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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SC REF NO 3 OF 2018
REFERENCE BY THE PUBLIC SOLICITOR
PURSUANT TO CONSTITUTION, SECTION 19(1)
RE JURISDICTION OF THE PUBLIC SERVICES COMMISSION
Waigani: Salika CJ, Kandakasi DCJ,
Kirriwom J, Cannings J, Yagi J
2019: 26th June, 13th November
CONSTITUTIONAL LAW – Public Services Commission – whether Public Services Commission has jurisdiction to review personnel matters regarding officers or employees of Office of Public Solicitor – Constitution, Division VII.2 (the Public Services Commission), Sections 191 (functions of the Commission), 194 (“personnel matters”).
The Public Solicitor referred a question of constitutional interpretation regarding the jurisdiction of the Public Services Commission to the Supreme Court under Section 19(1) of the Constitution. The question was: “Does the Public Services Commission have jurisdiction under Sections 191 and 194 of the Constitution to review any decision of the Public Solicitor or an officer or employee of the Public Solicitor’s office?” The Public Solicitor argued that the question should be answered no. The Public Services Commission argued that the question should be answered yes.
Held:
(1) The following considerations were taken into account when determining the question: the Office of Public Solicitor is not part of the National Public Service; its officers and employees are not members of the National Public Service; personnel decisions of the Public Solicitor are not sufficiently connected to the National Public Service; the Office of Public Solicitor has a special constitutional status; the Public Services Commission has no general jurisdiction over personnel matters in the public sector; it cannot be discerned that the intention of the Constitutional Planning Committee was that the Public Services Commission would provide an avenue for review of personnel decisions affecting all public servants, but even if that were the intention, the words of the Constitution are so clear that such an intention has been overridden; and the fact that the Public Services Commission has been reviewing personnel decisions of the Public Solicitor for many years without challenge or resistance is of no consequence.
(2) The answer to the question “Does the Public Services Commission have jurisdiction under Sections 191 and 194 of the Constitution to review any decision of the Public Solicitor or an officer or employee of the Public Solicitor’s office?” is no.
Cases Cited
The following cases are cited in the judgment:
Bob Kaupa v Kala Aufa (2015) N6130
Constitutional Reference No 1 of 1978 [1978] PNGLR 345
Ilaiah Begilale v Andrew Moutu (2018) N7549
National Agriculture Quarantine & Inspection Authority v Jerry Tetaga (2009) N4030
Peter Bire v Dr Philip Kereme (2016) N6328
REFERENCE
This was a reference by the Public Solicitor under Section 19 of the Constitution regarding the jurisdiction of the Public Services Commission.
Counsel:
L B Mamu, R Pariwa & E Sasingian for the referrer, the Public Solicitor
R M Simbil for the intervener, the Public Services Commission
13th November, 2019
1. BY THE COURT: The Public Solicitor has referred a question of constitutional interpretation and applicationto the Supreme Court under Section 19(1) (special references to the Supreme Court) of the Constitution. The question concerns the jurisdiction of the Public Services Commission in relation to the Public Solicitor. The question is:
Does the Public Services Commission have jurisdiction under Sections 191 and 194 of the Constitution to review any decision of the Public Solicitor or an officer or employee of the Public Solicitor’s office?
2. There are only two parties to the Reference, the referrer, the Public Solicitor, who argues that the question should be answered no, and the intervener, the Public Services Commission, which argues that the question should be answered yes.
FUNCTIONS OF PUBLIC SERVICES COMMISSION
3. The Public Services Commission is established by Section 190 (establishment of the commission) of the Constitution. It consists of three members appointed by the Head of State on the advice of a Public Services Commission Appointments Committee. Its functions are prescribed by Section 191 (functions of the commission) of the Constitution, which states:
(1) The Public Services Commission shall be responsible, in accordance with an Act of the Parliament, for—
(a) the review of personnel matters connected with the National Public Service; and
(b) the continuous review of the State Services (other than the Papua New Guinea Defence Force), and the services of other governmental bodies, and to advise, either on its own initiative or on request, the National Executive Council and any authority responsible for any or those services, on organizational matters.
(2) The Public Services Commission has such other functions as may be prescribed by or under a Constitutional Law or an Act of the Parliament.
(3) In carrying out its function under Subsection (1)(b), the Public Services Commission—
(a) shall take into account the government policy on a particular matter when advising the National Executive Council and the other authorities responsible for those services; and
(b) shall not have any power to direct or control a State Service or the services of other governmental bodies.
