Head of State to make the appointment.

24. However, I accept the defence submission that RSA Act does not apply in this case because the Minister did not declared the ICCC as a Regulatory Statutory Authority under Section 3 and is not listed in Schedule 1 of the RSA Act. It follows that the appointment process of a Commissioner is not governed by the RSA Act but the ICCC Act. This being the case, this ground is misconceived and is dismissed.

Conclusion

25. I am not satisfied the application for judicial review has been made out. It will, accordingly, be dismissed.

Order

26. The orders are:

1. The application for judicial review is dismissed.
2. The plaintiff shall pay the first and second defendants’ costs of the proceedings, to be taxed, if not agreed.

_______________________________________________________________
Henaos Lawyers: Lawyers for Plaintiff
O’Briens Lawyers: Lawyers for First Defendant
Ninai Lawyers: Lawyers for Second Defendant
Solicitor-General: Lawyers for Third and Fourth Defendants