N8630
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

OS (JR) NO. 810 OF 2018

BETWEEN:
COLONEL OTTO A. PANDUM
Plaintiff

AND:
NATIONAL EXECUTIVE COUNCIL
First Defendant

AND:
MINISTERIAL EXECUTIVE APPOINTMENT COMMITTEE
Second Defendant

AND:
HON. ELIAS KAVAPORE, MP - MINISTER FOR PUBLIC SERVICE
Third Defendant

AND:
TAIAS SANSAN SECRETARY FOR DEPARTMENT OF PERSONAL MANAGEMENT
Fourth Defendant

AND:
GRACE SO-ON SECRETARY OF THE DEPARTMENT OF NATIONAL EXECUTIVE COUNCIL
Fifth Defendant

AND:
THE INDEPENDENT STATE OF PAPUA NEW GUINEA.
Sixth Defendant

Waigani: Miviri J
2020: 15th September, 4th November

PRACTICE & PROCEDURE – Judicial Review & appeals – Substantive Notice of motion –Order 16 Rule 1 NCR – Judicial Review – NEC Decision appointing – Director General NIO –Decision rescinding appointment Procedure by Public Services Management Act (Employment of Department heads) Regulation 2014–Section 8 Director General appointment of – National Intelligence Organization Act 1984 – Security of State – No reasons to justify – Declaration & Certiorari – Discretionary – No Error of Law – No breach of natural Justice – Decision not unreasonable – material relied insufficient – balance not discharged – Judicial Review denied – cost follow event.

Cases Cited:
Kawi v Tetega [2006] PGNC 79; N3100 
Aeava v National Executive Council [2001] PGNC 62; N2136 
Kekedo v Burns Philip (PNG) Ltd [1988] PNGLR 122 
Lee & Song Timber (PNG) Co Ltd v Burua, Chairman East New Britain Provincial Forest Management Committee [2003] PGNC 100; N2404 
Sausau v PNG Harbours Board [2007] PGNC 106; N3255
Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797
Lupari v Somare [2008] PGNC 121; N3476
Counsel:

B. Lai, for Applicant
H. White, for Respondents
					RULING 
 04th November, 2020
1.	MIVIRI, J: This is the ruling on the plaintiff’s substantive notice of motion of the 13th December 2018 seeking declaration that the decision of the First Defendant of the 16th August 2018 and later dated the 30th August 2018 decision number 243/2018 special meeting 20/2018 was unlawful, illegal null and void ab initio for breaching section 18 of the Public Services Management Employment of Departmental Heads Regulation 2014, “the regulation”.

2.	Further that decision 243/2018 of the 30th August 2018 to reconsider the Statutory business paper 75/2018 and its earlier decision 225/2018 of the 2nd August 2018 to approve to rescind the decision in its entirety was unlawful, illegal null and void for being wholly unreasonable, denial of natural Justice, arbitrary capricious for being in breach of section 18 of the Public Services Management Employment of Departmental Heads Regulation 2014, “the regulation”.

3.	And Further that the decision of the First Defendant dated the 30th August 2018 decision numbered 243/2018 in special meeting number 20/2018 was unlawful, illegal, null and void ab initio for breach of section 18 of the Public Services Management Employment of Departmental Heads Regulation 2014, “the Regulation”. And certiorari lay to bring up that decision dated the 30th August 2018 decision numbered 243/2018 in special meeting number 20/2018 into court for it to be quashed because it was unlawful, illegal null and void ab initio for being in breach of Section 18 of the Regulation. It was wholly unreasonable, denial of natural justice arbitrary capricious, harsh oppressive and offending the principles of legitimate expectation.

4.	Leave has been granted for judicial review 6th May 2019. And these are the background facts for the purposes of this ruling which are established by the evidence tendered by the plaintiff together with that of the defendants. As of the 12th of April 2017 the position of Director General of the National Intelligent Organization (NIO) had become vacant and the plaintiff applied responding to the National Gazette PS G5/2017 advertisement. This resulted in him being one of the eight persons assessed under the fit and proper persons test with accompanying police and medical clearance including the ombudsman Commission. His application was supported by letter dated the 7th November 2017 by the Opposition Leader. The Prime Minister was consulted on the 17th November 2017 because the applicant was the highest scoring of four applicants that came through. And it was resolved by the then Ministerial Executive Appointment Committee (MEAC) in its meeting number 6 recommending to the National Executive Council for his appointment as Director General of the NIO. Prompting preparation of a Statutory Business paper 75/2018 to the NEC on the 24th July 2018 for the appointment of the applicant as the Director General of the NIO by the Minister for Public Service Honourable Elias Kavapore.