(4) The Public Services Commission shall, in respect of each year, prepare and forward to the Speaker for presentation to the Parliament, a report on the advice it has given during the year to the National Executive Council or other authorities in accordance with Subsection (1)(b) indicating in particular the nature of the advice given and whether or not that advice was accepted.
4. The Public Services Commission thus has two primary functions conferred by Section 191(1):
5. A third primary function is conferred through Sections 191(2) and 193 of the Constitution:
6. This reference concerns the jurisdiction of the Public Services Commission under the first of its three primary functions: the review of personnel matters connected with the National Public Service. “Personnel matters” are defined by Section 194 of the Constitution, which states:
In this Division, "personnel matters" means decisions and other service matters concerning an individual whether in relation to his appointment, promotion, demotion, transfer, suspension, disciplining or cessation or termination of employment (except cessation or termination at the end of his normal period of employment as determined in accordance with law), or otherwise.
CIRCUMSTANCES OF REFERENCE
7. The reference arose after the Public Solicitor dismissed from employment a lawyer within the Office of Public Solicitor. The lawyer sought review by the Public Services Commission of the Public Solicitor’s decision to dismiss him. The Public Services Commission conducted a review and, relying on powers conferred by Section 18 of the Public Services (Management) Act 1995, annulled the decision of the Public Solicitor and directed him to reinstate the lawyer and pay his lost salaries and entitlements.
8. Section 18(3)(c)(ii) allows the Commission, after considering all the facts relative to a matter, to “make a decision to uphold, vary or annul the decision the subject of complaint”, which, under Section 18(3)(d)(i) becomes “binding after a period of 30 days from the date of the decision”.
9. The Public Solicitor resisted the decision of the Public Services Commission,arguing thatit had no jurisdiction over personnel matters in his office. The Public Services Commission was of a different view. In those circumstances the Public Solicitor, being one of the Law Officers of Papua New Guinea and an approved authority under Section 19(3)(c) of the Constitution, made the reference under Section 19(1) of the Constitution, which relevantly provides:
... the Supreme Court shall, on application by an authority referred to in Subsection (3), give its opinion on any question relating to the interpretation or application of any provision of a Constitutional Law, including (but without limiting the generality of that expression) any question as to the validity of a law or proposed law.
ARGUMENTS
10. The arguments for saying that the Public Services Commission lacks jurisdiction were made by the Public Solicitor, Mr Mamu,who submitted that his office is not part of the National Public Service; his officers and employees are not members of the National Public Service; the Public Services Commission has no general jurisdiction over personnel matters in the public sector; the Public Solicitor is a constitutional office-holder and the Office of Public Solicitor is a constitutional institution and there is no law that makes such officers and institutions subject to the jurisdiction of the Public Services Commission.
11. The arguments for the Public Services Commissionwere made by its counsel, Mr Simbil, who submitted that the Commission does have jurisdiction to review personnel matters regarding officers or employees of the Public Solicitor, as lawyers and administrative staff employed by the Public Solicitor are public servants whose terms and conditions of employment are set under the Public Services (Management) Act 1995; personnel decisions of the Public Solicitor have a strong connection with the National Public Service; the Public Services Commission has been reviewing personnel decisions of the Public Solicitor for many years without challenge or resistance; and it was the intention of the Constitutional Planning Committee that the Public Services Commission would exist to provide an avenue for review of personnel decisions affecting all public servants, including officers and employees of constitutional institutions.
DOES THE PUBLIC SERVICES COMMISSION HAVE JURISDICTION TO REVIEW PERSONNEL MATTERS IN THE OFFICE OF PUBLIC SOLICITOR?
12. We have taken account of the following considerations in determining the question, all of which support the Public Solicitor’s position, and suggest that the question should be answered in the negative.
(a)Office of Public Solicitor is not part of the National Public Service
13. The Public Services Commission’s jurisdiction to review personnel decisions is confined to those connected with the National Public Service, which is a discrete State Service established under Section 188(1)(establishment of the state services) of the Constitution, which states:
The following State Services are hereby established:—
(a) the National Public Service; and
(b) the Police Force; and
(c) the Papua New Guinea Defence Force; and
(d) the Parliamentary Service.
14. There is no definition of “National Public Service” in the Constitution, so it is necessary to refer to the law that governs the operation of the National Public Service to determine which government agencies, offices or bodies fall within it. That law is the Public Services (Management) Act 1995, the long title of which prescribes its purpose as being amongst other things “to implement Section 195 ... of the Constitution in relation to the Public Service”.
15. Section 195 (organisation, etc, of the State Services) of the Constitution states:
Subject to this Part, Acts of the Parliament may make provision for or in respect of the State Services, and in particular for and in respect of—
(a) the structures and organizations of the State Services; and
(b) the employment of persons in the State Services; and
(c) the terms and conditions of appointment to, and of employment in, the State Services.
16. Part V of the Public Services (Management) Actis headed “Organisation of the National Public Service”. It contains Section 20 (departments of the Public Service and offices deemed as departments), which states:
(1) There shall be —
(a) a Department of the Prime Minister and National Executive Council; and
(b) a Department of Personnel Management; and
(c) such other Departments and Offices deemed as Departments as are established under Subsection (2).
(2) The Head of State, acting on advice, may, by notice in the National Gazette —
(a) establish a Department or an Office deemed as a Department; or
(b) abolish a Department or deemed Department; or
(c) alter the name of a Department or deemed Department other than the Department of Prime Minister and National Executive Council and the Department of Personnel Management.
(3) In this Act, "Department" includes deemed Department for all purposes.
(4) For purposes of this Act —
(a) the Commissioner General of Internal Revenue; and
(b) the Auditor-General; and
(c) a Provincial Administrator; and
(d) such other officers as specified by the Head of State, acting on advice,
shall, in relation to the officers and employees of, and offices in the organisations of which they are respectively in charge, be deemed to be the Departmental Heads.
17. Therefore the National Public Service consists of:
(a) the Department of the Prime Minister and National Executive Council; and
(b) the Department of Personnel Management; and
(c) such other Departments and Offices deemed as Departments as are established under Section 20(2).
18. The Office of Public Solicitor is neither a Department nor a deemed Department.Therefore it is not part of the National Public Service.
(b) Officers and employees of Public Solicitor are not members of the National Public Service
19. We note that officers and employees in the Office of Public Prosecutor are generally regarded as members of the National Public Service. They acquire that status under Section 3 of the Public Prosecutor (Office and Functions) Act Chapter No 338, which states:
(1) Subject to Subsection (2), any staff (including State Prosecutors) required for the purposes of this Act shall be officers or employees of the Public Service.
(2) Subsection (1) does not prevent any person from being employed, on contract or otherwise, under any other law of Papua New Guinea to perform functions in relation to the Office.
20. There is no equivalent law for the Office of Public Solicitor. Indeed, there is no Organic Law and no Act of the Parliament that prescribes the powers, functions, duties and responsibilities of the Public Solicitor. All those matters are dealt with by the Constitution, Section 177(2) of which provides:
The functions of the Public Solicitor are to provide legal aid, advice and assistance for persons in need of help by him, and in particular—
(a) to provide legal assistance to a person in need of help by him who has been charged with an offence punishable by imprisonment for more than two years; and
(b) notwithstanding the provisions of Section 176(5) (establishment of offices) he shall provide legal aid, advice and assistance to any person when directed to do so by the Supreme Court or the National Court; and
(c) in his discretion in any matter, whether of a criminal or civil nature provided that such assistance shall be—
(i) limited to advice and preparation of documents in any proceedings in respect of which an Act of the Parliament prohibits legal representation of any party to the proceedings; and
(ii) granted in accordance with an order of priorities relative to the resources of the Public Solicitor laid down by an Act of the Parliament.
21. There would seem to be nothing to prevent the Public Solicitor employing a person, including a lawyer, seconded from the National Public Service. However, in the absence of a term of a contract of employment for such a person that any personnel decisions of the Public Solicitor relating to that person were subject to the review jurisdiction of the Public Services Commission, we cannot see how such a situation would create the necessary connection between personnel decisions of the Public Solicitor and the National Public Service. Officers and employees of the Office of Public Solicitor are thus not members of the National Public Service.
(c) Personnel matters in the Office of Public Solicitor are not sufficiently connected to the National Public Service
22. We take judicial notice of the fact that the terms and conditions of employment of officers and employees, including lawyers, in the Office of Public Solicitor are similar to those applying in the National Public Service. We also take notice of the fact that some administrative functions within the Office of Public Solicitor are managed by the Department of Justice and Attorney-General. There is an argument to say that these relationships with the National Public Service give personnel decisions of the Public Solicitor a connection to the National Public Service, for the purposes of Section 191(a) of the Constitution. We are not persuaded by the argument.
23. Our understanding is that the terms and conditions of employment of officers and employees of the Office of Public Solicitor are set by the Public Solicitor at his discretion. The Public Solicitor is under no legal or administrative obligation to adopt the terms and conditions applying in the National Public Service.