5.	On the 2nd August 2018 the First Defendant the National Executive Council met resolving and approving the Statutory Paper No. 75/2018 revoking the acting appointment of Mr. Benjamin Umba as the Director General of the NIO and with advice to the Head of State to appoint the applicant based on the recommendation of the MEAC of the 24th July 2018.

6.	On the 16th August 2018 the National Executive Council agreed to reconsider Statutory Business Paper No. 75/2018 and its decision No. 18/2018 and approve to rescind Decision No. 225/2018 in its entirety.

7.	The plaintiff asserted that he was informed of the NEC decision to appoint him to the said vacant position shortly after the date of the decision. And that he made numerous attempts to obtain a copy of the said decision from the Department of the Prime Minister but was advised that they could not give him a copy for numerous reasons.

8.	This is an important fact which does not come out accompanied as to who informed him that he was appointed by the National Executive Council and when was he so informed. It also does not show as to whom he saw when he made the numerous attempts to obtain a copy of the decision appointing him. Because the decision of the National Executive Council is its property. It is the highest executive decision-making body it comprises the Prime Minister as the head and chairman with empanelment composing of Ministers of Government. The former is established by the Constitution section 142 and therefore it is not a light matter to challenge the decision of the National Executive Council. It is not just any ordinary decision-making body because of its Constitutional status by sections 138, 139, and 141 of the Constitution.  Read with section 18 (5) of the Public Services Management Employment of Departmental heads Regulation 2014 it is a very important decision it is making because there are consequences to the well being and the security of the nation as a whole as provided for under section 10 National Intelligence Organization Act 1984, the NIO Act. And this cannot be emphasized more so by section 8 of the “the NIO Act” which creates the office of the Director General in this way; “(1) There shall be a Director-General of Intelligence who shall be–
(a) appointed by notice in the National Gazette by the Head of State, acting on advice, given after consultation with the Leader of the Opposition; and
(b) appointed for such period as the Head of State, acting on advice, determines, but in the case of an appointee from outside the National Public Service, for a period of not less than five, or more than seven, years; and
(c) the Chief Executive Officer of the Organization; and
(d) the head of the staff of the Organization.
(2).....
(3) For the period of his appointment the Director-General shall be an officer of the Public Service.”
9.	This is very clear language in that the appointment of the director General is by notice in the National Gazette by the Head of State acting on advice. And as here with the input by the Opposition Leader. The facts set out above do not show that there is an appointment by notice in the National Gazette. It means that process has not been effected and so there has not been an appointment made as yet until completion of that process. As it is, it does not take the case of the plaintiff any closer to showing error in the process. Because even by the Regulations the section states that in the event that the NEC approves the MEAC recommendation it shall advice the head of State to make the appointment in the National Gazette which has not been done nor is there evidence of this fact before me. It is not in accordance with what the applicant asserts that he was informed of his appointment. It is a public office carrying out public duty and the appointment is transparent and open in the National Gazette after due process. It will not come into the open without that due process completed because it is not there.

10.	These facts are unresolved in the affidavit of the applicant plaintiff marked as Exhibits P1 and P2 the latter dated the 15th April 2019. Because the affidavit of Grace So-on sworn the 2nd May 2019 and filed 3rd May 2019 and that of the Taies Sansan sworn 14th January 2020 filed 05th February 2020 both in essence confirm the details that are posed in the affidavit of the applicant and establish further that the prerogative was of the National Executive Council as the recommending and principle authority at the pinnacle of the executive arm advising the head of State in all important executive matters of the State as here. Here the advice has not surfaced with the head of State. Elevating gazettal of the appointment made. It was a matter within the discretion of the National Executive Council because no advice has been made to the head of State for the final result as to appointment in the National Gazette as per Section 18 (5) of the Regulations. The totality is that applicant was not appointed as there is no evidence because there was no gazettal of it.

11.	In this regard it is important to heed section 18 (3) of the Regulations, “ 

(3) In considering the recommendations made under Subsection (2), the NEC may – 
(a) approve a recommendation; or 
(b) reject a recommendation and direct the re-advertisement of the position. 