24. The fact that the terms and conditions are essentially the same and that the Public Solicitor has adopted disciplinary procedures modelled on those found in Part XIV (discipline) of the Public Services (Management) Act 1995 does not give rise to a sufficient connection between personnel decisions of the Public Solicitor and the National Public Service.
(d): Office of Public Solicitor has a special constitutional status
25. The Public Solicitor is a constitutional office-holder by virtue of Section 221 (definitions) of the Constitution and has security of tenure and guaranteed resources and facilities under Part X (constitutional office-holders and constitutional institutions) of the Constitution. The Public Solicitor enjoys a high degree of independenceby virtue of Section 176(5) (establishment of offices) of the Constitution, which states:
Subject to Section 177(2) (functions of the Public Prosecutor and the Public Solicitor), in the performance of his functions under this Constitution the Public Solicitor is not subject to direction or control by any person or authority.
26. The Office of Public Solicitor is not a “governmental body” and stands outside the investigative jurisdiction of the Ombudsman Commission under Section 219(1) of the Constitution and the Organic Law on the Ombudsman Commission(Constitutional Reference No 1 of 1978 [1978] PNGLR 345).
27. It is consistent with the principle of constitutional independence of the Public Solicitor for his decisions on personnel matters to be beyond the review jurisdiction of the Public Services Commission. Given the degree of independence enjoyed by the Public Solicitor there would need to be an express conferment of jurisdiction on the Public Services Commission for it to be allowed to intrude into his independence. But there is none.
(e)Public Services Commission has no general jurisdiction over personnel matters in the public sector
28. Labelling lawyers and other officers and employees in the Office of Public Solicitor as “public servants” does not assist in determining the jurisdiction of the Public Services Commission. The term “public servants” is not a legal term. It is a colloquialism. It can refer to any person employed by a public body.
29. In any event, the Public Services Commission has no general jurisdiction regarding personnel decisions affecting public servants. Nor does it have any general jurisdiction over personnel decisions in the public sector. It is a creature of the Constitution and jurisdiction is circumscribed by the Constitution.
30. That the Public Services Commission is a constitutional institution with limited, specific jurisdiction, and that it does not have a general, supervisory jurisdiction over the whole of the public sector, is an important constitutional construct that has been applied by the National Court in a number of cases. For example:
31. We endorse the approach taken by the National Court in all those cases, which demonstrate the fact that the Public Services Commission does not have a general review jurisdiction over personnel decisions made in the public sector.
(f)Constitutional Planning Committee recommendations do not support the PSC position
32. Mr Simbil submitted that it was the intention of the Constitutional Planning Committee that the Public Services Commission would provide an avenue for independent review of personnel decisions affecting all public servants, irrespective of which public office in which they served. Mr Simbil, however, could not point to any particular provision or recommendation in Chapter 12 (the Public Services) of the Final Report of the Constitutional Planning Committee which addressed the question of whether the Commission would have a review jurisdiction over personnel decisions of constitutional office-holders, such as the Public Solicitor. There is none.
33. Even if it were accepted that that it was the recommendation of the Constitutional Planning Committee that the Public Services Commission would have such powers, the words of the Constitution are so clear that we would have to conclude that such an intention has been overridden by the Constitution.
(g) Lack of past challenge is not a bar to present challenge
34. Mr Simbil pointed out that the Commission has been reviewing personnel decisions of the Public Solicitor for many years without challenge or resistance, and no good reason had been given for the change in attitude.
35. We are not at all impressed by that argument. There are many possible reasons the issue of jurisdiction was not raised in the past: ignorance, apathy, expediency, misinterpretation of the Constitution, being some of them. Whatever the reason none of them constrain the Public Solicitor in the position that he has taken in the present case. And none of them constrain the Court in its interpretation of the Constitution.
36. The lack of any past challenge by the Public Solicitor to the jurisdiction of the Public Services Commission is not a bar to the present challenge. It is not a relevant consideration in determining the jurisdiction of the Public Services Commission.
Answer
37. Having considered the arguments of the referrer and the intervener, and taken into account all the considerations outlined above, the question – does the Public Services Commission have jurisdiction to review personnel decisions of the Public Solicitor? – must be answered in the negative.
ORDER
38. We make the following order to give effect to the above reasons for decision:
| Question | Answer |
| Does the Public Services Commission have jurisdiction under Sections 191 and 194 of the Constitution to review any decision of the Public Solicitor or an officer or employee of the Public Solicitor’s office? | No |
Judgment accordingly.
____________________________________________________________
Public Solicitor: Lawyer for the Referrer
R M Simbil: Lawyer for the Intervener
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