12.	Here the National Executive Council has made two approvals, firstly of the Statutory Paper No. 75/2018 revoking the acting appointment of Mr. Benjamin Umba as the Director General of the NIO and with advice to the Head of State to appoint the applicant based on the recommendation of the MEAC of the 24th July 2018. Secondly on the 16th August 2018 the National Executive Council agreed to reconsider Statutory Business Paper No. 75/2018 and its decision No. 18/2018 and approve to rescind Decision No. 225/2018 in its entirety.

13.	The issue raised is, is there any impropriety or illegality here by these two approvals? In my view to satisfy there must be evidence of undue influence exerted on the decision-making process leading to the result: Kawi v Tetega [2006] PGNC 79; N3100 (26 May 2006). The Public Services Commission made a short list for appointment of Secretary for Justice and submitted to the Minister.  On 26th April 2005 Minister responded to the Public Services Commission advising of the Ombudsman Commission’s position and repeating his "earlier call for you and your Commission to review your short-list to be in line with DPM and CACC recommendations and forward it to my office for consideration by NEC" and looked forward to "receiving the revised short-list of candidate soon". Coupled with these facts it also came out in evidence that subsequent to the first short list PSC received copies of two (2) letters from members of the public. The first letter was from a Mr. John Konumb dated 22 June 2005 who complained of Mr. Kawi’s conduct. The second letter was from an anonymous person dated 6 April 2005, which was unsigned, complaining of Mr. Kawi’s conduct. It is not clear from the evidence if the first letter was considered by the PSC when it compiled the Second Short-list because it was received by PSC on 1 July 2003 as the receipt stamp on the two (2) letters indicate. It is clear the letter from anonymous person was before the PSC when it compiled the Second Short-list. It appears that these two (2) letters were before the PSC at some point when it was asked by the Minister to reconsider the two (2) short-lists.

14.	Consequently, the Public Services Commission reviewed its first short list and on the 10th May 2005 submitted that revised list recommendation to the Minister and in order of preference were; firstly Fred Tomo, second Samson Endehipa and third Josepha Kanawi. Samson Endehipa although he responded to the application was not in the short list. On the 10th June 2005 the Minister wrote to the PSC disputing this second short list suggesting a third short list giving reasons set out above and for the list to be complied in preference; first John Kawi second Fred Tomo and third Josepha Kanawi. On the 21st July 2005 the Public Services Commission wrote to the Minister rejecting the proposed third short list and maintained the second short list.

15.	The application was successfully upheld when the court ordered that the Public Services Commission’s recommendation made on 6 April 2005 and 30 May 2005 under s.31A (1) (d) of the Public Services Management Act 1995 were quashed. And fresh recommendation be compiled under s.31A(1)(d) of the Public Services Management Act 1995 based on the report of the Central Agencies Co-ordination Committee submitted to it on 23 March 2005, which was to be submitted to the Minister’s Office for his submission to the National Executive Council to make a decision on the said recommendation.

16.	That is not the situation from the evidence here. There are merely two approvals which are in accordance with section 18 (3) of the Regulations. And the evidence drawn out is not particularized as in Kawi (supra). And therefore, to go along the path argued would not be substantiated. Nor is it the same situation as in Aeava v National Executive Council [2001] PGNC 62; N2136 (2 August 2001) where the Chief Executive of Pangtel, was suspended by the head of State acting upon the advice of the NEC. There he was holding onto a position and when the head of State acting on the advice of the National Executive Council suspended him the court held that the suspension could not stand because he was not accorded the natural justice and quashed that decision. 

17.	Here the applicant plaintiff is for all intent and purposes a candidate for the consideration of the position of director General of NIO with the others short listed. Yes, a decision recommending his appointment was made but that decision is still subject to the process of law under the Regulations section 18 (5) In the event that the NEC approves a MEAC recommendation:

(a) the NEC shall advise the Head of State to make the appointment in the National Gazette, (and the appointment becomes official only on the publication of the National Gazette); and 
(b) on receipt of the National Gazette the Secretary shall officially inform the appointee and any previous occupant of the appointment; and 
(c) the Secretary shall arrange for any necessary official "handover takeover ceremony" as soon as possible. 

(6) The same procedures apply to Offices of deemed Departmental Head status (other than Provincial Administrator as described under a separate Regulation), established by the Public Services (Management) Act 2014 or as declared by the Head of State on advice. 

18.	It is clear by the evidence before me that there is no gazettal by the head of State making the appointment now official that the applicant is duly appointed as director General of NIO. That is not the evidence. The procedure relied on is not completed and remains outstanding. Hence there is no appointment in accordance and therefore no error of law is committed in that decision. Because upon receipt of the gazettal Secretary shall officially inform the appointee and any previous occupant of the appointment. There is no evidence that this is the case with both Grace So-on’s affidavit sworn the 2nd May 2019 and filed 3rd May 2019 and that of Taies Sansan sworn 14th January 2020 filed 05th February 2020. It means for all intent and purposes the applicant is not formally appointed as Director General of NIO. There is therefore no gazettal of that fact nor is there a handover takeover between the incumbent and the outgoing here. There can be no error where the procedure in law is not circumvented. 

19.	At the outset the concern primarily here is as to the procedure followed and whether that procedure was followed to its end or was it aborted along the way. If it was in what way and what are the consequences in law that follow from it. And referral has been made to section 18 of the Public Services Management Employment of Departmental Heads Regulation 2014 as the basis of procedure here. Section 18 Ministerial Executive Appointments Committee recommendation to the National Executive Council is in the following terms:

“(1) The MEAC shall present the recommendation of the preferred candidate from the shortlist in a standard submission to NEC prepared by the Secretary. 

(2) All other considerations unrelated to the processes described in this Regulation shall have no bearing on the recommendation of the MEAC to the NEC. 

(4) The NEC shall not introduce any new candidate not already included in the MEAC recommendation which would be in breach of Section 193 of the Constitution. 

20.	It is not in issue that the Plaintiff was the first in a list of three and that no doubt he was preferred and recommended to the National Executive Council. Because that is evident from the evidence set out above. There is no introduction of any new candidate to the list made nor is there any evidence of neither tampering of that list nor influence exerted to change that list. But by its discretion the NEC has simply approved to rescind that decision. It is empowered to do that by the law set out above and has done that. There is no error of law committed. Because the intent of the NIO Act must be given heed to it is not just any appointment and the NEC is empowered as it did because it gave heed to the intent of that legislation as did in Kekedo v Burns Philip (PNG) Ltd [1988] PNGLR 122 (13 April 1989). And it is not obligated to provide any reasons for the way it acted because it is a matter and a position holding to the security of the nation as held in Lee & Song Timber (PNG) Co Ltd v Burua, Chairman East New Britain Provincial Forest Management Committee [2003] PGNC 100; N2404 (21 July 2003) where all decision makers are required to provide reasons for their decision except for the security of the nation or where a Statute states otherwise. That is the case here the position by reading of the NIO Act is primarily as to the security of the Nation sections 7, 10, 11, 12, 17, 18, 19, 20, 21, 22,23, 24 and Part VII to name a few within the Act. But the Act is predominately centred on the security of the Nation and the State. It is therefore a very important office not to be compromised in any way and here there is no error of law committed by the NEC in so acting as it has done. It is not necessary to justify with reasons as to the way it has acted. It cannot be harsh or oppressive when the applicant is a candidate as opposed to the person who holds the seat as in Sausau v PNG Harbours Board [2007] PGNC 106; N3255 (13 April 2007). 

21.	Judicial review is concerned with the process and not the substance. It is not concerned with who is the person in the right or wrong, it is concerned with the process to come out with the decision: Asiki v Zurenuoc, Provincial Administrator [2005] PGSC 27; SC 797(28 October 2005). In the present, the process to appoint a director of the National Intelligent Organization. And on the strength of the material here the balance has not in my view being tilted that there has been breach of section 18 of the Public Services Management Employment of Departmental heads Regulation 2014 in the way pleaded by the plaintiff/applicant.

22.	 Judicial review does not lay and has not been made out on the balance required. Because the actions of NEC are not unreasonable, a denial of natural justice, or arbitrary or capricious, nor for that matter harsh, oppressive and offending the principles of legitimate expectation for all the reasons set out above. The case is not likened in all totality to that in Lupari v Somare [2008] PGNC 121; N3476 (22 September 2008). This is not a revocation of an appointment to the post of Director General NIO because there has been no appointment in law by section 18 of the Regulations and Section 8 of the NIO Act. There is no error of law committed. Declaration and Certiorari as a consequence do not lay given.

23.	Accordingly, the Plaintiff’s substantive notice of motion is refused and dismissed with costs to the respondents.
Orders Accordingly.
__________________________________________________________________
B S Lai Lawyers: Lawyer for the Plaintiff/Applicant		
Office of the Solicitor General: Lawyer for the Defendant